HomeMy WebLinkAboutNewland Condominium Project, Monarch Walk - Final Tract Map (2) NOTICE OF COMPLIANCE WITH CONDITIONS
ON TRACT/PARCEL MAP AND AUTHORIZATION
FOR RELEASE FOR RECORDING
TO: CITY CLERK DATE: gl-5A
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
TRACT NO. /7!�3 D
PARCEL MAP NO.
PARK AND RECREATION FEES PAID: ❑ YES $ �G� 00 S— /)(NO
DEVELOPER: ��f��l'Sp� �`Yj,, a-k Gj
for:
Scott Hess
Director of Community Development
CITY OF HUNTINGTON BEACH
INTERDEPARTMENTAL COMMUNICATION
TO: Patty Esparza, Deputy City Clerk
FROM: Bob Milani, Senior Civil Engineer
DATE: July 15, 2016
SUBJECT: Tract Map 17930
THE ATTACHED ORIGINAL TRACT MAP IS READY FOR RECORDATION.
Please Contact the Title Company listed below and request that they pick-up the attached Tract Map.
At the time of pick-up please forward a copy of this memo and the attached Tract Map and request that
they obtain all necessary County of Orange signatures and record it for their client.
Additionally, the enclosed Declaration of Covenants, Conditions and Restrictions shall be recorded
concurrently with the Tract Map with a recorded copy provided to the City.
Title Company name: First American Title Company
Title Company Street Address: 1250 Corona Pointe Court, Suite 200
Title Company City, State, and Zip Code: Corona, CA 92879
Title Officer's name: Hugo Tello (htello(&firstam.com)
Title Officer Telephone Number: (951) 256-5883 (direct)
Commitment/Order Number: Order No. 5137678
Client: The Olson Company,John Reekstin
Address: 23010 Old Ranch Parkway, Ste. 100
Seal Beach, CA 90740
(949) 526-8815
Engineer: IDS Civil Engineers, Peter Gambino, R.C.E.
(949) 387-8500
Regarding Tract 17930
Note: To the City Clerk's Office: A Planning Department Release Slip must be received prior to
release of this Tract Map to the Title Company for recording.
Upon the City Clerks receipt of the recorded copy of documents, please send a copy of the Tract Map to all contacts
listed below and a copy of the recorded CC&R's to the City contacts only:
1. County of Orange
Resources& Development Management Department
300 N. Flower Street
Santa Ana, CA 92702-4048
Attn: Lily Sandberg, Orange County Surveyor's Office 714-967-0846
2. UB Planning Department Attn: Kimo Burden 714-536-5438
3. HB Public Works Department Attn: Bob Milani 714-374-1735
® City of Huntington Beach
2000 Main Street ® Huntington Beach, CA 92648
(714) 536-5227 ® www.huntingtonbeachca.gov
Office ®f the City Clerk
/ Robin Estanislau, City Clerk
August 4, 2016
First American Title Company
1250 Corona Pointe Courte, Suite 200
Corona, CA 92879
Attention: Hugo Tello
(951) 256-5883
Re: Order No. 513678—Tract Map No. 17930
The Olson Company
The City Clerk's Office has prepared Final Tract Map No. 17930 (Newland Condominium Project, Monarch
Walk) to be recorded with the County.
Please have a copy of the recorded map returned to the Steve Bogart, Public Works Department, City of
Huntington Beach, 2000 Main Street, Huntington Beach, California 92648.
Robin Estanislau, CIVIC
City Clerk
RE:pe
Enclosure
Received by: s3 A,,,
Date: ".� M,
Sister Cities: Anjo, Japan ♦ Waitakere, New Zealand
Recording requested by:
When recorded return to:
THE OLSON COMPANY
Attn: Ruby A. Johnson
3010 Old Ranch Parkway, Ste. 100
Seal Beach, CA 90740
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
MONARCH WALK
A Residential Condominium Project
NOTE: AS MORE FULLY DESCRIBED IN THIS DECLARATION OR OTHERWISE
PROVIDED BY DECLARANT, IN THE EVENT OF ANY DISPUTE (S) ARISING
HEREUNDER, OR RELATING TO THE DESIGN AND/OR CONSTRUCTION OF THE
PROJECT, SUCH DISPUTE(S) SHALL BE SUBMITTED TO A NONADVERSARIAL
PROCEDURE AND IF NOT RESOLVED, SUBMITTED THEREAFTER TO AN ALTERNA-
TIVE DISPUTE RESOLUTION PROCEDURE (e.g. , BINDING ARBITRATION) , AND
AS A RESULT THEREOF, SUCH DISPUTE (S) WILL NOT BE LITIGATED IN A
COURT OR BEFORE A JURY. ANY PERSON ACCEPTING PROPERTY IN THIS
DEVELOPMENT KNOWINGLY AND VOLUNTARILY AGREES TO BE BOUND BY A
PROCEDURE WHICH DOES NOT INCLUDE A RIGHT TO A JURY AND KNOWINGLY
AND VOLUNTARILY CONSENTS TO THE PROJECT HOMEOWNERS ASSOCIATION' S
AGREEMENT TO BE BOUND BY SUCH PROCEDURE.
IF THIS PROCEDURE IS UNACCEPTABLE, AN INDIVIDUAL OR ENTITY SHOULD j
NOT ACQUIRE PROPERTY IN THIS PROJECT.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . 2
1 . Architectural Guidelines . . . . . . . . . . . 2
2 . Architectural Review Committee . . . . . . . . 2
3 . Articles . . . . . . . . . . . . . . . . . . . . 2
4 . Assessments . . . . . . . . . . . . 2
S . Best Management Practices 3
6 . Board . . . . . . . . . . . . . . . . . . . . 4
7 . By-Laws . . . . . . . . . . . . . . . . . . . . 5
8 . CalBRE . . . . . . . . . . . . . . . . . . . . 5
9 . City . . . . . . . . . . . . . . . . . . . . . 5
10 . Common Area . . . . . . . . . . . . . . . . . . 5
11 . Common Expenses . . . . . . . . . . . . . . . . 5
12 . Common Property . . . . . . . . . . . . . . . . 6
13 . Condominium . . . . . . . . . . . . . . . . . 6
14 . Condominium Plan . . . . . . . . . . . . . . . 6
15 . Condominium Unit . . . . . . . . . . . . . . . 6
16 . Corporation . . . . . . . . . . . . . . . . . . 7
17 . Corporation Property . . . . . . . . . . . . . 7
18 . County . . . . . . . . . . . . . . . . . . . . 8
19 . Declarant . . . . . . . . . . . . . . . . . . . 8
20 . Declaration . . . . . . . . . . . . . . . . . . 8
21 . Dispute . . . . . . . . . . . . . . . . . . . . 8
22 . Entitlements from City . . . . . . . . . . . . 8
23 . Exclusive Use Corporation Property . . . . . . 9
24 . FHLMC . . . . . . . . . . . . . . . . . . . . . 9
25 . FNMA . . . . . . . . . . . . . . . . . . . . . 9
26 . GNMA . . . . . . . . . . . . . . . . . . . . . 9
27 . Include, Including . . . . . . . . . . . . . . 9
28 . Improvements . . . . . . . . . . . . . . . . . 9
29 . Limited Warranty . . . . . . . . . . . . . . 10
30 . Local Government Agency . . . . . . . . . . . . 10
31 . Lot . . . . . . . . . . . . . . . . . . . . . . 10
32 . Maintain, Maintenance . . . . . 10
33 . Maintenance Guidelines; Maintenance
Manual; Maintenance Obligations . . . . . . . . 10
34 . Member . . . . . . . . . . . . . . . . . . . . 11
35 . Mortgage . . . . . . . . . . . . . . . . . . . 11
36 . Mortgagee . . . . . . . . . . . . . . . . . . . 11
37 . Mortgagor . . . . . . . . . . . . . . . . . . . 11
38 . Notice and Hearing . . . . . . . . . . . . . . 11
39 . Owner . . . . . . . . . . . . . . . . . . . . . 11
4 0 . Property . . . . . . . . . . . . . . . . . . . 12
41 . Project . . . . . . . . . . . . . . . . . . . . 12
42 . PWC . . . . . . . . . . . . . . . . . . . . . 12
43 . Residence . . . . . . . . . 12
44 . Rules and Regulations . . . . . . . . . . . . . 12
45 . VA/FHA . . . . . . . . 12
46 . Water Quality Management Plans . . . . . . . . 12
47 . Interpretation . . . . . . . . . . . . . . . . 13
48 . Application of Definitions . . . . . . . . . . 13
50018.154-24590.FCM 051816 �1-�
ARTICLE II INTRODUCTION TO MONARCH WALK . . . . . . . . . . . . 14
1 . General Plan of Development . . . . . . . . . . 14
2 . Membership in Corporation . . . . . . . . . . . 14
3 . Declarant' s Use of Private Vehicular
Drives and Utilities . . . . . . . . . . . . . 14
4 . Post Tension Slabs . . . . . . . . . . . . . . 15
5 . Development Control . . . . . . . . . . . . . . 15
6 . Non-Liability of Declarant . . . . . . . . . . 17
ARTICLE III DESCRIPTION OF THE CONDOMINIUMS . . . . . . . . . . 17
1 . Condominium Unit . . . . . . . . . . . . . . . 17
2 . Presumption of Boundaries of
Condominium Units . . . . . . . . . . . . . . . 18
3 . Common Area . . . . . . . . . . . . . . . . . . 18
4 . Exclusive Use Corporation Property . . . . . . 18
5 . Undivided Fractional Fee Interest
in Common Area . . . . . . . . . . . . . . . . 21
6 . Easements Over Corporation Property . . . . . . 21
7 . Components of Condominium Ownership . . . . . . 21
8 . Condominium Numbering . . . . . . . . . . . . . 21
9 . Guest Parking Areas . . . . . . . . . . . . . . 22
ARTICLE IV RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE CORPORATION PROPERTY . . . . 22
1 . Owners' Easements . . . . . . . . . . . . . . . 22
2 . Limitations on Owners' Easement Rights . . . . 22
3 . Delegation of Corporation Property
Use Rights . . . . . . . . 24
4 . Easements for Vehicular Traffic . . . . . . . . 24
5 . Easements for Solar Panels and
Air Conditioners . . . . . . . . . . . . . . . 25
6 . Easements for Utilities . . . . . . . . . . . . 25
7 . Easements for Maintenance of the
Corporation Property by the Corporation . . . . 27
8 . Easements for Clustered Mailboxes . . . . . . . 28
9 . Easements Over Sidewalks . . . . . . . . . . . 28
10 . Easements for Drainage . . . . . . . . . . . . 28
11 . Easement for Area Drains . . . . . . . . . . . 29
12 . Easements for Construction and Sales . . . . . 29
13 . Easements for Master Antennae, Cable
Television and Alarm System Cabling . . . . . . 30
14 . Reservation of Construction Rights
by Declarant . . . . . . . . . . . . . . . . . 30
15 . Easement for Public Service Uses . . . . . . . 30
16 . Control of Corporation Property . . . . . . . . 31
17 . Easements for Encroachments . . . . . . . . . . 32
18 . Party Fence/Wall Easements . . . . . . . . . . 32
19 . Reservation of Easements for
Inspection, Maintenance, and Repair . . . . . . 33
20 . Other Easements . . . . . . . . . . . . . . . . 33
50018.154-24590.FCM 051816 (i i
ARTICLE VIII EFFECT OF NONPAYMENT OF ASSESSMENTS :
REMEDIES OF THE CORPORATION . . . . 67
1 . Effect of Nonpayment of Assessments :
Remedies of the Corporation . . . . . . . . . . 67
2 . Notice of Delinquent Assessments . . . . . . . 68
3 . Foreclosure Sale . . . . . . . . . . . . . . . 68
4 . Curing of Default . . . . . . . . . . . . . . . 69
5 . Cumulative Remedies . . . . . . . . . . . . . . 69
6 . Mortgagee Protection . . . . . . . . . . . 69
ARTICLE IX USE RESTRICTIONS . . . . . . . . . . . . . . . . . . 69
1. Private Dwelling . . . . . . . . . . . . . . . 69
2 . Common Property Use . . . . . . . . . . . . . . 70
3 . Conduct Affecting Insurance . . . . . . . . . . 70
4 . Liability for Damage to the
Common Property . . . . . . . . . . . . . . . . 70
5 . Signs . . . . . . . . . . . . . . . . . . . . . 70
6 . Maintenance of Animals . . . . . . . . . . . . 71
7 . Quiet Enjoyment . . . . . . . . . . . . . . . . 72
8 . Structural Changes . . . . . . . . . . . . . . 72
9 . Improvements . . . . . . . . . . . . . . . . . 73
10 . Window Coverings . . . . . . . . . . . . . . . 73
11. Commercial Activity . . . . . . . . . . . . . . 73
12 . Parking and Vehicular Restrictions . . . . . . 74
13 . Regulation of Parking . . . . . . . . . . . . . 76
14 . Compliance With Management Documents . . . . . 76
15 . Solar . . . . . . . . . . . . . . . . . . . . . 76
16 . Antenna Restriction . . . . . . . . . . . . . . 78
17 . Other Structures . . . . . . . . . . . . . . . 79
18 . Water Softeners . . . . . . . . . . . . . . . . 79
19 . Leasing . . . . . . . . . . . . . . . . . . . . 79
20 . Drilling . . . . . . . . . . . . . . . . . . . 80
21 . Trash . . . . . . . . . . . . . . . . . . . . . 80
22 . Exemption of Declarant . . . . . . . . . . . . 80
23 . No Easements For View Purposes; Disclaimer . . 81
24 . Screen Doors . . . . . . . . . . . . . . . . . 82
25 . Pollutant Control . . . . . . . . . . . . . . . 82
26 . Corporation Property . . . . . . . . . . . . . 83
27 . Rights of Disabled . . . . . . . . . . . . . . 84
28 . Water Beds . . . . 84
29 . Automatic Fire Sprinkler and Alarm System . . . 84
30 . No Use of Hazardous Materials . . . . . . . . . 85
31 . Noise . . . . . . . . . . . . . . 85
32 . Sound Control Engineering . . . . . . . . . . . 86
33 . Addresses . . . . . 87
34 . No Warranty of Enforceability . . . . . . . . . 87
ARTICLE XXI REPAIR AND MAINTENANCE . . . . . . . . . . . . . . . 87
1 . Repair and Maintenance by Corporation . . . . . 87
2 . Maintenance Manual . . . . . . . . . . . . . . 91
3 . Project Inspections . . . . . . . . . . . . . . 92
4 . Maintenance of Project Subject to
Construction Easement . . . . . . . . . . . . . 93
50018.154-24590.FCM 051816 iv
ARTICLE V THE CORPORATION . . . . . . . . . . . . . . . . . . 33
1 . Membership . . . . . . . . . . . . . . . . . . 33
2 . Voting Rights . . . . . . . . . . . . . . . . . 34
3 . Vesting of Voting Rights . . . . . . . . . . . 35
4 . Suspension of Voting Rights . . . . . . . . . . 35
5 . Transfer . . . . . . . . . . . . . . . . . . . 35
6 . Record Dates . . . . . . . . . . . . . . . . . 35
ARTICLE VI POWERS AND DUTIES OF THE CORPORATION . . . . . . . . 35
1 . Management Body . . . . . . . . . . . . . . . . 35
2 . Powers . . . . . . . . . . . . . . . . . . . . 36
3 . Duties . . . . . . . . . . . . . . . . . . . . 38
4 . Discretionary Powers . . . . . . . . . . . . . 47
5 . Notification by Corporation of Defects . . . . 47
6 . Awards Rendered in Construction
Defects Disputes . . . . . . . . . . . . . . . 48
7 . Special Meeting of the Corporation
for Construction Defect Disputes . . . . . . . 48
8 . Delegations of Duties . . . . . . . . . . . . . 48
9 . Right of Entry for Emergency . . . . . . . . . 48
10 . Right of Entry for Repairs . . . . . . . . . . 48
11. Limitations on Board Action . . . . . . . . . 48
12 . Licenses, Easements and Rights-of-Way . . . . . 50
13 . New Improvements . . . . . . . . . . . . . . . 50
14 . Corporation Rules and Regulations . . . . . . . 50
15 . Nonliability and Indemnification . . . . . . . 51
16 . Arbitration of Disputes . . . . . . . . . . . . 52
18 . Mortgage Interest and Other Encumbrances
to Take Subject to Power of Attorney . . . . . 60
ARTICLE VII ASSESSMENTS . . . . 60
1 . Creation of the Lien and Personal
Obligation of Assessment . . . . . . . . . . . 60
2 . Purpose of Regular Assessments :
Levy and Collection . . . . . . . . . . . . . . 60
3 . Regular Assessments - Basis . . . . . . . . . . 61
4 . Special Assessments for Capital Improvements 63
5 . Compliance Assessments . . . . . . . . . . . . 63
6 . Notice of Increase in Assessments . . . . . . . 64
7 . Special Benefit Assessments . . . . . . . . . . 64
8 . Date of Commencement of Regular
Assessments : Due Dates . . . . . . . . . . . . 65
9 . Collection of Assessments . . . . . . . . . . . 65
10 . Certification of Payment . . . . . . . . . . . 65
11. Delivery by Owner . . . . . . . . . . . . . . . 65
12 . Delivery of Statement . . . . . . . . . . . . . 66
13 . Delivery by Declarant . . . . . . . . . . . . . 66
14 . Reserves . . . 66
15 . Offsets and Waiver Prohibited . . . . . . . . . 67
16 . Exempt Property . . . . . . . . . . . . . . . . 67
17. Capitalization of Corporation . . . . . . . . . 67
50018.154-24590.FCM 051816 1 1 1
S . Repair and Maintenance by Owner . . . . . . . . 93
6 . Damage and Destruction Affecting
a Condominium. . . . . . . . . . . . . . . . . 96
7 . Levy of Compliance Assessments . . . . . . . . 97
8 . Maintenance of Public Utilities . . . . . . . . 98
ARTICLE XI ENVIRONMENTAL AND OTHER DISCLOSURES
AND REQUIREMENTS 98
1 . Environmental Requirements . . . . . . . . . . 98
ARTICLE XII ARCHITECTURAL REVIEW - APPROVAL . . . . . . . . . . 100
1 . Exemptions From Architectural Review . . . . . 100
2 . Architectural Review . . . . . . . . . . . . . 100
3 . Architectural Review Committee . . . . . . . . 100
4 . Meetings of the Architectural
Review Committee . . . . . . . 101
5 . Architectural Approval - Review of I
Plans and Specifications . . . . . . . . . . . 101
6 . Decisions of the Architectural
Review Committee . . . 103
7 . Submittal to Public Agencies - Right of
Architectural Review Committee to Review . . . 103
8 . Conflicts Between Governmental Agencies
and Architectural Review Committee . . . . . . 104
9 . No Waiver of Future Approvals . . . . . . . . . 104
10 . Compensation of Members . . . . . . . . . . . . 104
11 . Variances . . . . 104
12 . Inspection of Work . . . . . . . . . . . . . . 105
13 . Non-Liability of Architectural Review
Committee Members . . . . . . . . . . . . . . . 105
14 . Appeal . . . . . . . . . . . . . . . . . . . 105
15 . Approval of City . . . . . . . . . . . . . . . 105
ARTICLE XIII DAMAGE OR DESTRUCTION TO
THE CORPORATION PROPERTY . . . 106
1 . Election to Restore Corporation Property . . . 106
2 . Election Not to Restore Corporation
Property . . . . . . . . . . . . . . . . . . . 107
3 . Excess Insurance Proceeds . . . . . . . . . . . 107
ARTICLE XIV CONDEMNATION . . . . . . . . . . . . . . . . . . . . 108
1 . Distribution of Awards . . . . . . . . . . . . 108
2 . Board of Directors as Attorney-in-Fact . . . . 108
ARTICLE XV COVENANT AGAINST PARTITION . . . . . . . . . . . . . 108
1 . General Covenant Against Partition . . . . . . 108
2 . Judicial Partition of the Project . . . . . . . 108
3 . Board of Directors' Power of Sale in
Event of Judicial Partition . . . . . . . . . . 109
50018.154-24590.FCM 051816 (v
ARTICLE XVI INSURANCE . . . . . . . . . . . . . . . . . . . . . 109
1 . Insurance Coverage Required to be
Maintained by Corporation . . . . . . . . . . . 109
2 . Optional Insurance Coverage That May
Be Obtained By Corporation . . . . . . . . . . 112
3 . Notice of Cancellation of Insurance
Maintained by Corporation . . . . . . . . . . . 112
4 . Board' s Review of Insurance Coverage
Maintained by Corporation . . . . . . . . . . . 112
5 . Owners' Waiver and Release of Claims . . . . . 112
6 . Corporation' s Rights and Obligations
With Respect to Premiums, Proceeds
and Settlement . . . . . . . . . . . . . . 113
7 . Rights and Duties of Owners to Insure . . . . . 113
8 . Trustee for Policies Maintained by
Corporation . . . . . . . . . . . . . . . . . . 113
9 . Mortgage Clause . . . . . . . . . . . . . . . . 114
10 . Compliance With Requirements of
FHLMC, FNMA and VA/FHA . . . . . . . . . . . . 114
11. Required Waiver . . . . . . . . . . . . . . . . 116
12 . Annual Notification of Insurance . . . . . . . 116
ARTICLE XVII MORTGAGEE PROTECTION . . . . . . . . . . . . . . . . 117
1 . Mortgagee Protection Provisions . . . . . . . . 117
2 . Violation of Mortgagee Protection
Provisions . . . . . . . . . . . . . . . . . . 121
3 . Effect of Amendments . . . . . . . . . . . . . 122
4 . Amendments to Conform With Mortgagee
Requirements . . . . . . . . . . . . . . . . . 122
ARTICLE XVIII ENFORCEMENT OF BONDED OBLIGATIONS . . . . . . . . . 122
1 . Enforcement of Bonded Obligations . . . . . . . 122
ARTICLE XIX VETERANS AFFAIRS PROVISIONS . . . . . . . . . . . . 123
1 . Condominium Ownership . . . . . . . . . . . . . 123
2 . Condominium Documentation . . . . . . . . . . . 123
3 . Amendments . . . . . . . . . . 124
4 . Description of the Condominium Units,
Common Area, and Corporation Property . . . . . 124
5 . Corporation' s Right of Termination
of Certain Contracts . . . . . . . . . . . . . 124
6 . Corporation' s Right of Entry and
Other Rights . . . . . . . . . . . . . . . . . 124
7 . Assessments . . . . . . . . . . . . . . . . . . 125
8 . Reserves and Working Capital . . . . . . . . . 125
9 . Voting Rights . . . . . . . . . . . . . . . . . 125
10 . Easements . . . . . . . . . . . . . . . . . . . 126
11. Restrictions on Alienation . . . . . . . . . . 126
12 . Rights of Action . . . . . . . . . . . . . . . 126
13 . Miscellaneous Requirements . . . . . . . . . . 126
50018.154-24590.FCM 051816 vi
ARTICLE XX GENERAL PROVISIONS . . . . . . . . . . . . . . . . . 129
1 . Enforcement . . . . . . . . . . . . . . . . . . 129
2 . Severability . . . . . . . . . . . . . . . . . 131
3 . Term . . . . . . . . . . . . . . . . . . . . . 131
4 . Construction . . . . . . . . . . . . . . . . . 131
S . Singular Includes Plural . . . . . . . . . . . 131
6 . Amendments . . . . . . . . . . . . . . . . . . 131
7 . Encroachments . . . . . . . . . . . . . . . . . 134
8 . Notices . . . . . . . . . . . . . . . . . . . . 135
9 . Attorneys' Fees . . . . . . . . . . . . . . . . 135
10 . Mergers or Consolidations . . . . . . . . . . . 135
11 . Notice of Procedures . . . . . . . . . . . . . 135
12 . DECLARANT' S ELECTION NOT TO ENGAGE IN
THE NONADVERSARIAL PROCEDURE PROVIDED BY
THE RIGHT TO REPAIR LAW . . . . . . . . . . . . 136
13 . No Enhanced Protection Agreement . . . . . . . 136
14 . Corporation Property Claims . . . . . . . . . . 136
15 . Maintenance Standards . . . . . . . . . . . . . 136
16 . Agent . . . . . . . . . . . . . . . . . . . . . 137
17 . No Representations or Warranties . . . . . . . 137
18 . Exhibits . . . . . . . . . . . . . . . . . . . 137
19 . Project Disclosures . . . . . . . . . . . . . . 137
20 . Priorities and Inconsistencies . . . . . . . . 140
21 . Declarant' s Representative . . . . . . . . . . 141
22 . Compliance with Requirements of
FHLMC, FNMA, and VA/FHA . . . . . . . . . . . . 141
EXHIBITS :
Exhibit A Legal Description of the Property
Exhibit B Sample Form of Limited Warranty
Exhibit C Maintenance Matrix
Exhibit D Corporation Maintained Storm Drain Facilities
Exhibit E Corporation Maintained Sewer Facilities
Exhibit F Corporation Maintained Water Facilities
Exhibit G Corporation Maintained Walls and Fences
Exhibit H No Parking Areas
Exhibit I Corporation Maintained Landscape Areas
50018.154-24590.FCM 051816 (vl i
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
MONARCH WALK
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRIC-
TIONS, AND RESERVATION OF EASEMENTS FOR MONARCH WALK is made this
day of 1 201 , by OLSON - HUNTINGTON BEACH 3 , LLC, a
California limited liability company (hereinafter referred to as
the "Declarant" ) .
W I T N E S S E T H:
A. Declarant owns that certain real property located in
the City of Huntington Beach, County of Orange, State of Califor-
nia, more particularly described on Exhibit "A" attached hereto
(hereinafter referred to as the "Property") .
B . Declarant desires to subdivide Lot 1 of Tract No .
17930, as authorized by Section 66427 of the California Government
Code, into "condominiums, " as defined in Section 783 of the
California Civil Code, and to develop the Property as a common
interest development, more particularly described in Section 4125
of the California Civil Code as a "condominium project"
(hereinafter referred to as the "Project" ) , as more particularly
described below.
C. Declarant deems it desirable to impose a general
plan for the development, maintenance, improvement, protection,
use, occupancy and enjoyment of the Project, and to establish,
adopt and impose covenants, conditions, restrictions, easements,
equitable servitudes, liens and charges (hereinafter referred to as
the "Protective Covenants" ) upon the Project for the, purpose of
enforcing, protecting and preserving the value, desirability and
attractiveness of the Project .
D. Declarant deems it desirable for the efficient
enforcement, protection and preservation of the value, desirability
and attractiveness of the Project to create a corporation which
shall be delegated and assigned the powers of administering and
enforcing the Protective Covenants .
E . Monarch Walk Corporation, a California nonprofit,
mutual benefit corporation, has been or will be incorporated. under
the laws of the State of California for the purpose of exercising
the aforesaid powers.
50018.154-24590.FCM 051816 -1
F. Declarant intends to convey the Property subject to
the Protective Covenants set forth hereinbelow.
NOW, THEREFORE, pursuant to Sections 4000, et seq. , of
the California Civil Code, Declarant declares that it does hereby
establish a general plan for the development, maintenance, care,
improvement, protection, use, occupancy, management and enjoyment
of the Project, and that all or any portion of the Project shall be
held, sold, conveyed, encumbered, hypothecated, leased, used,
occupied and improved, subject to the protective covenants set
forth herein ( "Protective Covenants") . Each and all of the
Protective Covenants shall run with the Project, and shall be
binding upon all persons having any right, title or interest in the
Project, or any portion thereof, their heirs, successors and
assigns, and shall inure to the benefit of and be binding upon De-
clarant, its successors and assigns, all subsequent owners of all
or any portion of the Project, together with their grantees, heirs,
executors, administrators, devisees, successors and assigns .
ARTICLE I
DEFINITIONS
Section 1 . "Architectural Guidelines" shall mean and
refer to those certain architectural standards , landscape standards
and other general policies, procedures and criteria which may be
adopted by the Board pursuant to this Declaration for use by the
Architectural Review Committee in reviewing plans and specifica-
tions for proposed Improvements to an Owner' s Condominium (e .g. ,
Exclusive Use Corporation Property) . The Architectural Guidelines
are general guidelines and may be amended from time to time by a
majority of the Board. A copy of the Architectural Guidelines may
be obtained from the Architectural Review Committee .
Section 2 . "Architectural Review Committee" shall mean
and refer to the committee created pursuant to the Article herein
entitled "Architectural Review - Approval . "
Section 3 . "Articles" shall mean and refer to the Ar-
ticles of Incorporation of Monarch Walk Corporation, as filed in
the Office of the Secretary of State of the State of California, as
such Articles may be amended, from time to time .
Section 4 . "Assessments" shall be used as a generic
term which shall mean and refer to the following:
(a) "Regular Assessment" shall mean and refer to
the annual charge against each Owner and his respective
Condominium representing a portion of the Common Expenses of
the Corporation;
50018.154-24590.FCM 051816 -2
(b) "Compliance Assessment" shall mean and refer to
the personal charge against an Owner representing the costs
incurred by the Corporation to repair any damage to the Common
Property (as defined below) for which such Owner (or any
member of his family, or his guests, invitees, tenants or
lessees) was responsible, the costs incurred by the Corpora-
tion to bring such Owner and his Condominium into compliance
with this Declaration, and/or any amount due the Corporation
based upon disciplinary proceedings against an Owner in ac-
cordance with this Declaration, or any amount due the Corpora-
tion to reimburse the Corporation for administrative costs
attributable to an Owner as provided herein;
(c) "Special Assessment" shall mean and refer to
the charge against an Owner and his respective Condominium
representing a portion of the cost of reconstructing any
damaged or destroyed portion or portions of the Common
Property, of constructing or installing any capital improve-
ments to the Common Property, or of taking any extraordinary
action for the benefit of the Common Property or the member-
ship of the Corporation, pursuant to the provisions of this
Declaration. In addition, Special Assessment shall mean and
refer to a reasonable fine or penalty assessed by the Board,
plus interest and other charges on such Special Assessment as
provided for herein; and
(d) "Special Benefit Assessment" shall mean and
refer to a component of the Regular Assessment levied by the
Corporation against an Owner and his respective Condominium to
cover the expenses incurred by the Corporation in the
operation, maintenance, repair and/or funding of reserves for
a portion of the Project designated by Declarant or the Board
as a "Special Benefit Area, " which expenses are allocable only
to the Owners and their Condominium within such an Area.
Currently no Special Benefit Areas are contemplated by the
Declarant .
Section 5 . "Best Management Practices" shall mean and
refer to those certain structural, treatment control, and non-
structural water quality management practices set forth in, or
otherwise required pursuant to, the Water Quality Management Plans
( "WQMP" ) approved for or applicable to the Project . The structural
and treatment control Best Management Practices may include,
without limitation, landscape planting, hillside planting, roof
runoff controls, efficient irrigation technology, slope and channel
protection measures, storm drain signage, trash storage areas,
litter control requirements, in-flow based treatment control BMPs
(e.g. , vegetated buffer strips, vegetated swales, multiple systems,
bioretentions, and hydrodynamic separation systems) , volume based
treatment control BMPs (e.g. , wet ponds, constructed wetlands,
extended detention basins, water quality inlets, retention/irriga-
tion, infiltration basins, infiltration trenches, media filters,
50018.154-24590.FCM 051816 -3
and manufactured proprietary devices) , detention basins, retention
basins, debris basins, "V" ditches, bench drains, catch basins,
catch basin media filters, fossil filters, inlet trash racks,
drainpacs and other storm drain filtration devices, energy
dissipaters, culverts, pipes, and related storm drain and water
quality facilities constructed in the Project . The non-structural
Best Management Practices generally require the Corporation and the
Owners and other residents within the Project to be aware of the
sensitive natural environment surrounding the Project and to take
appropriate actions to control runoff from the Project . With
respect to the Corporation, the non-structural Best Management
Practices may include : (i) providing informational materials to the
Owners and other residents within the Project regarding general
good housekeeping practices for protection of storm water quality;
(ii) restricting certain activities addressed in the informational
materials to protect the quality of water entering the storm drain
system; (iii) managing the landscaping on the Corporation Property,
including, without limitation, using fertilizers and pesticides in
accordance with the "Management Guidelines for Use of Fertilizers
and Pesticides" which is included, if applicable, in the appendix
to the Water Quality Management Plans; (iv) performing on a
regularly scheduled basis maintenance consisting, at a minimum, of
litter control, emptying of common trash receptacles and sweeping
of dumpster enclosures; (v) inspecting and cleaning the catch
basins located on the Corporation Property; and (vi) sweeping any
on-site private paved areas on a regular basis and prior to the
rainy season (i . e . , prior to October 15th of each year) . With
respect to the Owners and other residents within the Project , the
non_structural Best Management Practices may include, among other
things, restricting certain activities to protect the quality of
water entering the storm drain system (e .g. , prohibiting the
disposal of motor oil, paint products, car detergents and other
pollutants into the storm drains in the Project) . The Best Manage-
ment Practices are designed and intended to control runoff and must
be implemented by the Corporation, and the Owners and other
residents within the Project . The Best Management Practices may be
modified from time to time by the Declarant or any public agency
having jurisdiction regarding water quality for runoff waters from
the Project in order to control runoff as the Project develops and
runoff conditions change. Compliance by the Corporation and the
Owners with the Best Management Practices, as they may be modified
from time to time, may be monitored and enforced by any public
agency having jurisdiction regarding water quality for runoff
waters from the Project, including, without limitation, the City,
County, Regional Water Quality Control Board, and State Water
Resources Board.
Section 6 . "Board" shall mean and refer to the Board of
Directors of the Corporation, elected in accordance with the By-
Laws of the Corporation and this Declaration.
50018.154-24590.FCM 051816 -4
Section 7 . "By-Laws" shall mean and refer to the By-
Laws of the Corporation which have been, or will be, adopted by the
Board, as such By-Laws may be amended, from time to time.
Section 8 . "CalBRE" shall mean and refer to the Bureau
of Real Estate of the State of California, which administers the
sale of subdivided lands pursuant to Sections 11000, et sect. , of .
the California Business and Professions Code, or any similar
California statute hereinafter enacted.
Section 9 . "City" shall mean and refer to the City of
Huntington Beach, California, and its various departments,
divisions, employees and representatives, and related entities .
Section 10 . "Common Area" shall mean and refer to that
certain portion of the Property described and/or depicted as
"Common Area" on the Condominium Plan for the Property, as more
particularly described hereinbelow.
Section 11 . "Common Expenses" shall mean and refer to
the actual and estimated costs to be paid by the Corporation for
the common benefit of all Owners of Condominiums in the Project .
Except as otherwise provided in this Declaration, the Common
Expenses shall include all costs and expenses incurred by the
Corporation in connection with the following: (a) owning, maintain-
ing, managing, operating, repairing and replacing the Corporation
Property; (b) managing and administering the Corporation, in-
cluding, but not limited to, compensation paid by the Corporation
to managers, accountants, attorneys, budget preparers, and other
consultants and any Corporation employees ; (c) all general office
and administrative expenses incurred by the Architectural Review
Committee; (e) providing utilities and other services to the
Corporation Property, and, if not separately metered, to the
Condominium Units; (f) providing insurance (and paying deductibles)
as provided for herein; (g) paying that portion of any Assessment
attributable to Common Expenses not paid by the Owner responsible
for payment; (h) paying taxes for the Corporation; (i) paying all
reasonable out-of-pocket expenses actually incurred by the members
of the Board and officers of the Corporation in performing their
duties as provided herein (e.g. , postage and photocopying) ; (j )
enforcing the provisions of this Declaration, the By-Law, and Rules
and Regulations; and (k) paying for all other goods and services as
reasonably required by the Corporation to perform its powers and
duties as set forth herein (including, without limitation, the
maintenance and repair of the storm water drainage facilities and
BMPs described and/or depicted as maintained by the Corporation on
Exhibit "D" attached hereto, in accordance with the Water Quality
Management Plans approved for the Project) . Additionally, the
Common Expenses shall include adequate reserves, as the Board shall
determine to be appropriate, for the repair and replacement of
those elements of the Corporation Property which must be repaired
or replaced on a periodic basis, rather than on a regular annual
50018.154-24590.FCM 051816 -5
basis. The Common Expenses do not include any actual or estimated
costs to be paid by the Corporation for those Improvements to the
Corporation Property which constitute Special Benefit Area
Improvements and which are allocable as Special Benefit Expenses to
the Owners of Condominiums within a Special Benefit Area.
Section 12 . "Common Property" as used herein shall mean
and refer collectively to all Common Area and to all Corporation
Property in the Project .
Section 13 . "Condominium" shall mean an estate in real
property, as defined in California Civil Code Sections 4125 (b) and
4185 (a) (2) , as same may be amended from time to time, consisting of
a separate interest in a Condominium Unit, an undivided fractional
fee interest in the Common Area of the Project, as more
particularly shown and described in a Condominium Plan affecting
the Project recorded in the Office of the County Recorder, together
with all exclusive and nonexclusive easements appurtenant thereto.
Condominiums in the Project are more particularly described in
Article III of this Declaration.
Section 14 . "Condominium Plan" shall mean and refer to
each of those instruments entitled "Condominium Plan, " prepared in
accordance with Sections 4120 and 4285-4295 of the California Civil
Code, as the same may be amended, from time to time, and recorded
in the Office of the County Recorder, affecting the Project, and
shall consist of (a) a description or survey map of the Project,
which shall refer to or show monumentation on the ground; (b) a
three-dimensional description of the Project, one or more
dimensions of which may extend for an indefinite distance upwards
or downwards in sufficient detail to identify the Common Area, each
Condominium Unit and the Corporation Property; and (c) a
certificate consenting to the recordation thereof signed and
acknowledged by the record owner of fee title to the property
included in the Condominium Plan, and by either the trustee or the
beneficiary of each recorded deed of trust and the Mortgagee of
each recorded Mortgage encumbering property included in the
Condominium Plan. The Condominium Plan for the Project shall be
recorded prior to or concurrently with this Declaration.
Section 15 . "Condominium Unit" shall mean and refer to
the elements of a Condominium which are not owned in common with
the Owners of other Condominiums in the Project . Condominium Units
in the Project are more particularly described in the Article here-
in entitled "Description of the Condominiums" and in the Condomin-
ium Plan recorded for such property. For purposes of this
Declaration, the term "Condominium Unit" is deemed to be a
"separate interest, " as defined in Sections 4125 (b) and 4185 (a) (2)
of the California Civil Code, as same may be amended from time to
time .
50018.154-24590.FCM 051816 -6
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maintained by the Corporation on Exhibit "E" attached hereto
(specifically excluding each sewer lateral exclusively serving a
Condominium Unit from within the residence to the point of
connection to the private common sewer line within the Project) ,
common mailbox structures, common irrigation equipment, the private
storm drain system for the Project described and/or depicted as
maintained by the Corporation on Exhibit "D" attached hereto,
poles, signs, Project entry monuments, common trash bins, common
recreational facilities (e.g. , open space, outdoor furniture,
fountain, etc . ) , and common landscaping located on the Corporation
Property, excepting therefrom landscaping and improvements located
in the Exclusive Use Corporation Property.
Section 18 . "County" shall mean and refer to the County
of Orange, California, and its various departments, divisions,
employees, and representatives.
Section 19 . "Declarant" shall mean and refer to OLSON -
HUNTINGTON BEACH 3 , LLC, a California limited liability company,
and its successors and assigns, if such successors and assigns
acquire any or all of Declarant' s interest in the Property for the
purpose of purchase or sale, excluding any Owners, and Declarant
has expressly transferred or assigned to such successors or assigns
its rights and duties as Declarant to all or any portion of the
Project . For any successor assignee of "Declarant" to be deemed a
Declarant under the terms of this Declaration, Declarant shall
record in the County a document so designating said successor or
assignee as Declarant . A successor Declarant shall also be deemed
to include the beneficiary under any deed of trust securing an
obligation from a then existing Declarant encumbering all or any
portion of the Property, which beneficiary has acquired any such
property by foreclosure, power of sale or deed in lieu of such
foreclosure or sale.
Section 20 . "Declaration" shall mean and refer to this
Declaration of Covenants, Conditions and Restrictions, and Reser-
vation of Easements, and to all amendments to this Declaration as
may be recorded, from time to time, in the Office of the County
Recorder, in accordance with Sections 4135 and Section 4250 et sue.
of California Civil Code.
Section 21 . "Dispute" shall have the meaning set forth
herein below.
Section 22 . "Entitlements from City" shall mean any and
all agreements, building permits and related permits, conditions of
approval, and other documents, instruments or similar writings
involving the City which regulate or relate to utilization of real
property in the Project (including, without limitation, all
conditions imposed by the City in connection with the approval of
Tract No. 17390 and the development of the Project) .
50018.154-24590.FCM 051816 -8
Section 23 . "Exclusive Use Corporation Property" shall
mean those portions of the Corporation Property over which
exclusive easements are reserved for the benefit of certain Owners,
as described herein and shown on the Condominium Plan, including,
without limitation, patios , decks, yards, porches, solar panel
(i . e . , area where an Owner shall have the exclusive right to
install a solar panel or collector) , air conditioning pads, and
internal and external telephone wiring designed to serve a single
Condominium Unit but located outside the boundaries of the
Condominium Unit, if applicable, in accordance with California
Civil Code Section 4145, as same may be amended from time to time.
The location of the Exclusive Use Corporation Property solar panels
and air conditioning pads shall be those locations as originally
constructed by Declarant .
Section 24 . "FHLMC" shall mean and refer to the Federal
Home Loan Mortgage Corporation (The Mortgage Corporation) created
by Title III of the Emergency Home Finance Act of 1970, as same may
be amended, from time to time, including any successors thereto .
Section 25 . "FNMA" shall mean and refer to the Federal
National Mortgage Association, a government-sponsored private
corporation established pursuant to Title VIII of the Housing .and
Urban Development Act of 1968 , as amended, from time to time,
including any successors thereto .
Section 26 . "GNMA" shall mean and refer to the Govern-
ment National Mortgage Association administered by the United
States Department of Housing and Urban Development, including any
successors thereto.
Section 27 . "Include, Including" (whether capitalized or
not) shall mean "includes without limitation" and "including
without limitation, " respectively.
Section 28 . "Improvements" shall mean and refer to all
structures and appurtenances thereto of every kind, including, but
not limited to, Condominium Units , open parking areas, swimming
pools, spas , cabanas, private streets, street lights, pavement,
sidewalks, drives, walls, fences, decorative or informative signs,
retaining walls, mail kiosks, trellises, television and radio
antenna, common trash receptacles , if any, screens, private utility
line connections, poles, signs, all Corporation Property landscap-
ing and irrigation systems . Improvements shall also mean and refer
to all additions and/or modifications to the exterior of any
condominium building, including, but not limited to, (a) painting
the exterior of any condominium building or other structure, (b)
changing the roofing material on any condominium building, and/or
(c) building, constructing, installing, altering or planting, as
the case may be, any spas, patio covers, gazebos, stairs, screening
walls or fences, shades, awnings, screen doors, exterior doors,
skylights, solar heating panels, air conditioning and/or water
50018.154-24590.FCM 051816 -9- ICI
1
softening or refining fixtures or systems, and all landscaping
which left in its natural condition will grow to a height in excess
of twenty feet (20' ) .
Section 29 . "Limited Warranty" shall mean and refer to
the express written limited warranty commonly known as the "Home
Builder' s Limited Warranty, " which may be administered by "PWC" (as
defined below) and may be provided to the initial Owners who
acquire a residential Condominium from the Declarant and the
Corporation, as determined appropriate by the Declarant. A sample
copy of the version currently available is attached hereto as
Exhibit "B" and provided for illustrative purposes only. Each
Owner shall be responsible to ensure that the subsequent purchaser
of such Owner' s residential Condominium is aware of the Limited
Warranty and the procedures and forms which must be followed and
executed to transfer such Limited Warranty, if applicable, to said
subsequent purchaser.
Section 30 . "Local Government Agency. " Local Government
Agency means the City, the County, a public school district, a
public water district, and any other local or municipal government
entity or agency including, without limitation, any community
service area, special assessment district, maintenance district or
community facilities district .
Section 31 . "Lot" shall mean and refer to a plot of land
which is separately described and numbered or lettered on a
recorded tract map or parcel map as such plot of land may be
modified or otherwise adjusted by a recorded lot line adjustment or
recorded certificate of compliance .
Section 32 . "Maintain, Maintenance" (whether capitalized
or not) shall mean "inspect, maintain, repair and replace" and
"maintenance, repair and replacement, " respectively; provided,
however, that "maintain" or "maintenance" shall not include
inspection, repair and replace (ment) where the context or specific
language of this Declaration provides another meaning.
Section 33 . "Maintenance Guidelines; Maintenance Manual;
Maintenance Obligations" shall mean and refer to any current
written guidelines, setting forth procedures and standards for the
maintenance and operation of Corporation Property Improvements or
Condominiums that may be provided to the Corporation or Owners by
Declarant or any governmental agency or manufacturer or set forth
herein for the maintenance of Corporation Property or a Condominium
and other Improvements Declarant has constructed on or in the
Project . Maintenance Guidelines include any Maintenance Manual
initially prepared at Declarant' s direction, and recommended
inspections and maintenance activities for components of the
Corporation Property or Condominium and any Maintenance Obligations
prepared by Declarant pertaining to same .
50018.154-24590.FCM 051816 -1 0-
Section 34 . "Member" shall mean and refer to every per-
son or entity who holds membership in the Corporation, as more
particularly set forth in the Article herein entitled "The Corp-
oration, " and shall be synonymous with the term "Owner. "
Section 35 . "Mortgage" shall mean and include any
mortgage or deed of trust, or other conveyance of a Condominium (or
other portion of the Project) to secure the performance of an
obligation, which conveyance will be reconveyed upon the completion
of such performance, including an installment land sales contract
(as described in Sections 2985 et seq. of the California Civil
Code, as same may be amended, from time to time) . The term "Deed of
Trust, " when used herein, shall be synonymous with the term
"Mortgage . "
Section 36 . "Mortgagee" shall mean and refer to a person
or entity to whom a Mortgage is made, and shall include the
beneficiary of a Deed of Trust or the vendor under an installment
land sales contract, as the case may be, and the assignees of a
Mortgagee, beneficiary or vendor.
Section 37 . "Mortgagor" shall mean and refer to a person
or entity who mortgages his or its Condominium to another, i . e . ,
the maker of a Mortgage, and shall include a trustor of a Deed of
Trust and the vendee under an installment land sales contract .
Section 38 . "Notice and Hearing" shall mean and refer to
written notice and the opportunity for a hearing before the Board
or the Architectural Review Committee of the Corporation, as
applicable, or other tribunal appointed by the Board in the manner
provided in the By-Laws, at which the affected Owner shall have an
opportunity to be heard in the manner provided herein and in the
By-Laws .
Section 39 . "Owner" shall mean and refer to one or more
persons or entities who alone or collectively are the record owner,
or owners, of fee simple title to a Condominium, excluding those
persons or entities having any such interest merely as security for
the performance of an obligation. If a Condominium has been sold
under a land sales contract (as described in Sections 2985 et sue.
of the California Civil Code, as same may be amended, from time to
time) , in which the State of California is the vendor, then the
vendee shall be deemed to be the Owner of such Condominium. If a
Condominium is leased by Declarant for a term of ten (10) or more
years, including renewal periods, and the lease or memorandum
thereof is recorded, the lessee or transferee of the leasehold
interest and not the Declarant shall be deemed the Owner. If fee
title to a Condominium is owned other than by Declarant, the Owner
of the fee title and not the lessee of such Condominium shall be
deemed the Owner regardless of the term of the lease .
SOO18.1S4-24590.FCM 051816
- I
i
Section 40 . "Property" shall mean and refer to Lot 1 of
Tract 17930 improved with Condominiums or other Improvements which
is part of the and which is (are) subject to a separate Final
Subdivision Public Report issued by CalBRE.
Section 41 . "Project" shall mean and refer to the
Property (and to all Improvements, including the Condominium Units,
constructed thereon) , together with all Common Property.
Section 42 . "PWC" shall mean and refer to Professional
Warranty Service Corporation, including any successors thereto.
Section 43 . "Residence" shall mean and refer to the
individual dwelling (i .e . , Condominium Unit) which is designed and
intended for use and occupancy as a residence.
Section 44 . "Rules and Regulations" shall mean and refer
to the Rules and Regulations adopted by the Board pursuant to the
By-Laws or this Declaration, as they may be amended, from time to
time .
Section 45 . "VA FHA" shall mean and refer to the United
States Department of Veterans Affairs and/or Federal Housing Ad-
ministration, including the department or agency of the United
States government as shall succeed to the VA and/or FHA. For
purposes of the FHA' s requirements, including, without limitation,
the certification by an attorney required by HUD Handbook 4150 . 1
Rev-1 that all "condominium legal documents" meet the HUD guide-
lines set forth in HUD Handbook 4265 . 1, Appendix 24 , and state and
local condominium laws, the Articles, By-Laws, Declaration, and
Condominium Plan shall constitute the "condominium legal documents .
Section 46 . "Water Quality Management Plans" shall mean
and refer to all applicable plans and requirements for the
management of storm water at the Project, including, without
limitation, any applicable National Pollutant Discharge Elimination
System ( 11NPDES11 ) permit requirements, Urban Storm Water Mitigation
Plan ( "USWSMP" ) , Storm Water Pollution Prevention Plan ( "SWPPP" ) ,
Water Quality Management Plan ( "WQMP" ) , Drainage Area Management
Plan ( "DAMP" ) , Local Implementation Plan ( "LIP" ) , and other storm
water quality management plans that may be prepared and approved
for the Project in compliance with applicable federal, state and
local laws . The Water Quality Management Plans address water
runoff generated by the residential areas and other development
Improvements within the Project and will be monitored by various
public agencies (e.g. , the Regional Water Quality Control Board and
the City) . The Water Quality Management Plans contain, among other
things, certain Best Management Practices that must be followed by
the Corporation, the Owners, and/or other residents within the
Project . The Water Quality Management Plans and the related Best
Management Practices may be modified at any time by the Declarant
and/or the public agencies having jurisdiction over such matters;
50018.154-24590.FCM 051816 -12-
provided, however, that no revision or amendment of the Water
Quality Management Plans shall be made except as dictated by either
local, state or federal law and the City' s LIP . The approved Water
Quality Management Plans for the Project are hereby incorporated by
reference, as if fully set forth herein, and shall be updated as
required by local, state or federal law or regulation and the
City' s LIP.
Section 47 . Interpretation.
(a) General Rules . This Declaration shall be
liberally construed to effectuate its purpose of creating a
uniform plan for subdividing, maintaining, improving,
repairing and selling the Condominiums . As used in this
Declaration, the singular includes the plural and the plural
the singular. The masculine, feminine and neuter each includes
the other, unless the context dictates otherwise.
(b) Articles, Sections and Exhibits . The Article
and Section headings are inserted for convenience only and may
not be considered in resolving questions of interpretation or
construction. Unless otherwise indicated, any references in
this Declaration to articles , sections or exhibits are to
Articles, Sections and Exhibits of this Declaration. Except
as otherwise noted herein (e .g. , the sample form of Limited
Warranty, which is attached hereto for illustrative purposes
only and is not incorporated by reference) , all exhibits
attached to this Declaration are incorporated in this Declara-
tion by this reference. The locations and dimensions of any
Improvements depicted on the Exhibits attached hereto are
approximate only, and the location and dimension of any such
Improvements as built by the Declarant shall control .
(c) Priorities and Inconsistencies . If there are
conflicts or inconsistencies between this Declaration and the
Articles, Bylaws, or Rules and Regulations, then the provi-
sions of this Declaration shall prevail .
(d) Severability. The provisions of this Declara-
tion are independent and severable. A determination of
invalidity, partial invalidity or unenforceability of any one
(1) provision of this Declaration by a court of competent
jurisdiction does not affect the validity or enforceability of
any other provisions of this Declaration.
(e) Statutory References . All references made in
this Declaration to statutes are to those statutes as current-
ly in effect or to subsequently enacted replacement statutes .
Section 48 . Application of Definitions . The aforesaid
definitions shall be applicable throughout this Declaration, and to
any supplements or amendments hereto filed or recorded pursuant to
50018.154-24590.FCM 051816 -13 'i,
the provisions of this Declaration unless otherwise indicated or
the context shall prohibit such application.
ARTICLE II
INTRODUCTION TO MONARCH WALK
Section 1 . General Plan of Development. Monarch Walk is
presently planned as a single phase condominium project, as defined
in Section 4125 of the California Civil Code, which, if completed
as planned, may consist of approximately thirteen (13) attached
residential Condominiums and various amenities . Nothing in this
Declaration is intended, or shall be interpreted, to constitute an
"enhanced protection agreement" as defined in Section 901 of the
California Civil Code. The Project will be developed in accordance
with California Civil Code, Sections 4000 , et sea. , and in
substantial conformance with the development plan, Condominium
Plan, and the architectural plans and other plans submitted to and
approved by the City (which plans may set forth the architectural
style and the size of the Condominium Units) . As of the
recordation date of this Declaration, it is anticipated that the
architectural style of the residential Condominiums will be multi-
story townhomes and the square footages of the Condominium Units
may range from approximately 1, 580 to 1, 930 square feet.
(a) As presently planned the Project will consist
of approximately thirteen (13) residential Condominiums and
Common Property. Each Condominium Unit will be completed
prior to the close of escrow for the sale of such Condominium.
The Condominiums are more particularly described in the
Article herein entitled "Description of the Condominiums . " The
Owners in the Project will receive title to their respective
Condominium Units, various easements (exclusive and nonexclu-
sive, as set forth in this Declaration) , an undivided
one/thirteenth (1/13th) interest in the Common Area, and a
membership in the Corporation.
Section 2 . Membership in Corporation. As more par-
ticularly set forth in this Declaration, each Owner of a Condo-
minium in the Project shall automatically become a Member of the
Corporation, and shall be obligated for the payment of Assessments
to the Corporation. In addition, except as otherwise provided
herein, each Owner, his family members, lessees, tenants , guests
and invitees, will be entitled to the use and enjoyment of the
Corporation Property within the Project, in accordance with this
Declaration, the By-Laws and Rules and Regulations adopted by the
Board.
Section 3 . Declarant' s Use of Private Vehicular Drives
and Utilities . Declarant hereby reserves, together with the right
to grant and transfer all or a portion of the same, until the
50018.154-24590.FCM 051816 -1 4-
earlier of when Declarant no longer owns an interest in Tract No.
17930 or five years from the recordation of this Declaration,
easement rights to use the private vehicular drives and any private
utilities within the Project for, including, but not limited to,
access and connection of utilities by Declarant for purposes of
developing the real property comprising Tract No. 17930 .
Section 4 . Post Tension Slabs . Each Owner hereby
acknowledges that the concrete slab for an Owner' s Condominium Unit
MAY be reinforced with a grid of steel cables which were installed
in the concrete and then tightened to create very high tension.
This type of slab is commonly known as a "Post Tension Slab. " Each
Owner further acknowledges cutting into a Post Tension Slab for any
reason (e .g. , to install a floor safe, to remodel plumbing, etc . )
is very hazardous and may result in serious damage to the Condomin-
ium Unit and/or personal injury. By accepting a grant deed to the
Condominium, each Owner hereby specifically covenants and agrees
that :
(a) He/she shall not cut into or otherwise tamper
with the Post Tension Slab;
(b) He/she shall not knowingly permit any other
person to cut into or tamper with the Post Tension Slab so
long as Owner owns any interest in the Condominium;
(c) He/she shall disclose the existence of the Post
Tension Slab to any tenant, lessee, or grantee of the Condo-
minium; and
(d) He/she shall indemnify and hold Declarant, and
its respective officers, employees, contractors and agents,
free and harmless from and against any and all claims,
damages, losses, or other liability (including attorneys'
fees) arising from any breach of this Section.
Section S . Development Control . Nothing in this Article
or elsewhere in this Declaration shall limit, restrict, abridge or
control, in any manner whatsoever, Declarant' s right to complete
the planning, development, grading, construction, advertising,
marketing, leasing and sales of the Condominiums, and all other
property within the Project, including, without limitation, the
following specific rights, which may be exercised by Declarant, or
by its agents and employees, in conjunction with such development
and marketing of Condominiums in the Project . Therefore,. Declarant
shall have the right to: (a) complete construction of any
Improvements in the Project ; (b) redesign or otherwise alter the
style, size, color or appearance of any Improvements in any portion
of the Project owned by Declarant and implement an Assessment
schedule thereon consistent with such development subject to the
restrictions on increasing Assessments set forth in the Declaration
and applicable law (e .g. , Civil Code Section 5605, Business and
50016.154-24590.FCM 051816
Professions Code Section 11018 . 7, etc . ) ; (c) construct additional
Improvements on any portion of Tract No. 17930 owned by Declarant;
(d) subdivide, resubdivide, adjust Condominium boundaries or Lot
lines, grade or re-grade any portion of the Project owned by
Declarant; and (e) otherwise control all aspects of designing,
constructing, and phasing the Improvements in the Project, and of
marketing and conveying Condominiums in the Project . In furtherance
thereof, Declarant hereby reserves, unto itself and its successors
and assigns for so long as Declarant owns any interest in Tract No.
17930, however, not to exceed five years from the recordation of
this Declaration:
(a) A nonexclusive easement for ingress and egress
on, over and across the Project as necessary to construct the
Condominium Units and all other Improvements;
(b) The exclusive right to maintain one (1) or more
sales office (s) , model complex(es) , construction trailer,
interior design and decorator center (s) within property owned
by Declarant, and parking area for employees, agents and pro-
spective buyers;
(c) The exclusive right to place reasonable signs,
flags, banners, billboards or other forms of advertising on
any portion of the Project owned or controlled by Declarant
and/or Corporation Property (specifically including the
Project entry area) , as Declarant deems necessary, irrespec-
tive of size, color, shape or materials of such items as long
as such use does not unreasonably interfere with the Owners'
reasonable use of - the Corporation Property and all signs,
flags, banners, billboards, and other forms of advertising
have been reviewed and approved by the City prior to
installation and comply with all applicable City signage
regulations and ordinances ;
(d) A nonexclusive right to utilize the Corporation
Property and any unassigned open parking spaces in connection
with its program for the sale or leasing of Condominiums in
the Project;
(e) The right to install, place, replace, con-
struct, reconstruct, modify or remove any Improvement from any
Condominium owned by Declarant, as Declarant may, in its sole
discretion, deem appropriate;
(f) The right to conduct any commercial activity
upon any Condominium owned by Declarant which reasonably
relates to the development, marketing, leasing or sale of the
Condominiums or other property in the Project; and
(g) The right to utilize the Corporation Property
in the Project for marketing and promotional activities;
50018.154-24590.FCM 051816 -1 6-
however, if these activities could result in excluding an
Owner from the reasonable use of the Corporation Property, the
Declarant must first obtain approval from the Board, which
approval may be withheld in the sole and absolute discretion
of the Board.
Section 6 . Non-Liability of Declarant . Nothing in this
Article or elsewhere in this Declaration shall be understood or
construed to compel Declarant to construct the Project .
ARTICLE III
DESCRIPTION OF THE CONDOMINIUMS
Declarant, in order to establish a plan of Condominium
ownership for the Property, does hereby declare that it has di-
vided, and does hereby divide, Property into the following freehold
estates :
Section 1 . Condominium Unit . Each Condominium Unit
shall be a separate interest, as defined in Sections 4125 (b) and
4185 (a) (2) of the California Civil Code, as same may be amended
from time to time, consisting of the following elements in ac-
cordance with the plans and specifications for each Condominium
Unit within the Property, as more particularly shown and described
on the Condominium Plan:
(a) Residential Airspace Element . The residential
airspace element is bound by and contained within the interior
unfinished surfaces of the perimeter walls, floors, ceilings,
windows, and doors of said element, and the airspace encom-
passed thereby, identified on the Condominium Plan by its re-
spective Condominium Unit number. The lower and upper bounda-
ries of each residential airspace element are horizontal or
sloped planes, the elevations of which are indicated in the
diagrams (e.g. , vertical sections) and/or tables, if any, set
forth in the Condominium Plan. The lateral boundaries of each
residential airspace element are vertical planes at the limits
of the horizontal dimensions shown in the Condominium Plan for
each residential airspace element .
(b) Garage Airspace Element . The garage airspace
element is bound by and contained within the interior un-
finished surfaces of the perimeter walls, floors, ceilings,
and garage door of said element, and the airspace encompassed
thereby, identified by the letter "G" and its respective
Condominium Unit number on the Condominium Plan. The lower and
upper boundaries of each garage airspace element are horizon-
tal or sloped planes, the elevations of which are indicated in
the diagrams (e.g. , vertical sections) and/or tables, if any,
set forth in the Condominium Plan. The lateral boundaries of
50018.154-24590.FCM 051816 -1 7-
each garage airspace element are vertical planes at the limits
of the horizontal dimensions shown in the Condominium Plan for
each garage airspace element .
Each Condominium Unit includes both the portion of the
building so described and the airspace so encompassed, all windows
and doors of said Condominium Unit (including all locks, handles,
latches, screens, weatherstripping, exterior doors, and the garage
door) , the forced air heating unit, the air conditioning compres-
sor, if any, the hot water heater (or tankless water heater, as
applicable) , all utility laterals, lines, pipes and/or outlets when
located within or exclusively serving said Condominium Unit (no
matter where such are located) , all built-in appliances and fix-
tures, the garage door opener, the chimney flue and firebox portion
of the fireplace in or servicing the Condominium Unit, if any, and
the interior staircase, if any, within the airspace of the
Condominium Unit.
Section 2 . Presumption of Boundaries of Condominium
Units . In interpreting this Declaration, the Condominium Plan, and
all instruments of conveyance, the existing physical boundaries of
the Condominium Unit, or of a Condominium Unit reconstructed in
substantial accordance with the original Condominium Plan thereof,
shall be conclusively presumed to be its boundaries, rather than
the metes and bounds (or other description) expressed in this
Declaration, Condominium Plan, or instrument of conveyance,
regardless of settling or lateral movement of the condominium
building and regardless of minor variances between the boundaries
shown in the Condominium Plan, in the deed and/or in this Declara-
tion, and the actual boundaries of the condominium building.
Section 3 . Common Area. As described and referred to
hereinabove, the Common Area in the Property is as depicted and/or
described on the Condominium Plan, but does not include any of the
Condominium Units or Corporation Property. The Common Area is
comprised of a three-dimensional airspace volume, the dimensions of
which are more particularly described in the Condominium Plan.
Section 4 . Exclusive Use Corporation Property.
Exclusive Use Corporation Property shall mean and refer to that
portion of the Corporation Property which is reserved for the
exclusive use of the Owners of particular Condominium Units . An
Exclusive Use Corporation Property constitutes an exclusive
easement or license appurtenant to its assigned Condominium Unit,
subject to the exclusive uses and purposes set forth herein. Each
Exclusive Use Corporation Property patio, deck, yard, porch, solar
panel (i .e. , area where an Owner shall have the exclusive right to
install a solar panel or collector) , and air conditioning pad, and
the Condominium Unit within the Property to which such items are
appurtenant (if applicable - not all Condominium Units may have
such Exclusive Use Corporation Property areas) , is identified in
the Condominium Plan as follows :
50018.154-24590.FCM 051816 -18
(a) Patio. If applicable, the patio area bound by
and contained within the exterior finished surfaces of the pe-
rimeter walls, doors and/or windows of the adjoining resi-
dential element, and the interior finished surfaces of the
patio perimeter walls and/or fences and doors, identified in
the Condominium Plan by the letter "P" and its respective
Condominium Unit number, is hereby assigned to the Condominium
Unit as shown on the Condominium Plan. The upper and lower
vertical boundaries of the patio area are described and/or
depicted in the Condominium Plan. Any storage areas located in
the patio area are considered part of the patio area even if
not specifically designated on the Condominium Plan.
(b) Deck. If applicable, the deck, area bound by and
contained within the exterior finished surfaces of the perime-
ter walls, doors and/or windows of the adjoining residential
element, and the interior finished surfaces of the deck
perimeter railings, walls and/or fences and doors, identified
in the Condominium Plan by the letter "D" and its respective
Condominium Unit number, is hereby assigned to the Condominium
Unit as shown on the Condominium Plan. The lower and upper
vertical elevations of the deck area are described and/or
depicted in the Condominium Plan. Any storage areas located
in the deck area are considered part of the deck area even if
not specifically depicted on the Condominium Plan.
(c) Yard. If applicable, the yard area bound by and
contained within the exterior finished surfaces of the perime-
ter walls, doors and/or windows of the adjoining residential
element, and the interior finished surfaces of the yard
perimeter walls and/or fences and gates, identified in the
Condominium Plan by the letter "Y" and its respective
Condominium Unit number, is hereby assigned to the Condominium
Unit as shown on the Condominium Plan. The lower and upper
vertical elevations of the yard area are described and/or
depicted in the Condominium Plan. Any storage areas located
in the yard area are considered part of the yard area even if
not specifically depicted on the Condominium Plan.
(d) Porch. If applicable, the porch area bound by
and contained within the exterior finished surfaces of the pe-
rimeter walls, doors and/or windows of the adjoining resi-
dential element and garage element and the interior finished
surfaces of the porch perimeter walls and/or fences and doors,
identified in the Condominium Plan by the letter "PCH" and its
respective Condominium Unit number, is hereby assigned to such
Condominium Unit as shown on the Condominium Plan. The lower
and upper vertical elevations of the porch area are described
and/or depicted in the Condominium Plan. Any storage areas
located in the porch area are considered part of the porch
area even if not specifically depicted on the Condominium
Plan.
50018.154-24590.FCM 051816 -1 9-
(e) Solar Panel . If applicable, the location of the
Exclusive Use Corporation Property solar panel (i .e . , area
where an Owner shall have the exclusive right to install a
solar panel or collector) shall be the location as originally
constructed by Declarant .
(f) Air Conditioning Pad. If applicable, the
location of the Exclusive Use Corporation Property air
conditioning pad shall be the location as originally
constructed by Declarant .
Subject to the provisions herein, including the Article entitled
"Repair and Maintenance, " it shall be the obligation of each and
every Owner to keep his respective Exclusive Use Corporation
Property in a neat, clean, safe and attractive condition at all
times; provided, however, that the Corporation shall maintain any
original waterproofing installed by Declarant on the floor of the
deck and the structure of the deck. If any maintenance or repairs
are required due to willful or negligent acts or omissions of any
Owner, his family, lessees, tenants, guests, or invitees , the
Corporation shall levy a Compliance Assessment against the Owner
for such costs . Should landscaping be placed on a patio, deck,
yard and/or porch the Owner must take adequate steps to capture
water from such plants and to prevent any damage to the Project or
unsightly conditions . The Board shall have the right to restrict
pots or other items from being placed on top of or attached to any
fence or railing or to allow the potted plants to grow on the
exterior of a patio, deck, yard and/or porch railing, fence or all
or portions of the building. Each Owner shall be responsible to pay
for the repairs of any damage which may be caused by the placing of,
landscaping (including potted plants) in his or her Exclusive Use
Corporation Property area. No Owner shall make any Improvements to
his or her patio, yard, deck, porch, solar panel (including the
installation of any solar panel or collector) , air conditioning
pad, or other Exclusive Use Corporation Property area unless and
until the Architectural Review Committee has approved plans of such
Improvements showing such detail as the Architectural Review
Committee or its consultant deems appropriate. In connection with
the approval of such plans, the Architectural Review Committee or
Board shall have the right to require that only a contractor or
other person approved by the Board enter or conduct any activities
affecting the Corporation Property (e.g. , in connection with an
Owner' s installation or maintenance of any solar panel or collector
or air conditioner for his Condominium, etc . ) and to condition such
entry on the contractor' s or other person' s compliance with
reasonable requirements for the protection of the Corporation
Property (e .g. , requirements that the contractor be appropriately
licensed, maintain and provide the Corporation with written
evidence of insurance coverage on which the Corporation is named as
an additional insured, obtain the Corporation' s written permission
to access the Corporation Property, and/or execute an indemnity
agreement in favor of the Corporation) : The Architectural Review
50018.154-24590.FCM 051816 -2 0-
Committee shall also have the right to restrict or prohibit any
items from being placed on or attached to a patio, yard, deck or
porch which are within view of other Owners and which the Architec-
tural Review Committee deems to be unattractive or not appropriate.
Each Owner assumes all risks which may result from Improve-
ments he or she makes to his or her Exclusive Use Corpora-
tion Property area or Condominium Unit, and each Owner indemnifies
and holds harmless the Corporation, the Architectural Review
Committee, Declarant and each other Owner from any claims, demands,
liabilities, judgments, attorney' s fees and other obligations which
arise out of or are incurred in connection with the installation,
existence or removal of such Improvements .
Section 5 . Undivided Fractional Fee Interest in Common
Area. The interest in the Common Area of the Property hereby
established and which shall be conveyed with each respective Con-
dominium Unit in the Property is a one/thirteenth (1/13th) undi-
vided fractional fee interest . The above respective undivided
fractional fee interest established and to be conveyed with the
respective Condominium Units, as indicated above, cannot be
changed. Declarant, for and on behalf of itself, and its succes-
sors, assigns and grantees, covenants and agrees that neither the
Condominium Unit nor the respective undivided fractional fee in-
terest in the Common Area shall be separately conveyed or encum-
bered. An otherwise valid conveyance or encumbrance referring only
to the Condominium Unit shall also convey or encumber the respec-
tive undivided fractional fee interest in the Common Area. Any
attempt to convey or encumber the undivided fractional fee interest
in the Common Area without the respective Condominium Unit shall be
null and void.
Section 6 . Easements Over Corporation Property. Each
Owner shall have a nonexclusive easement appurtenant to his or her
Condominium for ingress, egress, use, and enjoyment in, on, over,
under, across, and through the Corporation Property in the Project,
except those portions of the Corporation Property set aside as
Exclusive Use Corporation Property, as provided for in this
Declaration.
Section 7 . Components of Condominium Ownership. Each
Condominium in the Property includes : (a) a separate interest in a
Condominium Unit, as defined in Section 1 hereinabove; (b) all
easements, exclusive and nonexclusive, appurtenant to the respec-
tive Condominium Unit; (c) a one/thirteenth (1/13th) undivided
fractional fee interest in the Common Area; and (d) a membership in
the Corporation.
Section 8 . Condominium Numbering. The thirteen (13)
individual Condominium Units which are hereby established and which
shall be individually conveyed are described and numbered on the
Condominium Plan.
50018.154-24590.FCM 051816 -2 1-
Section 9 . Guest Parking Areas . Except as otherwise
provided in this Declaration, the Condominium Plan, or determined
by the Board, any unassigned open parking areas, shall be used only
for guest or temporary resident parking as provided in this
Declaration.
ARTICLE IV
RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE CORPORATION PROPERTY
Section 1 . Owners' Easements . Every Owner shall have
a nonexclusive right and easement of access, use and enjoyment in
and to the Corporation Property in the Project (including, without
limitation, a nonexclusive reciprocal right and easement of
ingress, egress, access, and utilities over the private vehicular
drives in the Project as originally constructed by Declarant) .
Said right and easement shall be appurtenant to and shall pass with
title to every Condominium, subject to the limitations set forth in
Section 2 below.
Section 2 . Limitations on Owners' Easement Rights . The
rights and easements of access, use and enjoyment set forth in
Section 1 hereinabove shall be subject to the provisions of this
Declaration, including, but not limited to, the following:
(a) The right of the Corporation to reasonably
limit the number of guests of Owners;
(b) The right of the Corporation to establish and
enforce reasonable Rules and Regulations pertaining to the use
of the Corporation Property and Exclusive Use Corporation
Property, including all facilities located thereon and to
enact uniform and reasonable Architectural Guidelines, in
accordance with the Article herein entitled "Architectural
Review" ;
(c) The right of the Corporation, in accordance
with its Articles, By-Laws and this Declaration, to borrow
money with the assent of sixty-seven percent (67%) of the
voting power of the Corporation, excluding Declarant, and/or
to Mortgage, pledge, deed in trust or otherwise hypothecate
any or all of its real or personal property as security for
money borrowed or debts incurred, for the purpose of improving
or repairing the Corporation Property and related facilities;
(d) The right of the Corporation to suspend the
voting rights and rights and easements of any Member (and the
persons deriving such rights and easements from any Member) to
use and enjoy any amenities on the Corporation Property
(except for reasonable rights of access to such Member' s
50018.154-24590.FCM 051816 -2 2-
Condominium) for the period during which any Assessment
against such Member' s Condominium remains unpaid and delin-
quent; and after Notice and Hearing, to impose monetary
penalties or suspend such use rights and easements for a
period not to exceed thirty (30) days for any noncontinuing
violation of this Declaration or Rules and Regulations, it
being understood that any suspension for either nonpayment of
any Assessments or breach of such Rules shall not constitute
a waiver or discharge of the Member' s obligations to pay
Assessments as provided herein;
(e) Subject to the terms and provisions of the
Article herein entitled "Mortgagee Protection, " the right of
the Corporation to dedicate or transfer all or any part of the
Corporation Property to any public agency, authority or util-
ity for such purposes and subject to such conditions as may be
agreed to by the Owners . No such dedication or transfer shall
be effective unless : (1) an instrument approving said dedica-
tion or transfer is signed by two authorized officers of the
Corporation attesting that Owners representing at least sixty-
seven percent (67%) of the voting power of the Corporation,
excluding Declarant, approved such action and is recorded in
the Office of the County Recorder, and (2) a written notice of
the proposed dedication or transfer is sent to every Owner not
less than fifteen (15) days nor more than thirty (30) days in
advance; provided, however, that the dedication or transfer of
easements for utilities or for other public purposes consis-
tent with the intended use of the Corporation Property shall
not require the prior approval of the Members of the Corpora-
tion;
(f) The right of Declarant (and its respective
sales agents, representatives and prospective purchasers) to
the nonexclusive use of the Corporation Property, and the
facilities located thereon, without charge for sales, display
access and exhibit purposes; provided, however, that such use
shall cease upon the date that Declarant no longer owns a
Condominium in the Project . Such use shall not unreasonably
interfere with the rights of enjoyment of the Corporation
Property by other Owners;
(g) The right of the Corporation to perform and
exercise its duties and powers as set forth herein;
(h) The right of the Corporation to approve, which
approval shall not be unreasonably withheld, and impose
various conditions on access to the Corporation Property for
the purpose of allowing an Owner to maintain the Exclusive Use
-Corporation Property designed to exclusively serve his
particular Condominium Unit. In addition, the right of the
Corporation, acting through the Board, to reasonably restrict
or condition access to roofs, maintenance and landscaped
50018.154-24590.FCM 051816 -2 3-
areas, and similar areas of the Corporation Property (e .g. ,
require that only a contractor or other person approved by the
Board enter the roof or other Corporation Property, condition
such entry on the contractor' s or other person' s compliance
with requirements that the contractor or other person be
appropriately licensed, maintain insurance coverage on which
the Corporation is named as an additional insured, and/or
execute an indemnity agreement in favor of the Corporation,
etc. ) and to prohibit any modification to any portion of the
Corporation Property (e .g. , the condominium buildings) ;
(i) Other rights of the Corporation, the Architec-
tural Review Committee, the Board, the Owners and Declarant
with respect to the Corporation Property as may be provided
for in this Declaration; and
(j ) Any limitations, restrictions or conditions
affecting the use, enjoyment or maintenance of the Corporation
Property imposed by Declarant, or by the City, or other
governmental agency having jurisdiction to impose any such
limitations, restrictions or conditions, including, but not
limited to, the rights of the City or such other governmental
agency having jurisdiction to use their vehicles or appro-
priate equipment over those portions of the Corporation
Property designed for vehicular movement to perform municipal
functions or emergency or essential public services (e .g. ,
police, fire, emergency services, etc. ) .
Section 3 . Delegation of Corporation Property Use
Rights . Subject to the rights reserved to the Corporation as set
forth herein, any Owner who resides within the Project may delegate
his rights of use and enjoyment to the Corporation Property to the
members of his immediate family and their guests and invitees . In
the event an Owner has rented or leased his Condominium, his rights
to use and enjoy common amenities on the Corporation Property shall
be automatically delegated to his tenants or lessees for the
duration of their tenancy, and the Owner shall forfeit any rights
to use and enjoy any common amenities on the Corporation Property
(except those portions reasonably necessary to access said Owner' s
Condominium to perform normal functions of a landlord) for the
duration of such tenancy. With respect to an installment land sales
contract, the seller under the contract shall be deemed to have
delegated his rights to use and enjoy any common amenities on the
Corporation Property to the purchaser under the contract .
Section 4 . Easements for Vehicular Traffic. In addition
to the general right and easements for access, use and enjoyment
granted herein, there shall be, and Declarant hereby reserves unto
itself, and its successors and assigns, together with the right to
grant and transfer all or a portion of the same, a nonexclusive
appurtenant easement for vehicular ingress, egress and access over
50018.154-24590.FCM 051816 -2 4-
the private vehicular drives within the Project to among other
things access any portion of the Project . -
Section S . Easements for Solar Panels and Air
Conditioners . As to any solar panel (i .e . , area where an Owner
shall have the exclusive right to install a solar panel or
collector) or air conditioning compressor which is located on or
within a portion of the Common Property, there is hereby created,
established and granted an exclusive easement on, over and across
said portion of the Common Property for the permanent placement of
such solar panel or collector and air conditioning compressor in
accordance with the as-built condition by Declarant. Additionally,
and subject to restrictions, conditions, and limitations which may
be imposed by the Board, each such affected Owner is granted an
easement for ingress, egress and access on and over the Common
Property to maintain, repair and replace his or her respective
solar panel or collector and air conditioning compressor; provided,
however, that the Board shall have the right to require that only
a contractor or other person approved by the Board enter or conduct
any activities affecting the Corporation Property (e.g. , in
connection with an Owner' s installation and/or maintenance of the
solar panel or conditioner or air conditioner for his Condominium,
etc . ) and to condition such entry on the contractor' s or other
person' s compliance with reasonable requirements for the protection
of the Corporation Property (e.g. , requirements that the contractor
be appropriately licensed, maintain and provide the Corporation
with written evidence of insurance coverage on which the
Corporation is named as an additional insured, obtain the
Corporation' s written permission to access the Corporation
Property, and/or execute an indemnity agreement in favor of the
Corporation) . The locations of each solar panel (i.e. , area where
Owners shall have the exclusive right to install a solar panel or
collector) and air conditioner pad shall be the locations as built
by Declarant .
Section 6 . Easements for Utilities. The rights and
duties of the Owners of Condominiums within the Project with re-
spect to sanitary sewer, water, electricity, gas, television cable,
telecommunications, and telephone lines, and other facilities,
shall be governed by the following:
(a) Each respective utility company shall maintain
all utility facilities and connections on the Project owned by
such utility company; provided, however, that if any company
shall fail to do so, it shall be the obligation of each Owner
to maintain those facilities and connections located upon,
within or exclusively servicing such Owner' s Condominium
(e.g. , sewer/water laterals) which may be located within
Corporation Property, and it shall be the obligation of the
Corporation to maintain those facilities and connections
located upon the Corporation Property and/or which provide
service to more than one (1) Condominium (e .g. , trunk/main
50016.154-24590.FCM 051816 -2 5
line utilities) . Notwithstanding the foregoing, internal and
external telephone wiring designed to serve a single Condomin-
ium Unit, but located outside the boundaries of the Condomini-
um Unit, shall be maintained by the Owner of said Condominium
Unit . Additionally, the Corporation shall maintain, repair
and replace any stamped concrete or enhanced pavement in the
Corporation Property that is damaged, destroyed or altered in
any manner as a result of repair or maintenance work to
utility facilities or connections performed by a utility
company, unless such repair or maintenance work is caused by
or the result of an Owner' s, his family members' , guests' or
invitees' negligence or intentional conduct .
(b) Wherever sanitary sewer, water or gas connec-
tions, fire alarm, suppression, or protection facilities,
television cables, electricity or telephone lines are in-
stalled within the Project and it becomes necessary to gain
access to said connections, cables and/or lines through the
Corporation Property or a Condominium Unit or Exclusive Use
Corporation Property owned by someone other than the Owner of
the Condominium Unit served by said connections, cables and/or
lines, the Owner of the Condominium Unit served by said
connections, cables and/or lines shall have the right, and is
hereby granted an easement to the full extent necessary
therefor, after reasonable notice to the Corporation and/or
Owner of the other Condominium Unit (as applicable) , to enter
upon such Corporation Property or other Condominium Unit or
Exclusive Use Corporation Property or to have the utility
companies enter upon such Corporation Property or other Condo-
minium Unit or Exclusive .Use Corporation Property to repair,
replace and generally maintain said connections, cables and/or
lines; provided, that any entry pursuant to such easement
rights shall be made after reasonable notice to the
Corporation (if the Corporation Property is to be entered) or
Owner of the Condominium Unit (if the Condominium Unit or
Exclusive Use Corporation Property is to be entered) and at a
reasonable hour of the day, and such entry shall be made with
as little inconvenience to the Owner of the Condominium Unit
to be entered as is practicable, and in the event that any
damage shall be proximately caused by such entry, such damage
shall be repaired at the expense of the Owner making such
entry; provided, however, that the Board shall have the right
to require that only a contractor or other person approved by
the Board enter the roof or other portion of the Corporation
Property and to condition such entry on the contractor' s or
other person' s compliance with reasonable requirements for the
protection of the Corporation Property (e.g. , requirements
that the contractor be appropriately licensed, maintain
insurance coverage on which the Corporation is named as an
additional insured, and/or execute an indemnity agreement in
favor of the Corporation) .
50018.154-24590.FCM 051816 -2 6-
(c) Whenever sanitary sewer, water or gas connec-
tions, fire alarm, suppression, or protection facilities,
television cables , electricity, telecommunications lines, or
telephone lines are installed within the Project, and said
connections, facilities, cables and/or lines serve more than
one (1) Condominium Unit, the Owner of each Condominium Unit
served by said connections, facilities, cables and/or lines
shall be entitled to the full use and enjoyment of such
portions of same as service his Condominium Unit .
(d) In the event of a dispute between Owners re-
specting the repair or rebuilding of the aforesaid connec-
tions, facilities, cables and/or lines, or the sharing of the
cost thereof, upon written request of one (1) of such Owners
addressed to the Corporation, the matter shall be submitted to
the Board who shall decide the dispute, and the decision of
the Board shall be final and conclusive on the Owners .
(e) Easements over the Project (including the
Condominium Units) for the installation and maintenance of
electric and telephone lines, water, gas, fire sprinkler, fire
alarm, suppression, and protection facilities, drainage and
sanitary sewer connections and facilities, television antenna
cables and facilities, and telecommunications lines and
facilities, all as shown on the recorded map of the Project
and/or the improvement plans submitted by Declarant and
approved by the City, and as may be hereafter required or
needed to service the Project, are hereby reserved by
Declarant, together with the right to grant and transfer all
or a portion of the same.
Section 7 . Easements for Maintenance of the Corporation
Property by the Corporation. There is hereby created, granted and
reserved a nonexclusive easement in favor of the Corporation for
ingress, egress and access on, over and across all portions of the
Project (including but not limited to the Condominiums) as reason-
ably required by the Corporation to perform its maintenance obliga-
tions set forth in this Declaration or adopted by the Board
(including, without limitation, inspection and maintenance of fire
sprinkler heads and other elements of the automatic fire sprinkler
and alarm system, inspection and maintenance of storm drain
facilities and BMPs required to be maintained by the Corporation,
etc . ) . In the event it becomes necessary for the Corporation to
enter upon any Condominium Unit or Exclusive Use Corporation
Property for purposes of : (a) performing its maintenance
obligations as set forth in this Declaration and/or the Rules and
Regulations; or (b) bringing an Owner and/or his Condominium into
compliance with this Declaration, in accordance with the provisions
set forth herein, the Corporation, and its duly authorized agents
and employees, shall have the right, after reasonable notice to the
Owner and at a reasonable hour of the day, to enter upon or within
such Owner' s Condominium Unit for the performance of such work.
50018.154-24590.FCM 051816 -2 7
Such entry shall be made with as little inconvenience to the Owner
as is practicable, and in the event that any damage shall be
proximately caused by such entry, the Corporation shall repair the
same at its expense . Notwithstanding the foregoing, in the event of
an emergency, or for regular maintenance obligations (e.g. ,
inspection of fire sprinkler heads, etc. ) , such right of entry
shall be immediate .
Section 8 . Easements for Clustered Mailboxes . In order
to comply with the various requirements of the City and the United
States Postal Service, clustered mailboxes may be installed within
the Project . Easements are hereby created on and over the affected
portions of the Project and granted in favor of all Owners and the
United States Postal Service for delivery, deposit and retrieval of
mail . The Corporation shall maintain the clustered mailbox
structures in the Project not otherwise maintained by the United
States Postal Services (excluding each Owner' s individual mailbox,
and the hinges, keys and locks thereto, all of which are to be
maintained by the Owner) .
Section 9 . Easements Over Sidewalks . There are hereby
created and reserved non-exclusive reciprocal appurtenant ease-
ments, granted in favor of all Owners, the members of their
families, their lessees and tenants and/or their respective guests
and invitees, for pedestrian access, use and enjoyment on, over and
across all sidewalks and walkways within the Corporation Property,
if any.
Section 10 . Easements for Drainage. There are hereby
created, granted and reserved over the Corporation Property and
Condominiums (e .g. , Exclusive Use Corporation Property yard, patio,
deck, and porch areas) easements for drainage according to the
established patterns for drainage created by the approved grading
and/or building plans for the Project, including cross-Condominium
drainage, as well as according to Declarant' s as-built condition,
and actual, natural, existing drainage patterns . Each Owner shall
maintain his respective Condominium and Exclusive Use Corporation
Property in such a manner to ensure that no water collects or ponds
in any location adjacent to any walls or fences, if any, of the
immediately adjacent Condominium. Without limiting potential
liability as a result of other activities or actions, each Owner
shall be liable for any damage that occurs to the Corporation
Property and/or a Condominium Unit as a result of an Owner' s
modifications to such Owner' s Condominium or Exclusive Use
Corporation Property. Each Owner covenants and agrees that he
shall not obstruct or otherwise interfere with the drainage
patterns of waters over the yard, patio, deck and porch areas of
his Condominium, or, in the alternative, that in the event it is
necessary and essential to alter said drainage patterns, he will
make adequate provisions for proper drainage and submit such plans
for written approval by the Architectural Review Committee . Each
Owner shall regularly remove debris and any other obstructions from
50018.154-24590.FCM 051816 -2 8-
the drainage devices located within his Exclusive Use Corporation
Property patio, yard, deck and/or porch area. Each Owner
understands that modifications to the drainage facilities as built
by the Declarant or the actual,, natural, existing drainage patterns
in the Project or the failure to maintain or remove materials
interfering with the operation of such drainage facilities could
result in damage to the Corporation Property and Condominiums
(e .g. , flooding, etc. ) . Without limiting potential liability as a
result of other activities or actions, each Owner shall be liable
for any damage that occurs to the Corporation Property and/or a
Condominium Unit as a result of an Owner' s modifications to such
Owner' s Condominium or Exclusive Use Corporation Property or
failure to maintain those portions of the drainage facilities
described and/or depicted as maintained by the Owner on Exhibit "D"
to this Declaration (if any) .
Section 11 . Easement for Area Drains . Declarant hereby
establishes, reserves, and grants to the Corporation and Owners,
nonexclusive reciprocal easements over the Corporation Property for
drainage purposes to accommodate the drainage system, including,
but not limited to area drains and pipes, originally installed by
Declarant . The Condominium Owner served by said drainage system
shall be responsible to maintain and preserve said system (e.g. ,
within his Condominium, Exclusive Use Corporation Property patio,
yard, deck, porch area, or other Exclusive Use Corporation Area) in
an operating condition to ensure proper drainage on, over, under,
across and through the yard, patio, deck, and porch area of his
Condominium in accordance with the drainage patterns created by the
as-built condition by Declarant for the Project and the actual,
natural, existing drainage patterns, and shall bear the cost of the
maintenance, repair or replacement associated with the drainage
system which affects his Condominium without the prior written
approval of the Board. No Owner shall alter in any manner
whatsoever, block, or remove the drainage system. In the event any
portion of the drainage system is damaged, destroyed or not
properly maintained, any Condominium Owner affected by such
drainage system may cause said repair, restoration or maintenance
work to be completed and shall be entitled to recover the appropri-
ate expenses from the Owner responsible for such damage, destruc-
tion or improper maintenance . Notwithstanding the foregoing, if
any portion of the drainage system is damaged or destroyed as a
proximate result of any act or omission of any Owner, or any member
of his family, guests, tenants, lessees and/or invitees (without
regard to fault) , such Owner shall immediately notify the Corpora-
tion of such damage or destruction and shall bear all of the costs
related thereto, including any cost and/or expense related to the
repair of the drainage system and any personal injury or property
damage to any person or Condominium in the Project .
Section 12 . Easements for Construction and Sales . De-
clarant hereby reserves unto itself, and its successors and
assigns, together with the right to grant and transfer all or a
50018.154-24590.FCM 051816 -2 9
portion of the same, until the earlier of such time as Declarant no
longer has an ownership in Tract No. 17930 or five years from the
recordation of this Declaration, nonexclusive easements for access,
ingress and egress on and over the Project to carry on normal sales
activity, including the operation of a models complex, sales office
and parking area, and the display of promotional signs and exhibits
in connection with the sale or lease of Condominiums in the
Project .
Section 13 . Easements for Master Antennae, Cable Tele-
vision and Alarm System Cahling. There are hereby reserved for the
benefit of Declarant, and its successors and assigns, together with
the right to grant and transfer all or portions of the same,
nonexclusive easements of access, ingress and egress to the Project
for purposes of installation, operation, maintenance, repair,
inspection, replacement and removal of master antennae, cable
television service lines, alarm system cabling and all related
facilities and equipment . Such easements shall he freely
transferable to any other person or entity for the purpose of
providing such services . All such master antennae, cable television
service lines and alarm system cabling shall remain the property of
Declarant or its successors and assigns . The exercise of all rights
reserved hereunder shall not unreasonably interfere with the rea-
sonahle use and enjoyment of the Project . Declarant, or its suc-
cessors and assigns, shall he responsible for any damage in any way
arising out of, or in connection with, the rights and activities
reserved hereunder.
Section 14 . Reservation of Construction Rights by De-
clarant . In addition to the rights reserved by Declarant to control
development of the Project as set forth in the Article hereinahove
entitled "Introduction to Monarch Walk, " nothing in this Declara-
tion shall limit the right of Declarant to maintain temporary
fences, limit access by Owners to portions of the Corporation
Property, establish, reserve and/or grant additional licenses,
easements and rights-of-way in favor of Declarant, utility
companies or others as may, from time to time, he reasonably
necessary for the development of the Project and the sale of the
Condominiums therein. The foregoing rights established and reserved
by Declarant shall he subject only to the applicable regulations
and requirements of the City and CalBRE and shall not result in the
interference with the reasonable and regular use and enjoyment of
the Corporation Property by Owners .
Section 15 . Easement for Public Service Uses . In addi-
tion to the foregoing easements over the Corporation Property,
there are hereby created, established and granted easements for
public services, including, but not limited to, the right of
police, fire, emergency vehicle access, and other public services
to enter upon the private streets, sidewalks, access ways, and
other Corporation Property for purposes of providing police, fire,
50018.154-24590.FCM 051816 -3 0-
and emergency vehicle access services and serving the health and
welfare of all Owners in the Project .
Section 16 . Control of Corporation Property. Control
and/or title of the Corporation Property (excluding those portions
of the Corporation Property which are subject to the various rights
reserved by Declarant as set forth in this Declaration) shall be
turned over by Declarant to the Corporation prior . to or simulta-
neously with the first close of escrow for the sale of a Condomini-
um in the Project . Without limiting the generality of the
foregoing, Declarant shall convey fee title to Corporation Property
to the Corporation free and clear of all encumbrances and liens,
except property rights in and to the Corporation Property which are
of record or created herein, and any current real property taxes,
which shall be prorated to the date of transfer. As more particu-
larly set forth in the Article herein entitled "Enforcement of
Bonded Obligations, " in the event that Improvements proposed to be
constructed within the Corporation Property have not been completed
prior to the first close of escrow in the Project, as may be evi-
denced by a Notice of Completion recorded in the official Records
of the County, the completion of such Improvements shall be assured
in accordance with Section 11018 . 5 of the California Business and
Professions Code, or any similar statute- hereinafter enacted, and
the applicable regulations of CalBRE. The Corporation shall be
obligated to undertake all maintenance responsibilities for the
Corporation Property when the Corporation levies Assessments for
the maintenance thereof, or when the City approves the Corporation
Property Improvements (as evidenced by the release by the City of
any bonds posted by Declarant as required by City) installed by
Declarant, whichever is first to occur. Notwithstanding the fore-
going, if the contractors or subcontractors of Declarant are con-
tractually obligated to maintain or warrant the landscaping or
other Improvements on the Corporation Property for a specified
period in which said contractors or sub-contractors shall perform
such maintenance, the Corporation shall not interfere with the
performance of such warranty or other contractual maintenance
obligations . Maintenance performed by such contractors or subcon-
tractors shall not serve to postpone the commencement of
Assessments pursuant to this Declaration, nor entitle an Owner to
claim any offset or reduction in the amount of such Assessments .
Declarant is not obligated to install any Corporation Property
Improvements other than those required by the City pursuant to the
Project approval requirements . The nature, design, quality and
quantity of all Improvements to the Corporation Property shall be
determined by Declarant in its sole discretion in accordance with
the terms of the Project approvals . In the event that a dispute
arises between Declarant and the Corporation with respect to the
nature, design, quality or quantity of the Improvements, or the
acceptance of maintenance responsibilities therefor, the Corpora-
tion shall be obligated to accept ownership and/or control of the
Corporation Property and undertake maintenance responsibilities
pending resolution of the dispute . Notwithstanding anything to the
50018.154-24590.FCM 051816 -3 1-
contrary herein or in the By-Laws for the Board, commencing on the
date of the first annual meeting of the Owners, Declarant shall
relinquish control over the Corporation' s ability to decide whether
to initiate a construction defect claim under Division 2 , Part 2 ,
Title 7 (commencing with Section 895) of the California Civil Code.
Therefore, the Declarant, current employees and agents of Declar-
ant, Board members who are appointed by Declarant, Board members
elected by a majority of votes cast by Declarant, and all other
persons whose vote or written consent is inconsistent with the
intent of the preceding sentence, are prohibited from participating
and voting in any decision of the Corporation or Owners to initiate
a defect claim.
Section 17 . Easements for Encroachments . Declarant
reserves for its benefit (together with the right to grant and
transfer all or a portion of the same) and the benefit of the
Owners, and hereby creates, establishes, and grants to the Owners
a reciprocal easement appurtenant to each Condominium over the
Condominium Units and Common Property for the purpose of (i)
accommodating any existing encroachment of any wall, eave,
overhangs, wing walls and/or chimneys of any Improvement existing
only as of the date the escrow initially closed for the sale of the
Condominium from the Declarant to an Owner, and (ii) maintaining
the same and accommodating authorized construction, reconstruction,
repair, shifting, movement, or natural settling of such
encroachments or Improvements . Declarant further reserves (together
with the right to grant and transfer all or a portion of the same) ,
establishes and grants reciprocal easements for utility (including,
without limitation, sanitary sewer, water or gas lines or connec-
tions, fire water lines, fire alarm, suppression, or protection
lines or facilities, television cables, and electricity or
telephone lines) services and repairs , replacement and maintenance
of the same over the Common Property for the benefit of the Owners .
Use of the foregoing easements may not unreasonably interfere with
each Owner' s use and enjoyment of Owner' s respective Condominium.
Section 18 . Party Fence/Wall Easements . Those Owners who
have a common exterior wall or fence adjoining their Exclusive Use
Corporation Property patio or yard areas shall equally have the
right to the use of such wall or fence, except that each shall have
the exclusive right to the use of the interior surface of the wall
or fence facing his or her Condominium Unit or patio or yard area.
Neither Owner shall use any portion of the wall or fence so as to
interfere with the use and enjoyment of the other Owner. In
addition, neither Owner shall increase the height of the wall or
fence beyond the height originally installed by Declarant or attach
any structure, appendage, or other item to the wall or fence,
including, without limitation, any extension of the wall or fence,
lattice work, green plastic privacy mesh, or shade. In the event
that any portion of such wall or fence, except the interior surface
of one (1) side, is damaged or injured from any cause, other than
the act or negligence of either party, it shall be repaired or
50018.154-24590.FCM 051816 -3 2-
rebuilt at their joint expense . The construction of patio or yard
walls affects numerous Condominiums throughout the Project . In many
situations, due to the construction of such walls, the footings
thereof may protrude into the area of the respective Condominium' s
Exclusive Use Corporation Property patio or yard areas, for
example, one and one-half (1-1/2' ) , two (2) , five and one-half (5-
1/2 ' ) feet , at varied depths . Some of these same walls may have
sub-drains installed adjacent to such footings . Therefore, the
Owners and Corporation acknowledge and agree not to, under any
circumstance, plant any tree, shrub or other landscaping, or build,
erect or otherwise install any Improvement of any kind which would
impede or interfere with the sub-drain system adjacent to such
wall, or impair the structural integrity of such wall . All
retaining walls located in Exclusive Use Corporation Property areas
in the Project shall be maintained by the Owner of the Condominium
which includes such Exclusive Use Corporation Property, unless
otherwise described and/or depicted as maintained by the
Corporation on an Exhibit attached hereto or a recorded Notice of
Annexation (e.g. , Exhibit "G" hereto) .
Section 19 . Reservation of Easements for Inspection,
Maintenance, and Repair.. Declarant hereby reserves unto itself, and
its successors and assigns, together with the right to grant or
transfer all or a portion of same, non-exclusive easements to enter
any Condominium, including but not limited to the interior of the
Residence, yard, patio, deck, porch, and other exterior areas, for
purposes of inspection, testing, and repair as determined
appropriate by Declarant (e.g. , as part of a program of customer
service, etc. ) . Such entry shall be made after reasonable notice
to the Owner and at a reasonable hour of the day and with as little
inconvenience to the Owner.
Section 20. Other Easements. In addition to the foregoing,
the Project is subject to all easements set forth on the recorded map of
Tract No. 17930 (e.g. , public street and utilities, etc. ) , as well as any
and all other easements recorded against the property comprising the
Project in the Office of the County Recorder. Declarant reserves for its
benefit a non-exclusive easement over the entirety of the Project as
reasonably necessary to maintain, repair, and replace any Improvements
(including, without limitation, storm drainage facilities and other Best
Management Practices) that have not yet been conveyed to the Corporation.
ARTICLE V
THE CORPORATION
Section 1 . Membership. Every person or entity who or which
is an Owner, as defined hereinabove, shall be a Member of the
Corporation. The foregoing is not intended to include persons or entities
who hold an interest in a Condominium in the Project merely as security
for the performance of an obligation.
50018.154-24590.FCM 051816 -3 3-
Section 2 . Voting Rights . The Corporation shall have two
(2) classes of voting membership, as follows :
Class A. Class A Members shall be all Owners, with the
initial exception of the Declarant until the conversion of the Class
B Members to Class A Members, and shall be entitled to one (1) vote
for each Condominium owned. When more than one (1) person holds an
interest in any Condominium, all such persons shall be Members . The
vote for such Condominium shall be exercised as they among
themselves determine, but in no event shall more than one (1) vote
be cast with respect to any Condominium. The Corporation shall
recognize the vote cast by a co-Owner, unless another co-Owner shall
cast a conflicting vote, in which case the votes cast by both co-
Owners shall be null and void, and not recognized by the
Corporation. The nonvoting co-Owner or co-Owners shall be jointly
and severally responsible for all of the obligations imposed upon
the jointly-owned Condominium. "
Class B. The Class B Member shall be the Declarant and
shall be entitled to three (3) votes for each Condominium owned in
the Project upon which Declarant is then paying the appropriate
monthly Assessments provided for hereinbelow. The Class B membership
shall cease and be converted to Class A membership upon the
happening of any of the following events, whichever occurs earliest:
(1) When the total votes outstanding in the Class
A membership equal the total votes outstanding in the Class B
membership; or
(2) The second anniversary of the first close of
escrow for the sale of a Condominium in the Project.
Any action by the Corporation which must have the approval of
the membership of the Corporation before being undertaken shall require
the vote or written assent of both a majority of the Class B membership
as well as a majority of the Class A membership, so long as there are two
(2) outstanding classes of membership, unless a specific provision of
this Declaration or the By-Laws or Articles of the Corporation requires
(i) the approval of a greater percentage of the voting membership, or
(ii) a vote by Members other than Declarant, or (iii) a specific approval
percentage of all the Members. Notwithstanding the foregoing, any action
by the Corporation pursuant to the Article contained herein entitled
"Enforcement of Bonded Obligations" shall only require a majority of the
voting power of the Owners, other than Declarant.
Notwithstanding the foregoing, (1) the Class A Members shall
be entitled to elect at least one of the members of the Board, so long
as there are two (2) classes of membership outstanding in the
Corporation, and all members of the Board (including those appointed by
Declarant) shall be subject to removal, with or without cause, as
provided in the By-Laws and California law. The requirements of this
Section are intended and shall be construed to comply with the time frame
and other requirements set forth in California law and the regulations
of the California Commissioner of Real Estate (e.g. , CalBRE Regulation
2792 .18, 2792 . 19, etc. ) regarding the transfer of control of the
Corporation from the Declarant to the Members . Notwithstanding the
50018.154-24590.FCM 051816 -3 4-
foregoing or any provision in this Declaration, transfer of control of
the Corporation shall pass the Owners of the Condominiums no later than
the latest of the following: (a) one hundred twenty (120) days after the
date by which seventy-five percent (75%) of the Condominiums in the
project have been conveyed by the Declarant to the Owners; (b) three (3)
years after completion of the project, as evidenced by the first
conveyance of a Condominium by Declarant to an Owner; or (c) the time
frame established under state or local condominium laws if specific
provisions regarding transfer of control exist. These provisions are
intended to substantially comply with applicable regulations of
California regarding the transfer of control of the Corporation to
Members other than Declarant .
Section 3. Vesting of Voting Rights. The voting rights
attributable to any given Condominium in the Project, as provided for
herein, shall not vest until the Assessments provided for hereinbelow
have been levied by the Corporation against said Condominium.
Section 4. Suspension of Voting Rights. As more par-
ticularly set forth in the Article entitled "General Provisions, " the
Board shall have the authority, among other things, to suspend the voting
rights of any Member to vote at any meeting of the Members for .any period
during which such Owner is delinquent in the payment of any Assessment,
regardless of type, it being understood that any suspension for
nonpayment of any Assessment shall not constitute a waiver or discharge
of the Member' s obligation to pay the Assessments provided for in. this
Declaration.
Section 5 . Transfer. The Corporation membership held by any
Owner of a Condominium shall not be transferred, pledged or alienated in
any way, except as incidental to the sale of such Condominium. In the
event of such sale, the Corporation membership may only be transferred,
pledged or alienated to the bona fide purchaser or purchasers of the
Condominium, or to the Mortgagee (or third party purchaser) of such
Condominium upon a foreclosure sale. Any attempt to make a prohibited
transfer is void and will not be reflected upon the books and records of
the Corporation. The Corporation may levy a reasonable transfer fee
against new Owners and their Condominiums (which fee shall be a
Compliance Assessment chargeable to such new Owner) to reimburse the
Corporation for the actual administrative cost of transferring the
memberships to the new Owners on the records of the Corporation.
Section 6. Record Dates. For the purposes of determining
Members entitled to notice of any meeting, to vote or to exercise any
other rights in respect of any lawful action, the Board may fix in
advance record dates as provided in the By-Laws.
ARTICLE VI
POWERS AND DUTIES OF THE CORPORATION
Section 1. Management Body. The Corporation is hereby
designated as the management body of the Project. The Members of the
Corporation shall be the Owners in the Project as provided herein, and
the affairs of the Corporation shall be managed by a Board of Directors,
50018.154-24590.FCM 051816 -3 5-
as more particularly set forth in the By-Laws . The initial Board shall
be appointed by the Declarant. Thereafter, the Directors shall be elected
as provided in the By-Laws.
Section 2 . Powers. The Board, for and on behalf of the
Corporation, shall have the right and power to do all things necessary
to conduct, manage and control the affairs and business of the
Corporation. Subject to the provisions of the Articles, the By-Laws and
this Declaration, the Board shall have all general powers authorized
under the California Corporations Code for nonprofit, mutual benefit
corporations, and shall have the following specific powers :
(a) Enforce the provisions of this Declaration
(including, but not limited to, the ability to record a notice of
noncompliance or violation, unless otherwise provided by common
law) , including any amendments thereto, and all contracts or any
agreements to which the Corporation is a party;
(b) Acquire, manage, maintain, repair and replace all
Corporation Property and Improvements located thereon, including all
personal property, in a neat, clean, safe and attractive condition
at all times, and pay all utilities, gardening and other necessary
services for the Corporation Property, all as more specifically set
forth herein, including the Article entitled "Repair and
Maintenance" ;
(c) Maintain fire, casualty, liability and fidelity
bond coverage, and other insurance coverage pursuant to the terms
of that Article herein entitled "Insurance" ;
(d) Obtain, for the benefit of the Corporation
Property, all commonly metered water (domestic and, if applicable,
fire) , sewer, gas and electric services, refuse collection and cable
(or master antenna) television service, if any;
(e) Employ and retain a professional manager and/or
management company to perform all or any portion of the duties and
responsibilities of the Board and engage such other personnel
(including attorneys, budget preparers, and accountants) as neces-
sary for the operation of the Project and administration of the
Corporation;
(f) Pay all taxes and special assessments which would
be a lien upon the entire Project or the Corporation Property, and
discharge any lien or encumbrance levied against the entire Project
or the Corporation Property;
(g) Pay for reconstruction of any portion of the
Corporation Property damaged or destroyed;
(h) Delegate its powers;
(i) Adopt reasonable Rules and Regulations concerning
the maintenance, improvement, use and/or occupancy of the Project
and election procedures in compliance with California Civil Code
Sections 4340-4370;
50018.154-24590.FCM 051816 -3 6-
(j ) Enter into any Condominium when necessary in
connection with maintenance or construction for which the
Corporation is responsible;
(k) Execute lot line and condominium boundary
adjustments (and corresponding deeds) , enter into a maintenance
and/or other agreement with Declarant or a third party, subject to
Civil Code Section 4600, if applicable, grant fee title to or
easements over the Corporation Property to Declarant or a third
party, and/or receive fee title to or an easement over real property
owned by Declarant or a third party as reasonably necessary due to
those conditions in the field where it is not readily apparent where
Lot lines are located and the respective party' s maintenance
responsibilities commence and end, and such adjustments, deeds
and/or agreements will promote a clearly defined and uniform mainte-
nance plan by the respective parties or as otherwise determined
appropriate by a majority vote of the Board;
(1) Grant exclusive easements or licenses over portions
of the Corporation Property in accordance with California Civil Code
Section 4600, as same may be amended from time to time, and (where
required by law) with the assent of sixty-seven percent (67%) of the
voting power of the Corporation;
(m) Levy and collect Assessments on all Condominiums in
the Project for which Assessments have commenced, and enforce
payment of such Assessments in accordance with the terms and
provisions set forth in the Article herein entitled "Effect of
Nonpayment of Assessments: Remedies of the Corporation" ;
(n) Subject to compliance with Section 5925 et sect. of
the California Civil Code, as same may be amended from time to time,
institute, defend, settle or intervene on behalf of the Corporation
in any dispute resolution proceeding in matters pertaining to (i)
enforcement of the Declaration, Rules and Regulations and By-Laws;
(ii) damage to the Common Property; (iii) damage to the Condominium
Units which arises out of, or is integrally related to, damage to
the Common Property that the Corporation is obligated to maintain
or repair;
(o) Negotiate and enter into agreements for
Telecommunication Services, with terms not in excess of ten (10)
years, provided that Declarant does not have a direct or indirect
ownership interest in the supplier of such services or equipment
equal to or greater than ten percent (10%) ;
(p) Negotiate and enter into agreements with any
nonprofit corporations (e .g. , governing portions of Tract No.
17930) . including the streets and recreational amenities located
thereon) or Local Government Agencies;
(q) Negotiate and enter into contracts in which the
Corporation enters into litigation or any alternative dispute
resolution procedure when the Corporation' s obligation to pay for
services is set in whole or in part on a contingency basis except:
(i) contracts for collection of assessment or other accounts
50018.154-24590.FCM 051816 -3 7
receivable; (ii) contracts involving evaluation of services; or
(iii) contracts with a total amount to be paid by the Corporation
in excess of Forty Thousand Dollars ($40, 000 . 00) ;
(r) As applicable, and subject to the Limited Warranty,
comply with terms and provisions of California Civil Code Section
6000, as amended, in connection with any potential litigation based
upon a claim for defects in the design or construction of the
Corporation Property;
(s) Execute all necessary documents in order to
effectuate the Limited Warranty, if applicable, including, without
limitation, any registration form or its equivalent that may be
required under the Limited Warranty;
(t) Authorize an agent, management company represen-
tative, or bookkeeper to appear and participate in a small claims
court action on behalf of the Corporation in accordance with
California Code of Civil Procedure Section 116 .540 (i) , (j ) ;
(u) Without any limitation of the foregoing powers, (i)
operate, maintain, and inspect the Corporation Property and its
various components in conformance with any Maintenance Guidelines
and any Maintenance Manual, and (ii) review any Maintenance Manual
for necessary or appropriate revisions as deemed necessary by the
Board (Declarant recommends at least an annual review) ; and
(v) Perform any and all other acts and things that a
nonprofit, mutual benefit corporation organized under the laws of
the State of California is empowered to do, which may be necessary,
convenient or appropriate in the administration of its affairs for
the specific purposes of meeting its duties as set forth in this
Declaration.
Section 3 . Duties. The Board shall perform and execute the
following duties for and on behalf of the Corporation:
(a) Provide or cause to be provided (e.g. , by a private
or public entity) , water, sewer, gas, electricity, garbage and trash
collection, regular periodic drainage device clearing and other
necessary utility services for the Corporation Property, if any,
and, if not separately metered or provided, for the Condominium
Units (subject to reimbursement) ;
(b) Provide insurance for the Corporation and its
Members in accordance with the provisions of the Article hereinbelow
entitled "Insurance, " and distribute notices as may be required by
law;
(c) Acquire, own, maintain and repair all portions of
the Corporation Property in a neat, clean, safe, attractive,
sanitary and orderly condition at all times. Without limiting the
generality of the foregoing, the Corporation shall be responsible
for maintaining, in a condition comparable to the condition
initially approved by the City, the landscaping in those portions
of certain Condominium Units described and/or depicted on Exhibit
50018.154-24590.FCM 051816 -3 8
"I" attached hereto, the condominium buildings located on Lot 1 of
Tract No. 1793D (excepting therefrom the Condominium Units) ,
together with all Improvements, including metal awnings, bearing
walls, columns, beams, roofs, slabs, foundations, chimneys, fences,
exterior stairs and landings, reservoirs, tanks, pumps, the fire
sprinkler system, including sprinkler heads which protrude into the
airspace of the Condominium Unit, if any, fire standpipes, fire
alarm systems, fire extinguishers, private fire hydrants, and other
fire prevention equipment and/or facilities located on Corporation
Property, if any, and other central services, pipes, ducts, flues,
chutes, conduits, wires, exterior lighting and other utility in-
stallations wherever located (except all utility lines, installa-
tions and/or outlets thereof when located within or exclusively
serving one Condominium Unit, including the internal and external
telephone wiring designed to exclusively serve a Condominium Unit) ,
the private vehicular drives, common parking areas, and sidewalks
located within the Project, those portions of the fences and walls
in the Project described and/or depicted as maintained by the
Corporation on Exhibit "G" attached hereto, the private on-site
common water lines and facilities described and/or depicted as
maintained by the Corporation on Exhibit "F" attached hereto
(specifically excluding each water lateral that exclusively serves
a Condominium Unit from within the residence to the water meter) ,
the private on-site common sewer lines and facilities described
and/or depicted as maintained by the Corporation on Exhibit "E"
attached hereto (specifically excluding each sewer lateral
exclusively serving a Condominium Unit from within the residence to
the point of connection to the private common sewer line within the
Project) , common mailbox structures, common irrigation equipment,
the private storm drain system for the Project described and/or
depicted as maintained by the Corporation on Exhibit "D" attached
hereto, poles, signs, Project entry monuments, common trash bins,
common recreational facilities (e.g. , open space, outdoor furniture,
fountain, etc. ) , and common landscaping located on the Corporation
Property, excepting therefrom landscaping and improvements located
in the Exclusive Use Corporation Property;
(d) Retain a professional property management company
to manage the Corporation and the inspection, repair, and mainte-
nance of the Corporation Property in accordance with the provisions
of this Declaration;
(e) Contract for any other material, supplies,
furniture, labor, services, maintenance, repairs, structural
alterations and insurance which the Corporation is required to pay
for pursuant to the terms and provisions of this Declaration or by
law;
(f) Pay all real and personal property taxes and
Assessments which the Corporation is required to pay for pursuant
to the terms and provisions of this Declaration or by law, unless
separately assessed to Owners; provided, however, that it shall be
the obligation of each Owner to pay his respective share of the tax
assessment levied on the Project prior to separate assessments by
the tax assessor pursuant to Section 2188 .6 of the California
50018_154-2 4 12 0.FCM 032416 -3 9 APPROVED AS TO FORM
r
„Michael Gates,Clty Attorney
i
Revenue and Taxation Code, as same may be amended, from time to
time;
- (g) Cause a yearly inspection to be made, by a licensed
engineer or otherwise qualified individual, of any slope areas and
drainage devices located within the Corporation Property;
(h) Accept, as part of the Project, all Owners as
Members of the Corporation. In addition, the Corporation shall
accept all Corporation Property, conveyed, leased or otherwise
transferred to it, if any, by Declarant, its successors or assigns,
or an appropriate governmental agency;
(i) Cause financial statements and a reserve funding
plan (e .g. , consistent with the requirements of California Civil
Code Sections 5300-5320 and 5500-5580 and FHLMC, FNMA, GNMA and
VA/FHA) for the Corporation to be regularly prepared and copies
distributed to each Member of the Corporation, regardless of the
number of Members or the amount of assets of the Corporation, which
financial statements and reserve funding plan shall separately
account for the collection and use of funds received for Compliance
Assessments, Special Assessments, and Special Benefit Assessments:
(1) A pro forma operating statement (budget) for
the immediately following fiscal year shall be distributed
within the time period specified by statute prior to the
beginning of the fiscal year (e.g. , not less than 30 days nor
more than 90 days prior to the beginning of the fiscal year) ,
and shall contain the following information:
i) An itemized estimate of the Corpora-
tion's revenue and expenses (including, without
limitation, adequate funding for insurance coverage and
deductibles) , determined on an accrual basis;
ii) A summary, printed in bold type, of the
current status of the Corporation's reserves, based upon
the most recent review or study conducted pursuant to
California Civil Code Sections 5300 and 5550-5570
("Study") , as may be amended, from time to time, and
prepared in accordance with all requirements of law
(e.g. , Civil Code Sections 5300 and 5550-5570) ;
iii) A statement prepared in accordance with
all requirements of law (e.g. , Civil Code Section 5300)
as to all of the following:
(A) Whether the Board has determined to
defer or not undertake repairs or replacement of
any major component with a remaining life of 30
years or less, including a justification for the
deferral or decision not to undertake the repairs
or replacement.
(B) Whether the Board, consistent with the
reserve funding plan adopted pursuant to Section
50018.154-24120.FCM 032416 -4 0-
5550, has determined or anticipates that the levy
of one (1) or more Special Assessments will be
required to repair, replace or restore any major
component (e.q. , Improvement to the Corporation
Property) or to provide adequate reserves therefor.
If so, the statement shall also set out the
estimated amount, commencement date, and duration
of the Special Assessments .
(C) The mechanism or mechanisms by which the
Board will fund reserves to repair or replace major
components, including assessments, borrowing, use
of other assets, deferral of selected replacement
of repairs, or alternative mechanisms .
(D) Whether the Corporation has any
outstanding loans with an original term of more
than one year, including the payee, interest rate,
amount outstanding, annual payment, and when the
loan is scheduled to be retired.
iv) A general statement prepared in
accordance with all requirements of law (e.g. , Civil
Code Section 5300) setting forth the procedures utilized
by the Corporation to calculate and establish reserves
to defray the costs of future repairs, replacements or
additions to the Corporation Property Improvements;
v) A statement as to whether the Board has
determined or anticipates that the levy of one (1) or
more Special Assessments will be required to repair,
replace or restore any major Improvements to the
Corporation Property, or to provide adequate reserves
therefor; and
vi) A summary of the reserve funding plan
adopted by the Board in accordance with Civil Code
Section 5550 . The summary shall include notice to the
Owners that the full reserve study plan is available
upon request, and the Corporation shall provide the full
reserve study plan to any Owner upon request.
Notwithstanding the foregoing, in lieu of
distributing the pro forma operating budget required
hereinabove, the Board may elect to distribute a summary of
the pro forma budget to all Members with a written notice, in
at least 10-point bold type on the front page, that the pro
forma - budget is available at the business office of the
Corporation, or at another suitable location within the
Project, and that copies will be provided upon request and at
the expense of the Corporation. If any Member requests that a
copy of the pro forma budget required herein be mailed to said
Member, the Corporation shall mail the copy to the Member by
first-class mail at the expense of the Corporation, within
five (5) days of the receipt of said request;
50018.154-24590.FCM o51816 -4 1-
(2) A balance sheet as of an accounting date
which is the last day of the month closest in time to six (6)
months from the date of the close of escrow for the first sale
of a Condominium, and an operating statement for the period
from the date of the first close of escrow to the said ac-
counting date, shall be distributed within sixty (60) days
after the accounting date. This operating statement shall
include a schedule of Assessments received, and receivable,
identified by the number of the Condominiums assessed;
(3) An annual report consisting of the following
shall be distributed within one hundred twenty (120) days
after the close of the fiscal year:
i) A balance sheet as of the last day of
the Corporation' s fiscal year;
ii) An operating (income) statement for the
fiscal year;
iii) A statement of changes in financial
position for the fiscal year; and
iv) Any information required to be reported
pursuant to Section 8322 of the California Corporations
Code and Section 5300 of the California Civil Code, as
each may be amended from time to time.
This annual report shall ordinarily be prepared by a licensee
of the California Board of Accountancy, in accordance with
generally accepted accounting principles, for any fiscal year
in which the gross income of the Corporation exceeds Seventy-
Five Thousand Dollars ($75, 000 . 00) . However, if for any reason
the report is not prepared by a licensee of the California
Board of Accountancy, said report shall be accompanied by a
certificate from an authorized officer of the Corporation that
the statements were prepared without audit from the books and
records of the Corporation;
(4) A statement of the Corporation' s policies and
practices in enforcing its remedies against Members for
nonpayment of Assessments, as set forth in the Article herein
entitled "Effect of Nonpayment of Assessments : Remedies of the
Corporation, " which shall be distributed within the time
period required by statute prior to the beginning of the
fiscal year (e.g. , not less than 30 days nor more than 90 days
prior to the beginning of the fiscal year) ; and
(5) A summary of the Corporation' s general
liability insurance policy, earthquake and flood insurance
policy, if one or more has been issued, and liability coverage
policy for the Board, which includes statements, a summary,
and information required under California Civil Code Section
5300 as same may be amended from time to time. Currently,
such items of disclosure include the following: (1) the name
50018.154-24590.FCM 051816 -4 2-
of the insurer; (2) the type of insurance; (3) the policy
limits of the insurance; and (4) the insurance deductibles .
The Corporation shall, as soon as reasonably prac-
tical, notify its Members by first-class mail if any of the
policies described in Subparagraph (i) above have lapsed, been
canceled, and are not immediately renewed, restored or
replaced, or if there is a significant change, such as a
reduction in coverage or limits, or an increase in the
deductible for any of those policies. If the Corporation
receives any notice of nonrenewal of a policy described in the
subparagraph above, the Corporation shall immediately notify
its Members if replacement coverage will not be in effect by
the date the existing coverage will lapse. To the extent the
information noted above is described within the respective
insurance policies, the Corporation may distribute such
information to the Members and be in compliance with the
disclosure requirements of the referenced Civil Code Section.
Notification regarding cancellation or policy renewals must
comply with Civil Code Section 5810, as same may be amended
from time to time. Currently, the summary distributed pursuant
to Subparagraph (i) shall contain, in at least 10-point
boldface type, the following statement: "This summary of the
association' s policies of insurance provides only certain
information, as required by Section 5300 of the California
Civil Code, and should not be considered a substitute for the
complete policy terms and conditions contained in the actual
policies of insurance. Any association member may, upon
request and provision of reasonable notice, review the
association' s insurance policies and, upon request and payment
of reasonable duplication charges, obtain copies of those
policies . Although the association maintains the policies of
insurance specified in this summary, the association' s
policies of insurance may not cover your property, including
personal property or real property improvements to or around
your dwelling, or personal injuries or other losses that occur
within or around your dwelling. Even if a loss is covered,
you may nevertheless be responsible for paying all or a
portion of any deductible that applies . Association members
should consult with their individual insurance broker or agent
for appropriate additional coverage. "
(j ) The Board shall review on a quarterly basis, the
following:
i) A current reconciliation of the Corpora-
tion' s operating accounts;
ii) A current reconciliation of amounts
collected as reserves;
iii) The current year' s actual amounts col-
lected as reserves and expenses compared to the current
year' s budget;
50018.154-24590.FCM 051816 -4 3-
iv) An income and expense statement for the
Corporation' s operating and reserve accounts; and
v) The most current account statements
prepared by the financial institutions where the
Corporation maintains its operating and reserve
accounts.
Withdrawal of funds from the Corporation' s reserve account
shall require the signature of either: (i) two (2) members of
the Board; or (ii) one (1) member of the Board and an officer
of the Corporation who is not also a member of its Board. As
used in this Section, "reserve account" means moneys that the
Board has identified from its annual budget for use to defray
the future repair or replacement of, or additions to, those
major components of the Corporation Property which the Corp-
oration is obligated to repair or replace on a periodic basis,
rather than on a regular annual basis. The Board shall not
use any funds collected and budgeted as "reserve" moneys for
any costs and/or expenses that are not related to repair
and/or replacement costs for those elements of the Corporation
Property that must be repaired and/or replaced on a periodic
basis. Notwithstanding the foregoing, temporary transfer of
funds may occur in compliance with Civil Code Section 5515, as
may be amended from time to time. In the event reserve funds
are temporarily transferred to pay for dispute resolution
proceedings, the Board shall comply with the disclosure and
notification requirements of Civil Code Section 5520, as may
be amended from time to time.
(k) At least once every three (3) years, cause a study
of the reserve account requirements of the Project to be conducted
if the current replacement value of the major components which the
Corporation is obligated to repair, replace, restore or maintain is
equal to or greater than one-half (1/2) of the gross Corporation
budget for any fiscal year of the Corporation. In connection with
such study, the Board shall cause to be conducted, if required by
law, a visual inspection of the accessible areas of the major
components of the Corporation Property which the Corporation is
obligated to repair, replace, restore, or maintain. The Board shall
consider and implement the necessary adjustments to the Board' s
analysis of the reserve account requirements as a result of such
review. The reserve study shall consider and include, at a minimum,
the requirements set forth in Sections 5550-5560 of the California
Civil Code, as the same may be amended, from time to time;
(1) Assume and pay out of the Assessments provided for
hereinbelow all costs and expenses incurred by the Corporation in
connection with the performance and execution of all of the afore-
said powers and duties, and any other powers and duties the
Corporation may assume as provided for in Section 4 hereinbelow;
(m) Formulate, adopt and enforce such Rules and
Regulations as it may deem proper for the operation of the
Corporation Property and as necessary to establish election
procedures in compliance with California Civil Code Sections 5100-
50018.154-24590.FCM 051816 -4 4-
5130, as more particularly described below. Notice of adoption of
any such Rules and Regulations and of any change, amendment or
repeal thereof, shall be given in writing to each Member and shall
be on file in the principal office of the Corporation. In the event
of any conflict between such Rules and Regulations and this
Declaration, this Declaration shall prevail;
(n) Enforce and abide by all applicable provisions of
this Declaration, the Articles, By-Laws, the Limited Warranty, all
Rules and Regulations of the Corporation, Architectural Review
Committee rules, the Water Quality Management Plans, and all other
documents pertaining to the ownership, use, management and control
of the Project;
(o) Give notices in writing to FHLMC, FNMA, GNMA and
VA/FHA, and other lenders and investors participating in the
financing of the sale of Condominiums in the Project, as required
herein;
(p) Within ten (10) days of receipt of a written
request from an Owner, provide said Owner with a copy of this
Declaration and the By-Laws and Articles for the Corporation,
together with the pro forma operating budget, an insurance policy
summary, any change in the Corporation' s current Regular and Special
Assessments and fees which have been approved by the Board, but are
not yet implemented, a true statement in writing as to the amount
of any delinquent Assessments, penalties, attorneys' fees and other
charges therein as provided by this Declaration or other management
documents of the Board as of the date of such request. The Board may
impose a fee for providing the foregoing, but in no event shall the
fee exceed the reasonable cost to prepare and reproduce the
requested documents . In addition, the Board shall make available
during normal working business hours or upon request under reason-
able circumstances to any prospective purchaser of a Condominium,
any Owner of a Condominium, any first Mortgagee and the holder (s) ,
insurer(s) and guarantor(s) of the first Mortgage on any
Condominium, current copies of this Declaration, the Articles, the
By-Laws, the Rules and Regulations, the membership register,
including mailing addresses and telephone numbers, and all other
books, records and financial statements of the Corporation, as
required by law;
(q) Appoint the Members to the various Committees
formed by the Board (e.g. , the Architectural Review Committee, etc. )
as more particularly set forth herein or in the By-Laws;
(r) Periodically review and revise the maintenance
guidelines, if any, as the Board may deem reasonable and prudent to
adjust to the changing needs of the Project and to comply with any
and all maintenance guidelines provided by the Declarant or recorded
by Declarant against the Project;
(s) Cause a summary of the provisions of Section 5925-
5965 of the California Civil Code, as same may be amended from time
to time, regarding alternative dispute resolution prefiling
requirements and which specifically reference Section 5925-5965 of
50018.154-24590.FCM 051816 -4 5-
the Civil Code, to be prepared and annually distributed to each
Member of the Corporation as specified in Civil Code Section 5310 .
The summary shall be provided either at the time the pro forma
operating budget is distributed herein or in the manner specified
in Section 5016 of the California Corporations Code, as same may be
amended from time to time. The summary shall include a description
of the Corporation' s internal dispute resolution process, as
required by Section 5920 of the Civil Code;
(t) Elect the officers of the Corporation and fill any
vacancies on the Board;
(u) Except as otherwise allowed under Section 6000 of
the California Civil Code, as same may be amended from time to time,
obtain approval from a majority of Members prior to incurring
dispute resolution expenses, including without limitation attorneys'
fees, where the Corporation initiates dispute resolution proceedings
or is joined as a plaintiff in dispute resolution proceedings. Such
approval shall not be necessary if the legal proceedings are
initiated to (i) enforce use restrictions contained herein, (ii)
enforce architectural control provisions contained herein; or (iii)
collect any unpaid assessments levied pursuant to this Declaration;
(v) Cause a notice regarding "Assessments And
Foreclosure" to be prepared and annually distributed to each Member
of the Corporation in accordance with California Civil Code Section
5730, as the same may be amended from time to time. Except as
otherwise provided in California Civil Code Section 5730, as the
same may be amended from time to time, the notice shall be printed
in 12-point type and shall be distributed during the sixty (60) day
period immediately preceding the beginning of the Corporation' s
fiscal year;
(w) Without any limitation of the foregoing duties, (i)
operate, maintain, and inspect the Corporation Property and its
various components in conformance with any Maintenance Guidelines
and any Maintenance Manual, and (ii) review any Maintenance Manual
for necessary or appropriate revisions as deemed necessary by the
Board (Declarant recommends at least an annual review) ;
(x) Adopt and provide a fair, reasonable and
expeditious procedure for resolving disputes between the Corporation
and Members that complies with applicable law (e.g. , Civil Code
Section 5900 et sea. ) , which, if the Board so decides, may be the
procedure set forth in Civil Code Section 5915; and
(y) As required by applicable law [e.g. , California
Civil Code Section 4765, as the same may be amended from time to
time, or any successor statute] , cause a notice of any requirements
for Corporation approval of physical changes to Condominiums or
Common Property to be prepared and annually distributed to Members.
The notice shall describe the types of changes that require
Corporation approval and shall include a copy of the procedure used
to review and approve or disapprove a proposed change.
50018.154-24590.FCM 051816 -4 6-
Section 4 . Discretionary Powers . The Board, at its option,
may assume, perform and execute the following powers and duties for and
on behalf of the Corporation:
(a) Retain the services of such personnel, in addition
to the professional property management company, as the Corporation
deems necessary and proper to assist in the operation of the
Corporation and/or management of the Corporation Property, re-
gardless of whether such other personnel are employed directly by
the Corporation or otherwise;
(b) Remove or replace any Improvement that extends into
the Corporation Property under authority of an easement when access
to a utility line underneath such Improvement is requested by any
utility company; provided, however, that the cost shall be assessed
against the Owner of the Condominium involved as a Compliance
Assessment if said Owner caused the Improvement to be so placed in
the Corporation Property without legal right to do so;
(c) Incur any liability or pay any costs or expenses
for a single Condominium or Owner thereof; provided, however, that
in the event the Corporation does incur any such liability or pay
any such costs or expenses, the amount thereof shall be specially
assessed against the Owner of such . Condominium as a Compliance
Assessment; provided further, however, that nothing herein shall
permit the Corporation to assess the Owners for any new Improvements
to the Corporation Property except as otherwise provided in this
Declaration;
(d) Subject to the limitations set forth in this
Article, contract for any other material, furniture, labor,
services, maintenance, repairs, structural alterations or insurance,
or pay any taxes or Assessments which, in the opinion of the Board,
shall be necessary or proper for the operation of the Common
Property for the benefit of the Owners or for the enforcement of
this Declaration; and
(e) Enter into a maintenance or subsidy agreement with
Declarant, at Declarant' s sole discretion, to temporarily reduce the
financial obligations of the Owners for Assessment .
Section 5. Notification by Corporation of Defects. The
Board agrees that in the event of any alleged defect in any improved
Corporation Property for which the Corporation believes the Declarant may
be responsible, the Board will provide Declarant with written notice of
such defect in accordance with Civil Code Section 6000, as the same may
be amended. Declarant shall have a reasonable opportunity to inspect such
alleged defect, and if Declarant agrees with the Board (or otherwise
elects to perform the work) to repair, replace or otherwise cure any
defect in workmanship and/or material . The Corporation acknowledges and
agrees that Declarant (or its authorized agents) shall be entitled at its
sole discretion to determine the material and methods to be used in
effecting such repair, replacement or cure.
50018.154-24590.FCM 051816 -4 7-
Section 6. Awards Rendered in Construction Defects
Disputes . Any recovery by the Corporation or any Owner for any damage,
to or defect in, the Corporation Property shall be utilized solely for
the purpose of correcting such damage or defect.
Section 7. Special Meeting of the Corporation for
Construction Defect Disputes . In the event the Board decides to commence
binding arbitration proceedings under the Limited Warranty or decides to
commence any other legal proceedings against any of the Declarant Parties
(as defined in Section 16, below, of this Declaration) relating to
construction defect Disputes, the Secretary shall call a special meeting
of the Corporation. In addition to the information required by Section
6000 to be specified in the notice of such meeting, the notice shall also
specify the following: (a) the estimated costs to repair the defects; (b)
how the necessary repairs will be funded; (c) the name of the attorney
whom the Corporation is contemplating retaining and an estimate of the
attorney' s fees, consultant' s fees and any other costs to be incurred to
prosecute such proceedings; (d) how such fees and costs will be funded;
(e) each Member' s duty to disclose to prospective purchasers the alleged
defects; and (f) the potential impact the proceedings may have on the
marketability and availability of financing for Condominiums in the
Project. Such notice shall be sent to all Members of the Corporation.
The decision of the Board to commence any other legal proceedings against
any of the Declarant Parties relating to a construction defect Dispute
must be approved by not less than fifty-one percent (510) of the voting
power of the Corporation residing in Members other than the Declarant.
Section 8 . Delegations of Duties. In the event that the
Corporation shall delegate any or all of its duties, powers or functions
to any person, corporation or firm to act as manager, neither the
Corporation nor the members of its Board shall be liable for any omission
or improper exercise by the manager of any such duty, power or function
so delegated.
Section 9. Right of Entry for Emergency. The Board, any
person authorized by the Board or any Owner may enter any Condominium in
the event of any emergency involving illness or potential danger to life
or property. Such entry shall be made with as little inconvenience to the
Owner as is practicable, and in the event that any damage shall be
proximately caused by or result from said entry, the Corporation shall
repair the same at its expense.
Section 10 . Right of Entry for Repairs . The Board, or any
person authorized by the Board, shall have the right to enter, upon
reasonable notice, any Condominium to effect necessary repairs which the
Owner has failed to perform or which are necessary in connection with the
repairs to the Corporation Property or an adjoining Condominium. Such
entry shall be made with as little inconvenience to the Owner as is
practicable, and in the event that any damage shall be proximately caused
by or result from said entry, the Corporation shall repair the same at
its expense.
Section 11. Limitations on Board Action. The Board shall be
prohibited from taking any of the following actions, except with the vote
or written assent of a majority of the Members, other than the Declarant,
constituting a quorum consisting of more than fifty percent of the voting
50018.154-24590.FCM 051816 -4 8
power of the Corporation residing in the 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
Corporation Property or the Corporation for a term longer than one
(1) year, with the following exceptions :
(1) A management contract, the terms of which
have been approved by the VA/FHA and are consistent with
provisions herein;
(2) 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;
(3) Prepaid casualty and/or liability insurance
policies of not to exceed three (3) years duration, provided
that the policy permits for short-rate cancellation by the
insured;
(4) Agreements for cable television services and
equipment or satellite dish television services and equipment
of not to exceed five (5) years duration, provided that the
lessor under the agreement is not an entity in which Declarant
has a direct or indirect interest of ten percent (100) or
more; and
(5) Agreements for sale or lease of burglar alarm
and fire alarm equipment installation and services of not to
exceed five (5) years duration, provided that the supplier or
suppliers are not entities in which the Declarant has a direct
or indirect ownership interest of ten percent (100) or more.
(b) Incurring aggregate expenditures for capital
improvements to the Corporation Property in any fiscal _year in
excess of five percent (50) of the budgeted gross expenses of the
Corporation for that fiscal year;
(c) Selling during any fiscal year property of the
Corporation having an aggregate fair market value greater than five
percent (50) of the budgeted gross expenses of the Corporation for
that fiscal year;
(d) Paying compensation to Directors or to officers of
the Corporation for services performed in the conduct of the
Corporation' s business; provided, however, that the Board may cause
a Director or officer to be reimbursed for expenses incurred in
carrying on the business of the Corporation;
(e) Filling a vacancy on the Board created by the
removal of a Director;
50018.154-24590.FCM 051816 -4 9
(f) Except as otherwise allowed under Section 6000 of
the California Civil Code, as same maybe amended from time to time,
incurring dispute resolution expenses, including without limitation
attorneys' fees, where the Corporation initiates dispute resolution
proceedings or is joined as a plaintiff in dispute resolution
proceedings. Such approval shall not be necessary if the legal
proceedings are initiated to (i) enforce the use restrictions
contained herein, (ii) enforce the architectural control provisions
contained herein; or (iii) collect any unpaid assessments levied
pursuant to this Declaration; and
(g) Amending or limiting the Corporation' s duties and
obligations (and benefits) with respect to the Limited Warranty.
Section 12 . Licenses, Easements and Rights-of-Way. The
Board, for and on behalf of the Corporation, is authorized and empowered
to grant such licenses, easements and rights-of-way for sewer lines,
water lines, underground conduits, storm drains, roadways, and other
public utility purposes over those portions of the Corporation Property
upon which no building or other structure has been erected as may be
necessary and appropriate for the orderly maintenance, preservation and
enjoyment of the Corporation Property or for the preservation of the
health, safety, convenience and welfare of the Owners. Such licenses,
" easements and rights-of-way may be granted at any time prior to twenty-
one (21) years after the death of the individuals who have signed this
Declaration and their issue who are in being as of the date hereof, and
the right to grant such licenses, easements and rights-of-way is hereby
expressly reserved.
Section 13 . New Improvements. Except as otherwise provided
in this Declaration, the Corporation may construct new Improvements or
additions to the Common Property, or demolish existing Improvements,
provided that in the case of any Improvement, addition or demolition
involving a total expenditure in excess of five percent (50) of the
budgeted gross expenses of the Corporation for that fiscal year, the
written consent or vote of a majority of the Owners (other than the
Declarant) in the Project as to the maximum total cost therefor shall
first be obtained, and provided that no Condominium shall be altered or
damaged by any such demolition or construction without the consent of the
Owner thereof. The Board shall levy a Special Assessment against all
Owners in the Project for the cost of such work.
Section 14 . Corporation Rules and Regulations. The Board
shall also have the power to adopt, amend and repeal Rules and
Regulations, as it deems reasonable, which may include the establishment
of a system of fines and penalties enforceable as Compliance Assessments.
The Rules and Regulations shall govern such matters in furtherance of the
purposes of the Corporation, including, without limitation, the use of
the Common Property (including, without limitation, the Exclusive Use
Corporation Property (e.g. , air conditioning pads, patios, yard, deck,
porch, solar panel, etc. - what type, if any, of plants or furniture is
acceptable) , signs, parking restrictions and enforcement, trash collec-
tion, minimum standards for maintenance of Condominiums consistent with
such standards as may be set forth in this Declaration or adopted by the
Architectural Review Committee, election procedures in compliance with
California Civil Code Sections 5100-5130, and any other matter which is
50018.154-24590.FCM 051816 -5 0-
within the jurisdiction of the Corporation; provided, however, that the
Rules and Regulations may not discriminate among Owners and shall not be
inconsistent with this Declaration, the Articles or By-Laws. A copy of
the Rules and Regulations as they may, from time to time, be adopted,
amended or repealed, or a notice setting forth the adoption, amendment
or repeal of specific portions of the Rules and Regulations, shall be
delivered to each Owner and may be placed on file in the principal office
of the Corporation. The Rules and Regulations shall have the same force
and effect as if they were set forth in and were part of this Decla-
ration, and shall be binding on the Owners and their successors in
interest, whether or not actually received thereby. The Rules and Regula-
tions, as adopted, amended or repealed, shall be available at the
principal office of the Corporation to each Owner upon request. In the
event of any conflict between any such Rules and Regulations and any
other provisions of this Declaration, or the Articles or By-Laws, the
provisions of the Rules and Regulations shall be deemed to be superseded.
Section 15 . Nonliability and Indemnification.
(a) General Limitation. Except as specifically
provided in this Declaration, or as required by law, no right, power
or responsibility conferred on the Board or the Architectural Review
Committee by this Declaration, the Articles or the By-Laws, shall
be construed as a duty or obligation charged upon the Board, the
Architectural Review Committee, any member of the Board or the
Architectural Review Committee, or any other officer, employee or
agent of the Corporation. No such person shall be liable to any
party (other than the Corporation or a party claiming in the name
of the Corporation) for injuries or damage resulting from such
person' s acts or omissions within what such person reasonably
believed to be the scope of his Corporation duties ( "Official
Acts") , except to the extent that such injuries or damage result
from such person' s willful or malicious misconduct. No such person
shall be liable to the Corporation (or to any party claiming in the
name of the Corporation) for injuries or damage resulting from such
person' s Official Acts, except to the extent that such injuries or
damage result from such person' s negligence or willful or malicious
misconduct.
(b) Personal Liability Limitation. No person who
suffers injury, including, but not limited to, bodily injury
(including, without limitation, emotional distress or wrongful
death) or property damage or loss as a result of the tortious act
or omission of a volunteer Board member or volunteer Corporation
officer shall recover damages from such Board member or officer if
all the following conditions are satisfied:
(1) At the time the act or omission occurred, the
Board member or officer resided in the Project as either a
tenant or an Owner of two (2) or fewer Condominiums;
(2) The act or omission was performed within the
scope of the Board member' s or officer' s Corporation duties,
which shall include, but shall not be limited to, whether to
conduct an investigation of the Corporation Property for
latent deficiencies prior to the expiration of the applicable
50018.154-24590.FCM 051816 -5 1-
statute of limitations and whether to commence a civil action
against the Declarant for defects in design or construction;
(3) The act or omission was performed in good
faith;
(4) The act or omission was not willful, wanton
or grossly negligent; and
(5) The Corporation maintained and had in effect
at the time the act or omission occurred, and at the time a
claim was made, one (1) or more policies of insurance which
included coverage for general liability for the Corporation
and individual liability of officers and Directors of the
Corporation for negligent acts or omissions in such capacity,
and both types of coverage were in the amount of at least Five
Hundred Thousand Dollars ($500, 000 . 00) .
(c) Indemnification. The Corporation shall pay all
expenses incurred by, and satisfy any judgment or fine levied
against, any person as a result of any action or threatened action
against such person to impose liability on such person for his
official acts, provided that:
(1) The Board determines that such person acted
in good faith and in the manner such person reasonably
believed to be in the best interests of the Corporation; and
(2) In the case of an action or threatened action
by or in the right of the Corporation, the Board determines
that such person acted with such care, including reasonable
inquiry, as an ordinary prudent person in a like position
would use under similar circumstances.
Any determination of the Board required under this
Section must be approved by a majority vote of a quorum consisting
of Directors who are not parties to the action or threatened action
giving rise to the indemnification. If the Board fails or refuses
to make any such determination, such determination may be made by
the vote or written consent of a majority of a quorum of the Members
of the Corporation, provided that the person to be indemnified shall
not be entitled to vote. The entitlement to indemnification hereun-
der shall inure to the benefit of the estate, executor,
administrator, heirs or devisees of any person entitled to such
indemnification.
Section 16. Arbitration of Disputes . Unless otherwise
required by the Limited Warranty for "Disputes" (defined below) covered
thereunder, any and all claims, controversies, breaches or disputes (each
a "Dispute") between or among the Declarant, or any director, officer,
partner, attorney, member, employee or agent of Declarant, or any
contractor, subcontractor, design professional, engineer or supplier who
provided labor, services or materials to the Project (collectively, the
"Declarant Parties" ) , the Corporation, and/or any Owner, relating to or
arising out of the Project, this Declaration or any other agreements
between the Declarant Parties, the Corporation, and/or an Owner (except
50018.154-24590.FCM 051816 -5 2-
for Disputes subject to arbitration pursuant to the express Limited
Warranty offered to an original Owner by Declarant) , whether such Dispute
is based on contract, tort, or statute, including, without limitation,
any Dispute over (1) breach of contract, (2) negligent or intentional
misrepresentation or fraud, (3) nondisclosure, (4) breach of any alleged
duty of good faith and fair dealing, (5) allegations of latent or patent
construction defects, or (6) any other matter arising from or related to
the interpretation of any term or provision of this Declaration, or any
defense going to the validity of this Declaration, or any provision of
this Declaration, shall be resolved amicably and without the necessity
of time consuming and costly litigation through arbitration pursuant to
the Federal Arbitration Act and subject to the procedures set forth in
this Section 16 . Any Dispute concerning the interpretation or the
enforceability of this Section 16, including, without limitation, its
revocability or voidability for any cause, any challenges to the
enforcement or the validity of this Declaration, or this Section 16 , or
the scope of arbitrable issues under this Section 16, and any defense
relating to the enforcement of this Section 16, including, without
limitation, waiver, estoppel, or laches, or any dispute concerning any
arbitration award made pursuant to this Section 16, shall'be decided by
an arbitrator in accordance with this Section 16 and not by a court of
law. The nonadversarial procedure for resolution of Disputes shall be
as set forth in paragraphs (a) and (b) below or as otherwise determined
by Declarant.
(a) Notice. Any person with a claim regarding a Dispute
shall notify the Declarant in writing of the claim, which writing (i .e. ,
by personal or mail service as authorized by Code of Civil Procedure
Sections 415 . 10, 415 .20, 415 .21, 415 . 30 or 415 .40 to the party to whom
the Dispute is directed) shall describe the nature of the claim and any
proposed remedy (the "Claim Notice") .
(b) Right to Inspect and Right to Corrective Action.
Commencing on the date the Claim Notice is delivered and continuing until
the Dispute is resolved, the Declarant and its representatives shall have
the right to (i) meet with the party alleging the Dispute at a reasonable
time and place to discuss the Dispute, (ii) enter the Project to inspect
any areas that are subject to the Dispute, and (iii) conduct inspections
and testing (including destructive or invasive testing) in a manner
deemed appropriate by the Declarant. Within a reasonable period after
receipt of the Claim Notice, which period shall not exceed sixty (60)
days, the Declarant and the claimant shall meet at a mutually acceptable
place within or near the Project to discuss the Dispute. At such meeting
or at such other mutually agreeable time, the Declarant and the Declaran-
t' s representatives, as noted above, shall have full access to the
property that is subject to the Dispute claim and shall have the right
to conduct inspections, testing and/or destructive or invasive testing
of the same in a manner deemed appropriate by Declarant, which rights
shall continue until such time as the Dispute is resolved as set forth
herein. The parties to the Dispute shall negotiate in good faith in an
attempt to resolve the claim. If the Declarant elects to take any
corrective action, Declarant and Declarant's representatives and agents
shall be provided full access to the Project to take and complete
corrective action. Nothing set forth in this Section 16 imposes any
obligation on Declarant to inspect, repair or replace any items or
alleged defects for which Declarant is not otherwise obligated under
50018.154-24590.FCM 051816 -5 3-
applicable State and federal law or the Limited Warranty in connection
with the sale of the Condominiums.
(c) Binding Arbitration. In the event that a Dispute is
raised and not resolved pursuant to the nonadversarial procedures set
forth above or, with respect to Disputes subject to the Limited Warranty,
the procedures set forth in the Limited Warranty, such Dispute shall be
submitted to binding Arbitration.
If the Dispute is not subject to the Limited Warranty, the
Dispute shall be submitted to binding arbitration by and pursuant to the
rules of a neutral, independent arbitration service agreed upon by the
parties to the arbitration. If the parties to the Dispute are unable to
agree upon a neutral, independent arbitration service, then any party
may, pursuant to the provisions of the Federal Arbitration Act (9 U.S.C.
§1 et seq. ) , apply to a court of competent jurisdiction to designate an
arbitration service, which designation shall be binding on the parties .
If the Dispute is subject to the Limited Warranty, the Dispute
shall be submitted to binding arbitration by and pursuant to the rules
of (a) one of the arbitration services designated in the Limited Warranty
that is selected by the Owner, or (b) such other neutral, independent
arbitration service mutually acceptable to the parties. If the Owner or
Corporation (as applicable) and Declarant are unable to agree on an
arbitration service, then any party may, pursuant to the provisions of
the Federal Arbitration Act (9 U.S.C. §1 et sue. ) , apply to a court of
competent jurisdiction to designate an arbitration service, which
designation shall be binding on the parties .
The rules and procedures of the designated arbitration service
in effect at the time the request for arbitration is submitted shall be
followed; otherwise, the parties agree to the provisions set forth below.
(d) General Arbitration Provisions .
(i) Declarant, each Owner, by acceptance of a deed to
a Condominium, and the Corporation, by acceptance of a deed to the
Corporation Property, acknowledge that this Declaration involves and
concerns interstate commerce and is governed by the provisions of
the Federal Arbitration Act (9 U.S.C. §1, et sue. ) now in effect and
as the same may from time to time be amended, to the exclusion of
any different or inconsistent state or local law, ordinance,
regulation, or judicial rule. Accordingly, any and all disputes
shall be arbitrated, which arbitration shall be mandatory and
binding pursuant to the Federal Arbitration Act.
(ii) This Section 16 shall inure to the benefit of, and
be enforceable by, Declarant' s subcontractors, agents, vendors,
suppliers, design professionals, warranty administrator, insurers
and any other persons whom any Owner or the Corporation contends is
responsible for any alleged defect in or to the Project or such
Owner' s Condominium or any improvement or appurtenance thereto or
who is entitled to enforce the Limited Warranty.
(iii) Each party shall bear its own attorneys' fees and
costs (including expert costs) for the arbitration.
50018.154-24590.FCM 05J816 -54-
(iv) Except as otherwise provided in the Limited
Warranty with respect to Disputes subject thereto, the parties shall
be entitled to conduct all discovery as otherwise provided in the
California Code of Civil Procedure, and the arbitrator shall oversee
discovery and may enforce all discovery orders in the same manner
as any trial court judge, with rights to regulate discovery and to
issue and/or enforce subpoenas, protective orders or other limita-
tions on discovery available under California law. In the context
of construction defect disputes, all parties shall be entitled to
reasonable site inspections, visual inspections, destructive
testing, and other discovery mechanisms commonly employed in such
disputes (e.g. , depositions) .
(v) The arbitrator shall decide all issues of fact and
law, and the decision of the arbitrator shall be final and binding.
Declarant, the Corporation (by acceptance of a deed to the
Corporation Property) , and each Owner (by acceptance of a deed to
a Condominium) acknowledge that an application to confirm, vacate,
modify or correct an award rendered by the arbitrator shall be filed
in any court of competent jurisdiction in the county where the
Project is located.
(vi) The participation by any party in any judicial
proceeding concerning this Section 16 or any matter arbitrable
hereunder shall not be deemed a waiver of the right to enforce this
Section 16 notwithstanding any provision of law to the contrary, and
shall not be asserted or accepted as a reason to delay, to refuse
to participate in arbitration, or to refuse to enforce this Section
16 .
(vii) Except as otherwise provided by the Limited
Warranty for Disputes subject thereto, or as required by applicable
law, the fees and costs charged by the arbitration service and the
arbitrator shall be advanced by Declarant; provided, however, the
arbitrator shall have the authority to apportion such fees and costs
(or a portion thereof) to an Owner or Corporation (as the case may
be) if the arbitrator determines that the Owner' s or Corporation' s
initiation of the arbitration was frivolous, unreasonable, without
foundation, or in bad faith.
(viii) The arbitrator appointed to serve shall be a
neutral and impartial individual and shall be authorized to provide
all recognized remedies available in law or equity for any cause of
action that is the basis for arbitration.
(ix) The venue of the arbitration shall be in the County
unless the parties to the arbitration agree in writing to another
location.
(x) If any provision of this Section 16 shall be
determined to be unenforceable or to have been waived, the remaining
provisions shall be deemed to be severable therefrom and enforceable
according to their terms.
(xi) Declarant, the Corporation, and each Owner are
giving up their respective judicial rights to discovery and appeal,
50018.154-24590.FCM 051816
-55-
unless those rights are specifically included in this Section 16.
If Declarant, the Corporation or any Owner refuses to submit to
arbitration, such Owner, the Corporation or Declarant may be
compelled to arbitrate under the Federal Arbitration Act and the
California Arbitration Act, to the extent the California Arbitration
Act is consistent with the Federal Arbitration Act.
(xii) In the event the foregoing arbitration provision
or the arbitration provision in the Limited Warranty is held not to
apply or is held invalid, void or unenforceable in its entirety for
any reason, Declarant, each Owner, by acceptance of a deed to a
Condominium, and the Corporation, by acceptance of a deed to the
Corporation Property, agree that all Disputes shall be resolved in
a lawsuit before a judge in a court of competent jurisdiction;
provided that such lawsuit must be resolved by general judicial
reference pursuant to California Code of Civil Procedure Sections
638 and 641 through 645, or any successor statutes thereto, and as
modified by this paragraph. Declarant, each Owner (by acceptance of
a deed to a Condominium) , and the Corporation (by acceptance of a
deed to the Corporation Property) acknowledge, understand and agree
that both the arbitration and judicial reference procedures noted
herein, as applicable, involve a process whereby resolution of the
Dispute does not involve a jury trial and specifically excludes a
jury from any involvement in resolution of the Dispute. The parties
to the Dispute shall cooperate in the judicial reference proceeding.
Declarant, each Owner (by acceptance of a deed to a Condominium) ,
and the Corporation (by acceptance of a deed to the Corporation
Property) grant the general referee authority to decide all issues,
whether of fact or law, including without limitation, the validity,
scope and enforceability of this dispute resolution provision, and
to report a statement of decision to the court . All parties shall
use the procedures adopted by any entity offering judicial reference
dispute resolution procedures as may be mutually acceptable to the
parties, provided that the following rules and procedures shall
apply in all cases unless the parties agree otherwise in writing:
(1) The general referee must be a neutral and impartial
retired judge with substantial experience in real estate
development and residential construction matters. Any
dispute regarding the selection of the referee shall be
resolved by the entity providing the reference services,
or, if no entity is involved, by the court with
appropriate jurisdiction.
(2) The general reference proceeding shall proceed
without a jury. Declarant, each Owner (by acceptance of
a deed to a Condominium) , and the Corporation (by
acceptance of a deed to the Corporation Property) each
hereby acknowledge, understand, and agree that this
procedure does not involve a jury trial and that this
procedure and the lack of a jury trial shall be binding
upon their respective successors and assigns and upon
all persons and entities asserting rights or claims or
otherwise acting on behalf of them or their successors
and assigns.
50018.154-24590.FCM 051816 -56-
(3) The parties shall be entitled to conduct all
discovery as otherwise provided in the California Code
of Civil Procedure, and the referee shall oversee dis-
covery and may enforce all discovery orders in the same
manner as any trial court judge, with rights to regulate
discovery and to issue and/or enforce subpoenas,
protective orders or other limitations on discovery
available under California law. In the context of
construction defect disputes, all parties shall be
entitled to reasonable site inspections, visual
inspections, destructive testing, and other discovery
mechanisms commonly employed in such disputes (e.g. ,
depositions) .
(4) The reference proceeding shall be conducted in
accordance with California law (including the rules of
evidence) , and in all regards the general referee shall
follow California law as applicable at the time of the
general reference proceeding. The general referee may
issue any remedy or relief which the courts of the State
of California could issue if presented the same circum-
stances, and the general referee shall follow and
otherwise employ the standards for issuing such relief
as defined by California law. The general referee may
require one or more pre-hearing conferences. A
stenographic record of the trial shall be made, provided
that the record shall remain confidential except as may
be necessary for post-hearing motions and any appeals.
The general referee' s statement of decision shall
contain findings of fact and conclusions of law to the
extent applicable. The general referee shall have the
authority to rule on all post-hearing motions in the
same manner as a trial judge. The statement of decision
of the general referee upon all of the issues considered
by the general referee shall be binding upon the
parties, and upon filing the statement of decision with
the clerk of any court of the State of California having
jurisdiction thereof, or with the judge if there is no
clerk, judgment may be entered thereon. The judgment
and decision of the general referee shall be appealable
in the same manner and subject to the same rules as if
rendered by the court.
(5) Any dispute involving third parties (i .e. , a person
or entity other than Declarant, or Owner or the
Corporation) shall be included in the general reference
procedure prescribed herein to the extent permitted by
law. All parties shall cooperate in good faith to
ensure that all necessary and appropriate parties are
included in the judicial reference proceeding.
(6) The exclusive venue for all general reference
proceedings shall be in the County where the Project is
located;
50018.154-24590.FCM 051816 -5
i
(7) Except where attorneys' fees are awarded as an
element of sanctions, the parties shall bear their own
attorneys' fees in any proceeding conducted under this
paragraph. Declarant shall initially advance all fees
and costs necessary to initiate the general reference
proceeding (including the fees of the general referee) ;
however, the general referee may, in his or her
discretion, reallocate such fees and costs among the
parties as the interests of justice dictate. The
general referee may award litigation costs to the
prevailing party. This provision does not modify any
provision of a contract between Declarant and any other
entity other than an Owner requiring indemnification or
establishing a different allocation of costs between
Declarant and such entity.
(8) If any provision of this paragraph shall be
determined to be unenforceable or to have been waived,
the remaining provisions shall be deemed to be severable
therefrom and enforceable according to their terms.
(e) Inspection Easements. The Declarant reserves
easements to enter any Condominium, including the interior of the
Residence and the Exclusive Use Corporation Property patio, yard,
deck, porch, solar panel, air conditioning pad, and other areas, and
the Corporation Property to inspect those areas and to conduct
destructive testing referred to in California Civil Code §6000 .
However, the Declarant shall notify the Owner of the Condominium (if
Declarant intends to enter the Condominium) or the Corporation (if
Declarant intends to enter the Corporation Property) of at least
three (3) alternative dates and times when such inspection can take
place (the earliest of which shall not be less than ten (10) days
after the notification is given) and the Declarant shall give the
Owner or Corporation (as applicable) the opportunity to specify
which date and time is acceptable to the Owner. Should the Owner
or Corporation (as applicable) not respond affirmatively with
respect to one of the dates and times within five (5) days, then the
Declarant may decide which of the dates and times the inspection and
testing shall take place and so notify the Owner or Corporation (as
applicable) . Alternatively, the Declarant may seek a judicial order
allowing such inspection and testing to take place. Declarant shall
be entitled to its reasonably incurred attorneys' fees and be deemed
the "prevailing party" should such a court order be sought and
obtained. Declarant shall be obligated to fully repair any damage
caused by any such destructive testing.
(f) Miscellaneous. Any and all communications by and
between the parties, whether written or oral, which are delivered
by the parties or their attorneys or other representatives in an
effort to settle the matter shall be considered communications
undertaken in the course of effecting a settlement or compromise,
as such shall not be admissible as an admission on the part of any
party or any representative or agent of that party to be utilized
for any such purpose in any action or proceeding.
50018.154-24590.FCM 051816 -58
Nothing herein shall be considered to reduce or
extend any applicable statute of limitation. If at any time an
action would be barred by a statute of limitation if not filed
within sixty (60) days, then such action may be filed
notwithstanding any other provision of this Section 16 .
(g) Manufactured Products Maintenance and Limited
Warranty Information. Each Owner, as to his respective Condominium,
and the Corporation, as to the Corporation Property, acknowledge
that Declarant has provided such Owner and the Corporation with
manufactured product maintenance, preventative maintenance and
limited warranty information pertaining to such Owner' s Condominium
and to the Corporation Property. Declarant reserves the right, by
written notice to each Owner and/or to the Corporation, to
supplement and/or amend such manufactured product maintenance,
preventative maintenance and limited warranty information from time
to time. Each Owner and the Corporation also acknowledge that by
law, such Owner and such Corporation is obligated to follow all
reasonable maintenance and preventative maintenance schedules and
obligations communicated in writing from Declarant as well as
commonly accepted maintenance practices. Each Owner and the
Corporation covenant to faithfully follow all such maintenance and
preventative maintenance schedules and obligations contained in all
such manufactured product maintenance, preventative maintenance and
limited warranty information (and each Owner shall require and cause
any tenant or lessee of such Owner' s Condominium to follow all such
schedules and obligations) .
(h) Indemnification. Each Owner of a Condominium in
the Project and the Corporation covenant to indemnify, defend and
hold Declarant harmless from any loss, costs or damages arising from
such Owner' s or such Corporation' s failure or refusal to perform its
respective obligations.
DECLARANT, THE CORPORATION AND EACH OWNER SHALL USE THE
PROCEDURES ESTABLISHED IN THIS SECTION 16 TO RESOLVE ALL DISPUTES AND
SHALL BE DEEMED TO WAIVE THEIR RIGHTS TO RESOLVE DISPUTES IN ANY OTHER
MANNER. PURSUANT TO THIS SECTION, DECLARANT (BY EXECUTION OF THIS
DECLARATION) , THE CORPORATION (BY ACCEPTANCE OF A DEED TO THE CORPORATION
PROPERTY) , AND EACH OWNER (BY ACCEPTANCE OF A DEED TO A CONDOMINIUM)
ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THEY SHALL HAVE NO RIGHT TO HAVE
ANY DISPUTE TRIED BEFORE A JURY.
THIS SECTION MAY NOT BE AMENDED WITHOUT DECLARANT'S PRIOR
WRITTEN CONSENT, WHICH CONSENT MAY BE WITHHELD IN DECLARANT'S SOLE AND
ABSOLUTE DISCRETION.
Section 17. Power of Attorney to Correct Errors . Upon
acceptance of a deed to a Condominium in the Project, each Owner, on
behalf of himself and his or her Mortgagees, hereby grants to the
Corporation a special power of attorney to correct any errors in a
Condominium Plan by executing on behalf of the affected Owners and
Mortgagees an amendment to the Condominium Plan and an instrument to
effect any conveyances or partial reconveyances necessary to correct such
errors. Unless broader provisions are provided in this Declaration, the
power hereby given to the Corporation is limited as follows:
50018.154-24590.FCM 051816 -5 9-
(a) The power may be exercised only to correct errors in a
Condominium Plan as evidenced by a written statement which describes
the error(s) and which is signed by the engineer who prepared the
Condominium Plan or by Declarant.
(b) The power may not be exercised on behalf of an Owner or
his or her Mortgagee if the Owner' s Condominium or Exclusive Use
Corporation Property, if applicable, would be reduced in size by
reason of the correction, unless written approval is obtained from
the affected Owner and Mortgagee.
The power hereby given is coupled with an interest and may not
be revoked by an Owner, but may be revoked by a Mortgagee. Any such
revocation by a Mortgagee shall be by means of its signed statement of
revocation recorded in the official records of the County.
Section 18 . Mortgage Interest and Other Encumbrances to Take
Subject to Power of Attorney. The acceptance or creation of any Mortgage
or other encumbrance, whether or not voluntary, created in good faith or
given for value, shall be deemed to be accepted or created subject to
each of the terms and conditions of the power of attorney described
hereinabove.
ARTICLE VII
ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of
Assessment. The Declarant, for each Condominium owned within the Project,
hereby covenants, and each Owner of any Condominium, by acceptance of a
deed therefor, whether or not it shall be so expressed in such deed, is
deemed to covenant and agree to pay to the Corporation: (a) Regular
Assessments; (b) Special Assessments; (c) Compliance Assessments; (d)
Special Benefit Assessments; and (e) such other assessments as the
Corporation may periodically establish. Except as otherwise provided by
law, the Regular, Special, and Special Benefit Assessments, together with
a reasonable late charge as may, from time to time, be established by the
Board in accordance with California law, interest, costs and reasonable
attorneys' fees for the collection thereof, shall be a charge against and
a continuing lien upon the Condominium against which each such Assessment
is levied, and shall also be the personal obligation of the Owner of such
property at the time when the Assessment came due. Each Compliance
Assessment levied against a Condominium, together with interest, costs,
reasonable late charges and reasonable attorneys' fees for the collection
thereof, shall be the personal obligation of the Owner of the property
at the time of the Assessment. The personal obligation for delinquent As-
sessments shall not pass to the successors in title unless expressly
assumed by them.
Section 2 . Purpose of Regular Assessments : Levy and Collec-
tion. The Regular Assessments levied by the Corporation shall be used
exclusively to promote the health, safety and welfare of the residents
in the Project and, except as otherwise provided in this Declaration, to
maintain, repair, replace and improve the Corporation Property, and any
other Improvements or areas which the Corporation is obligated to
50018.154-24590.FCM 051816 -6 0-
maintain, as provided herein. The Corporation, by and through its Board,
shall levy and collect Assessments from the Owner of each Condominium in
the Project in an amount sufficient to cover all of the Common Expenses
incurred by the Corporation in connection with the performance and exe-
cution of the powers and duties set forth in this Declaration, the By-
Laws and Articles . In connection therewith, the Corporation shall not
impose or collect Assessments, penalties or fees that exceed the amount
reasonably necessary for the purpose or purposes for which they were
levied. Nothing in this Declaration shall be construed in such a way as
to prohibit the use of Corporation Assessments or funds to abate any
annoyance or nuisance emanating from outside the boundaries of the
Project. Regular Assessments may be collected on a monthly installment
basis .
Section 3 . Regular Assessments - Basis. Except as
otherwise provided in this Declaration (e.g. , with respect to Special
Benefit Assessments, etc. ) , Regular Assessments payable to the
Corporation shall be assessed equally against all Owners of Condominiums.
Each Owner' s proportionate share of the Common Expenses for any fiscal
year of the Corporation shall be a fraction, the numerator of which shall
be the number of Condominiums owned by such Owner, and the denominator
of which shall be the total number of Condominiums in the Project which
are subject to Assessment. Until the first day of the fiscal year of the
Corporation immediately following the first close of an escrow for the
sale of a Condominium in the Project to an Owner, the Regular Assessment
shall be as set forth in the Project budget reviewed by CalBRE. Notwith-
standing the commencement for payment of Regular Assessments, or any
other provisions of this Declaration, Declarant and any other Owner of
a Condominium which does not include a structural Improvement for human
occupancy shall be exempt from the payment of that portion of any
Assessment (e.g. , Regular Assessment) which is for the purpose of
defraying operating expenses and reserves directly attributable to the
existence and/or use of such structural Improvements. This exemption
shall include, but shall not necessarily be limited to, that portion of
any Assessment attributable to roof replacement, exterior maintenance,
exterior walkway and carport lighting, refuse disposal, cable television
and domestic water, if any, supplied to Condominiums . This exemption
shall be in effect only until the earliest to occur of: (a) the
recordation of a notice of completion for the structural Improvements;
(b) the occupation or use of the Condominium; or (c) the completion of
all elements of the condominium building which the Corporation is
obligated to maintain, if any. Declarant and any Owner shall also 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 and use of any Corporation Property facilities that are not
complete at the time Assessments commence. This latter exemption shall
only be in effect as to a particular Corporation Property facility until
the earlier of : (a) the recordation of a notice of completion for such
Corporation Property facility; or (b) the placement into use of the
particular Corporation Property facility. Subject to the limitations of
California Civil Code Sections 5600-5650, as same may be amended, from
time to time, from and after the first day of the fiscal year immediately
following the conveyance of the first Condominium to an Owner, the
Regular Assessment may be increased subject to the following limitations:
50018.154-24590.FCM 051816 -61-
(a) Increases in Regular Assessments for any fiscal
year which are less than or equal to twenty percent (20%) above the
Regular Assessment for the immediately preceding fiscal year may be
approved by the Board, provided that the Board shall: (1) comply
with the provisions set forth in Sections 5300 and 5605 of the
California Civil Code, as same may be amended from time to time,
with respect to the distribution of the pro forma operating budget
of the Corporation for the forthcoming fiscal year; or (2) obtain
the approval of Members, constituting a quorum, casting a majority
of affirmative votes at a meeting or an election of the Corporation
conducted in accordance with California Civil Code Sections 4070,
5100 et seq. and, to the extent applicable, California Corporations
Code Sections 7510, et seq. , and Sections 7613, et seq. For
purposes of this entire Section 3, a quorum means more than fifty
percent (50%) of the Members of the Corporation;
(b) Notwithstanding more restrictive limitations placed
on the Board by this Declaration or other governing documents,
increases in Regular Assessments for any fiscal year which are more
than twenty percent (20%) above Regular Assessments for the
immediately preceding fiscal year may only be approved by the Board
after the Board obtains the approval of a majority of a quorum of
Members pursuant to Section 4070 of the California Civil Code;
(c) Pursuant to Civil Code Section 5610, the Assessment
increase limitation set forth in Subsection (b) above does not apply
to increases in Assessments related to emergency situations, which i
shall be deemed to include the following:
(1) Extraordinary expenses required by an order
by a court of competent jurisdiction;
(2) Extraordinary expenses for the maintenance or
repair of Corporation Property that is necessary to remedy any
dangerous condition in the Project that represents a threat of
damage or injury to any person or property; and
(3) Extraordinary expenses necessary to repair or
maintain the Corporation Property that could not have been
reasonably anticipated by the Board at the time the most
recent Corporation budget was prepared. Notwithstanding the
foregoing, in the event that the Board increases the Regular
Assessment above twenty percent (20%) pursuant to this
Subparagraph (3) , the Board shall distribute written notice
concerning said increase to all Owners and a copy of a
resolution adopted by the Board setting forth: (i) the
necessity of the extraordinary expenses; and (ii) the
justification why said expenses were not reasonably
foreseeable at the time the most recent budget was prepared.
For the purpose of calculating whether an increase to Regular
Assessments exceeds twenty percent (20%) , the term "Regular
Assessments" shall be deemed to include the amount assessed
against each Condominium by the Corporation as a Regular
Assessment, plus any amount paid by the Declarant as a subsidy
or pursuant to any subsidy or maintenance agreements, to the
50018.154-24590.FCM 051816 -6 2-
extent such subsidy payments offset an amount which would
otherwise be paid by Owners as Regular Assessments.
Section 4 . Special Assessments for Capital Improvements .
(a) In addition to the Regular Assessments authorized
above, and notwithstanding more restrictive limitations placed on
the Board by this Declaration or other governing documents, the
Board may not impose Special Assessments which in the aggregate
exceed five percent (5%) of the budgeted gross expenses of the Corp-
oration for that fiscal year without the approval of a majority of
a quorum of Members pursuant to Section 4070 of the California Civil
Code. The five percent (5%) limitation shall not apply to increases
in Special Assessments related to an emergency situation which shall
be deemed to include the following:
(1) Extraordinary expenses required by an order
by a court of competent jurisdiction;
(2) Extraordinary expenses for the maintenance or
repair of Corporation Property that is necessary to remedy any
dangerous condition in the Project that represents a threat of
damage or injury to any person or property; and
(3) Extraordinary expenses necessary to repair or
maintain the Corporation Property that could not have been
reasonably anticipated by the Board at the time the most
recent Corporation budget was prepared. Notwithstanding the
foregoing, in the event the Board levies any Special Assess-
ment that exceeds the five percent (5%) limitation pursuant to
this Subparagraph (3) , the Board shall distribute written
notice concerning said Special Assessment to all Owners and a
copy of a resolution adopted by the Board setting forth: (i)
the necessity of said Special Assessment; and (ii) the justi-
fication why said Special Assessment was not reasonably
foreseeable at the time the most recent budget was prepared.
Except as provided in Subsection (b) below, every Special
Assessment shall be levied upon the same basis as that pre-
scribed for the levying of Regular Assessments.
(b) A Special Assessment levied against Owners to raise
funds for the reconstruction or major repair of the Condominium
Units, if applicable, in the Project shall be levied on the basis
of the ratio of the square footage of the floor area of the
Condominium Unit to be assessed, to the square footage of the floor
area of all Condominium Units to be assessed.
Section 5 . Compliance Assessments. A Compliance Assessment
may not be characterized nor treated as an assessment which may become
a lien against the Owner' s Condominium enforceable by a sale in
accordance with the provisions of Sections 2924 et seq. of the Civil
Code; provided, however, at such time as the sale of Condominiums is not
governed by CalBRE, and only to the extent consistent with applicable
law, the foregoing shall not apply to any Compliance Assessment imposed
against an Owner consisting of a reasonable late payment penalty for
delinquent Assessments and/or charges to reimburse the Corporation for
50018.154-24590.FCM 051816 -6 3-
the loss of interest and for costs reasonably incurred (including
attorneys' fees) in its efforts to collect delinquent Assessments or
imposed for costs incurred by the Corporation in the repair of damage to
Common Property and facilities for which the Member or the Member' s
guests or tenants were responsible.
Section 6. Notice of Increase in Assessments . The Board
shall provide to the Owners, by first class mail to the address on file
with the Corporation, notice of any increase in Regular, Special and/or
Special Benefit Assessments not less than thirty (30) nor more than sixty
. (60) days prior to such increase becoming due.
Section 7 . Special Benefit Assessments. Special Benefit
Assessments shall mean and refer to a charge levied by the Corporation
against an Owner and his respective Condominium to cover the expenses
incurred by the Corporation in the operation, maintenance, repair, and/or
funding of reserves as to a portion of the Project designated herein or
by the Declarant or by the Board as a "Special Benefit Area" or which is
identified or referred to as an area or facility benefitting only the
Owners within such an Area. These expenses are only chargeable to Owners
in a Special Benefit Area, and may include, without limitation, the
following:
(a) Maintenance, management, operation, repair and
replacement of particular Improvements within the Special Benefit
Area;
(b) Utilities or services for the benefit of Owners
within the Special Benefit Area;
(c) Reasonable reserves, as deemed appropriate by the
Board, for repair and replacement of any Improvements maintained by
the Corporation within a Special Benefit Area; and
(d) Unpaid Special Benefit Assessments.
The Corporation shall distribute to Owners within any Special Benefit
Area a pro forma operating statement and budget for the upcoming fiscal
year which shall estimate the expenses attributable to the Special
Benefit Area, the allocation of such expenses among the affected Owners,
and shall set forth the amount and payment schedule of the Special
Benefit Assessments. Increases in Special Benefit Area Assessments for
any fiscal year which are less than or equal to twenty percent (200)
above the Special Benefit Area Assessment for the immediately preceding
fiscal year may be approved by the Board, provided that the Board shall
obtain the approval of Members affected by such Assessment, constituting
a quorum, casting a majority of affirmative votes . For purposes of this
Section, a quorum means more than fifty percent (50e) of the Members of
the Corporation affected by the Special Benefit Area Assessment. The
Assessment increase limitation set forth hereinabove does not apply to
increases in Special Benefit Area Assessments related to emergency situa-
tions that could not have been reasonably anticipated by the Board at the
time the most recent Corporation budget was prepared which determined the
amount of the Special Benefit Area Assessments .
50018.154-24590.FCM 051816 -6 4-
Section 8. Date of Commencement of Regular Assessments: Due
Dates . The Regular Assessments provided for herein shall commence in the
Project on the first day of the first month following the first close of
escrow for the sale of a Condominium in the Project, or on the first day
of the month following the first occupancy of a Condominium in the
Project pursuant to a rental or lease agreement with the Declarant, or
its authorized agent, whichever occurs first. The first Regular Assess-
ments shall be adjusted according to the number of months remaining in
the fiscal year, as set forth in the By-Laws. The Board shall fix the
amount of the Regular Assessment against each Condominium at least thirty
(30) days in advance of each Regular Assessment period. Written notice
of the Regular Assessment shall be sent to every Owner subject to the
provisions hereinabove. Notwithstanding any other provisions of this
Declaration and as set forth hereinabove, until the earlier to occur of:
(a) the recordation of a Notice of Completion of an Improvement to the
Corporation Property; or (b) the placement into use of the Corporation
Property, each Owner (including Declarant) may be declared by the Board
to be exempt from paying that portion of the Regular Assessment which is
directly attributable to expenses and reserves to be incurred by the
Corporation in the maintenance, operation and repair of such Corporation
Property.
Section 9 . Collection of Assessments . Except as otherwise
provided in this Declaration Regular and Special Assessments shall be
levied at a uniform rate for all Condominiums and may be collected on a
monthly basis. If any installment of a Regular Assessment is less than
the amount assessed and the payment does not specify the Corporation
funds or fund into which it should be deposited, the receipt thereof by
the Corporation from that Member shall be credited in order of priority,
first to the operating fund, until that portion of the Regular Assessment
has been satisfied, and second to the reserve fund. Compliance and
Special Benefit Assessments shall be due thirty (30) days after such
Assessment has been levied unless otherwise determined by the Board in
a manner consistent with Civil Code Sections 5600-5650, as may be amended
from time to time.
Section 10 . Certification of Payment. The Corporation shall,
upon demand and for a reasonable charge, furnish a certificate signed by
an officer or agent of the Corporation setting forth whether the
Assessments on a specified Condominium have been paid. If a certificate
states that Assessments have been paid, such certificate shall be
conclusive evidence of such payment.
Section 11. Delivery by Owner. Each Owner of a Condominium
shall, as soon as practicable prior to the transfer of title to the
Condominium or the execution of a real property sales contract, as
defined in California Civil Code, Section 2985, or as may be amended,
from time to time, give to the prospective purchaser a copy of this
Declaration and copies of the By-Laws and Articles of the Corporation,
and a true statement, in writing, from the Board as to the amount of the
Corporation' s current Regular and Special Assessments and fees, as well
as any delinquent Assessments and information relating to penalties,
attorneys' fees and other charges authorized by this Declaration on the
Condominium as of the date the statement is issued, and any change in the
Corporation' s current Assessments and fees which have been approved by
50018.154-24590.FCM 051816 -6 5-
the Board but have not become due and payable as of the date disclosure
is provided pursuant to this Section.
Section 12 . Delivery of Statement. Upon written request, the
Board shall, within ten (10) days of the mailing or delivery of such
request, respectively, provide the Owner of a Condominium with a copy of
this Declaration, and copies of the By-Laws and Articles of the
Corporation, together with the pro forma budget, an insurance policy
summary, a true statement in writing as to the amount of any delinquent
Assessments, penalties, attorneys' fees and other charges authorized by
this Declaration on the Condominium as of the date of the request, the
most recent financial statement, the Corporation' s current Regular and
Special Assessments, and any change in the Corporation' s current Assess-
ments and fees which have been approved by the Board but have not become
due and payable as of the date disclosure is provided pursuant to this
Section. The Board may impose a fee for providing such documents and
statements, but in no event shall the fee exceed the reasonable cost to
prepare and reproduce the requested documents.
Section 13 . Delivery by Declarant. In accordance with
applicable legal requirements, within ninety (90) days following the
first close of escrow for the sale of a Condominium in the Project, or
as soon as reasonably obtainable, the Declarant shall provide the
Corporation with copies of the (1) recorded tract map for the Project;
(2) recorded Condominium Plan for the Project and all amendments thereto;
(3) Corporation Property grant and/or easement deeds; (4) this Declara-
tion; (5) filed Articles of Incorporation and all amendments thereto; (6)
the Corporation' s By-Laws and all amendments thereto; (7) Rules and
Regulations and/or Architectural Guidelines adopted by the Board (if
any) ; (8) the plans approved by the City for the construction or
improvement of facilities that the Corporation is obligated to maintain
or repair (provided, however, that the plans need not be as-built plans
and may bear appropriate restrictions on their commercial exploitation
or use and may contain appropriate disclaimers regarding their accuracy) ;
(9) notice of completion certificates for Corporation Property, if any;
(10) any bond or other security device in which the Corporation is named
as a beneficiary, if any; (11) warranties for Corporation Property
equipment, fixtures, or Improvements, if any; (12) insurance policies
obtained for the benefit of the Corporation, the Board, or the
Corporation Property; (13) any lease or contract to which the Corporation
is a party; (14) the membership register, including mailing addresses and
telephone numbers, books of account and minutes of meetings of the
Members, Board, and any committees of the Corporation; and (15) any
instrument referred to in Section 11018 . 6 (d) of the California Business
L Professions Code but not described above which establishes or defines
the common, mutual or reciprocal rights or responsibilities of Members
of the Corporation.
Section 14 . Reserves . The Regular Assessments shall in-
clude reasonable amounts, as determined by the Board, collected as
reserves for the future periodic maintenance, repair and replace-
ment of all or a portion of the Corporation Property, or any such
other purpose determined by the Board. All amounts collected as re-
serves shall be deposited by the Board in a separate bank account
for the purposes for which they were collected, and are to be
50018.154-24590.FCM 051816 -6 6-
segregated from and not commingled with any other funds of the
Corporation. The expenditure of such funds shall be limited to the
repair and replacement of those elements of the Corporation
Property which must be repaired or replaced according to a reserve
study as permitted by Sections 4177, 4178 , and 5510-5560 of the
California Civil Code, as same may be amended from time to time.
Section 15 . Offsets and Waiver Prohibited. No Owner may
waive or otherwise avoid liability for the Assessments provided for
herein for any reason whatsoever, including, but not limited to,
non-use of the Corporation Property or abandonment of his Condo-
minium, nor shall any Owner be entitled to any offset against any
Assessment provided for herein for any reason whatsoever, includ-
ing, but not limited to, any expenditure made by such Owner for or
on behalf of the Corporation.
Section 16 . Exempt Property. The following property sub-
ject to this Declaration shall be exempt from the Assessments
herein:
(a) All property dedicated to and accepted by a
local public authority;
(b) All property owned by a charitable or nonprofit
organization exempt from taxation by the laws of the State of
California, however, no land or Improvements devoted to
dwelling use shall be exempt from said Assessment ; and
(c) Any Corporation Property owned in fee by the
Corporation.
ARTICLE VIII
EFFECT OF NONPAYMENT OF ASSESSMENTS :
REMEDIES OF THE CORPORATION
Section 1 . Effect of Nonpayment of Assessments : Reme-
dies of the Corporation. Any Regular, Special, or Compliance As-
sessment not paid within fifteen (15) days after the due date shall
be deemed delinquent and the Owner shall be required to pay: (a)
50018.154-24590.FCM 051816 -6 7-
i
reasonable costs of collection, including reasonable attorneys'
fees; (b) a reasonable late charge not exceeding ten percent (100)
of the delinquent Assessment or Ten Dollars ($10 . 00) , whichever is
greater, or as may, from time to time, be established by the Board
in accordance with California law; and (c) interest on all sums
imposed under this Section at an annual percentage rate not to
exceed twelve percent (12%) commencing thirty (30) days after the
Assessment was due. The Board, for and on behalf of the Corpora-
tion, may commence legal action against the Owner personally
obligated to pay the same, or, in the case of a Regular, Special
Assessment, may foreclose the lien against his Condominium. Such
lien may also be foreclosed by a power of sale or other nonjudicial
procedure provided for by the laws of the State of California . In
furtherance thereof, each Owner hereby vests in the Corporation,
its successors or assigns, the right and power to bring all actions
at law or to pursue lien foreclosure against any Owner for purposes
of collecting such delinquent Assessments . To the extent permitted
by law, each Owner waives, with respect to the extent of any liens
created pursuant to this Article, the benefit of any homestead or
exemption laws of California in effect at the time any Assessment,
or installment thereof becomes delinquent or any lien is imposed.
The Corporation' s acceptance of any partial payment of an
installment of an Assessment or any costs and attorney' s fees
attributable thereto shall not be deemed to be a waiver of the
Corporation' s right to demand and receive full payments thereafter.
Payments for Assessments shall first be applied to the principal
owed for the Assessments and only after such principal amount is
paid in full, shall such payments be applied to interest or
collection expenses for such Assessments . If requested by an
Owner, the Corporation shall provide the Owner with a receipt of
payment of Assessments, indicating the date of the Owner' s payment
of Assessments and the person who received such payment on behalf
of the Corporation. The Corporation shall establish a mailing
address for the overnight payment of Assessments .
Section 2 . Notice of Delinquent Assessments . No action
shall be brought to foreclose a lien for delinquent Assessments, or
to proceed under the power of sale herein, unless the Corporation
complies with all applicable provisions of law [e.g. , California
Civil Code Sections 5650-5660, as the same may be amended from time
to time, and provisions of California Civil Code Section 2924,
2924 (b) , and 2924 (c) , as may be amended from time to time] .
Section 3 . Foreclosure Sale . Any foreclosure sale pro-
vided for above is to be conducted by the Board, its attorney or
other persons authorized by the Board, in accordance with the
provisions of Sections 2924 , et sect. of the California Civil Code
applicable to the exercise of powers of sale in Mortgages and deeds
of trust, as same may be amended, from time to time, or in any
other manner permitted by law. The Corporation, through duly
authorized agents, shall have the power to bid on the Condominium
50018.154-24590.FCM 051816 -68
at a foreclosure sale and to acquire, hold, lease, mortgage and
convey the same .
Section 4 . Curing of Default . Upon the timely curing of
any default for which a Notice of Delinquent Assessments or lien
was filed by the Corporation, the officers thereof are hereby
authorized to file or record, as the case may be, an appropriate
release of such Notice upon receipt of payment from the defaulting
Owner of a reasonable fee to be determined by the Corporation to
cover the costs of preparing and filing or recording such release.
Section S . Cumulative Remedies . The Corporation' s reme-
dies for nonpayment of Assessments, including, but not limited to,
an action to recover a money judgment, Assessment lien and right of
foreclosure and sale, are cumulative and in addition to and not in
substitution of any other rights and remedies which the Corporation
and its assigns may have hereunder or at law.
Section 6 . Mortgagee Protection. Notwithstanding all
other provisions hereof, no lien created hereunder nor any breach
of the terms and provisions of this Declaration, nor the enforce-
ment of any term or provision hereof, shall defeat or render in-
valid the rights of any Mortgagee under any recorded first Mortgage
or deed of trust upon a Condominium made in good faith and for
value; provided, that after such Mortgagee or other person or
entity obtains title to such Condominium by judicial or nonjudicial
foreclosure, such Condominium shall remain subject to this
Declaration and the payment of Assessments which fall due subse-
quent to the date of taking title.
ARTICLE IX
USE RESTRICTIONS
Except as otherwise set forth in this Declaration, the
Condominium Units and Common Property shall be occupied and used
only as set forth hereinbelow.
Section 1 . Private Dwelling. Except as otherwise
provided herein, each Condominium shall be used for residential
purposes (i . e. , single family dwelling purposes only) , except such
temporary uses as shall be permitted by Declarant while the Project
is being developed and Condominiums are being sold by Declarant;
provided, however, that Declarant reserves unto itself, and its
successors and assigns, together with the right to grant and
transfer all or a portion of the same, until the earlier of five
(5) years from the date of recordation of this Declaration in the
County Recorder' s Office or when Declarant no longer owns any
interest in Tract No. 17930, the right to carry on normal sales
activity on the Project, including the operation of models, sales
office, design center and parking area, provided Declarant shall
50018.154-24590.FCM 051816 -6 9-
i
not unreasonably interfere with any other Owner' s use of the Common
Property.
Section 2 . Common Property Use . Use of the Common
Property shall be subject to the provisions of this Declaration,
the Rules and Regulations and to any additional limitations imposed
by any of the other Corporation management documents, and to any
additional limitations imposed by the Corporation or Board.
Section 3 . Conduct Affecting Insurance . Nothing shall
be done or kept in any Condominium Unit or in the Common Property
which will increase the rate of insurance on the Common Property
without the approval of the Corporation. No Owner shall permit
anything to be done or kept in his Condominium Unit or in the
Common Property which will result in the cancellation of insurance
on the Common Property or which would be in violation of any law.
If, by reason of the occupancy or use of said premises by the
Owner, the rate of insurance to the Common Property shall be
increased, the Owner shall become personally liable for the addi-
tional insurance premiums .
Section 4 . Liability for Damage to the Common Property.
Each Owner shall be liable to the Corporation, pursuant to the laws
of the State of California, for any and all costs and expenses
which may be incurred by the Corporation to repair any damage to
the Common Property which may be sustained by reason of the
negligent acts or omissions or the willful misconduct of said Owner
or any member of his family, his guests, tenants, lessees, or their
respective guests or invitees, whether minor or adult . Subject to
Notice and Hearing and approval by a majority of the Board, any
such costs and expenses shall be levied by the Board as either a
Special or Compliance Assessment against such Owner. The Corpora-
tion may, after notice and hearing as provided in the By-Laws, levy
a Special or Compliance Assessment against said Owner equal to the
increase, if any, in insurance premiums directly attributable to
the damage caused by the Owner or person for whom the owner may be
responsible .
Section 5 . Signs . Subject to Civil Code Sections 712 ,
713 , 4705 and 4710, and California Government Code Section 434 . 5,
as same may be amended from time to time, and the Rules and
Regulations and Architectural Review Committee rules, no sign,
advertising device or other display of any kind shall be displayed
in the Project or on any public street in or abutting the Project
except for the following signs:
(a) entry monuments , community identification
signs, and traffic or parking control signs maintained by the
Corporation;
50018.154-24590.FCM 051816 -7
(b) for each Condominium Unit, one (1) nameplate or
similar Owner name or address identification sign which
complies with the Architectural Review Committee rules ;
(c) for each Condominium Unit, one (1) sign
advising of the existence of security services protecting a
Condominium which complies with the Architectural Review
Committee rules;
(d) for each Condominium Unit, one (1) sign
advertising the Condominium Unit for sale or lease that
complies with the following requirements :
(1) the sign is not larger than such signs
commonly utilized for similar purposes by a real estate
company licensed to conduct business in the State of
California;
(2) the sign is attached to the ground by a
conventional, single vertical stake which does not exceed
normal size standards for signs commonly utilized for
similar purposes by a real estate company licensed to
conduct business in the State of California (i .e . , not
affixed to the condominium building or Exclusive Use
Corporation Property) ;
(3) the top of the sign is not taller than
such signs commonly utilized for similar purposes by a
real estate company licensed to conduct business in the
State of California; and
(4) other signs or displays authorized by the
Architectural Review Committee and the City.
Notwithstanding the foregoing, as long as Declarant owns a least
one Condominium in the Project, all for sale or lease signs for a
Condominium not owned by the Declarant shall be only displayed from
inside the windows of the Condominium.
Section 6 . Maintenance of Animals . No animals of any
kind shall be raised, bred or kept in any Condominium Unit or in
the Common Property, except that common domesticated dogs, cats,
birds or other household pets (other than small household pets such
as fish) , may be kept in each Condominium Unit in reasonable
numbers as determined by the Board; provided, however, that no
animal shall be kept, bred or maintained for any commercial purpose
and shall not exceed any weight limitations, if any, established by
the Board. As used in this Declaration, "reasonable numbers" shall
ordinarily mean two (2) total pets (excluding small household pets
such as birds and fish) per Condominium; however, the Board may
determine that a reasonable number in any instance may be more or
less than two (2) . Each Owner shall be responsible for cleaning up
50018.154-24590.FCM 051816 -7 1
it
any excrement or other unclean or unsanitary condition caused by
said animal in the Project . While walking or exercising an animal
in the Project, the owner thereof shall, at all times, have readily
available means to cleanup any excrement or other unclean or
unsanitary conditions caused by said animal . All permissible pets
belonging to Owners, tenants, lessees or guests must be kept within
an enclosed area, or on a leash being held by a person capable of
controlling the animal . The Corporation, upon the approval of two-
thirds (2/3) of the Board, shall have the right to prohibit main-
tenance of any animal within the Project which constitutes a pri-
vate nuisance to any other person. Every person bringing an animal
upon or keeping an animal in the Project shall be liable pursuant
to the laws of the State of California to each and all persons for
any injury or damage to persons or property caused by such animal .
Section 7 . Quiet Enjoyment . No Owner shall permit or
suffer anything to be done in the Project or kept upon such Owner' s
Condominium which will obstruct or interfere with the rights of
quiet enjoyment of the other occupants, or annoy them by unreason-
able noises (e.g. , inappropriate use of horns) or otherwise, nor
will any Owner commit or permit any nuisance on the premises or
commit or suffer any immoral or illegal act to be committed
thereon. Notwithstanding the foregoing, for as long as Declarant
owns any interest in Tract No. 17930 , the Declarant' s efforts in
selling the Condominiums may interfere with the Owners' quiet
enjoyment of the Condominiums; however, each Owner acknowledges
this and waives any claims against the Declarant for nuisance due
to any activity related to constructing, selling or marketing the
Condominiums . Each Owner shall comply with all of the requirements
of the Board of Health and of all other governmental authorities
with respect to said premises, and shall remove all rubbish, trash
and garbage from his Condominium Unit . All clotheslines , refuse
containers, woodpiles, storage boxes, tools and equipment shall be
prohibited from any Condominium unless obscured from view by a
fence or appropriate screen approved by the Architectural Review
Committee provided for hereinbelow.
Section 8 . Structural Changes . There shall be no
structural alteration, modification or construction to the exterior
of a Condominium Unit, fence or other structure whatsoever in the
Project without the prior written approval of the Board or its
designated Architectural Review Committee and the City, as required
herein, except such works of construction by Declarant during the
development of the Project . Each Owner understands that Owner has
no control over or ownership interest in the exterior of the
condominium building, except as set forth herein (e.g. , windows and
doors) . Nothing in this Declaration or the Rules and Regulations
shall require the installation of an Improvement in any manner
which violates Civil Code Section 4720 (relating to the installa-
tion and repair of a roof) .
50018.154-24590.FCM 051816 -7 2
Section 9 . Improvements . There shall be no construc-
tion, alteration or removal of any Improvement in the Project
(other than those repairs or rebuilding permitted under the Article
entitled "Damage or Destruction to the Corporation Property" ) with-
out the approval of the Architectural Review Committee and the
City, as set forth hereinbelow. No Improvement shall be
constructed upon any portion of any Corporation Property, other
than such Improvements as shall be constructed: (a) by the
Declarant (or a person or entity to whom Declarant assigns its
rights as developer) or (b) by the Corporation as provided herein,
as may be permitted by the Architectural Review Committee in
accordance with the Article herein entitled "Architectural Review -
Approval . " Each Owner assumes all risks which may result from
Improvements he makes to his Condominium Unit, and each Owner
indemnifies and holds harmless the Corporation, Declarant and each
other Owner from any claim, demands, liabilities, judgments,
attorneys' fees and other obligations which arise out of or are
incurred in connection with the installation, existence or removal
of such Improvements . NO OWNER MAY MODIFY THE EXTERIOR OR ANY
STRUCTURAL ELEMENT OF THE CONDOMINIUM BUILDINGS.
Section 10 . Window Coverings . Temporary window coverings
( "Temporary Window Coverings") in a design and color that does not
conflict with the surrounding Improvements (but excluding aluminum
foil, newspaper, plywood or any other contrasting material) are
permitted for a maximum period of sixty (60) days after the
Condominium is conveyed by Declarant to an Owner. Except as
specifically provided in the proceeding sentence, no Temporary
Window Coverings shall be used to cover any door or window of any
Condominium. All window coverings (including Temporary Window
Coverings) shall be of a neutral color harmonious with and not in
conflict with the color scheme of the exterior wall surface of the
condominium buildings .
Section 11 . Commercial Activity. No manufacturing,
mercantile, storage, vending or industrial operations of any kind
shall be conducted in or upon any Condominium Unit or the Common
Property, except such temporary uses as shall be permitted by De-
clarant while the Project is being constructed and Condominiums are
being sold by the Declarant . Notwithstanding the foregoing, this
Section shall not preclude an Owner from maintaining a business or
home office and conducting business activities therefrom so long
as : (a) such activities are conducted in conformance with all
applicable government ordinances (e.g. , all required permits and
licenses are obtained) ; (b) such activity does not increase the
liability or casualty insurance obligation or premium of the
Corporation; and (c) such activities are consistent with the
character of the Project and conform with the provisions of this
Declaration. In no event, however, shall any Owner or the
Corporation use a Condominium Unit as an office for the rental,
resale or leasing of Condominiums without the prior written consent
50018.154-24590.FCM 051816 -7 3
of Declarant so long as Declarant owns an interest in Tract No.
17930 .
Section 12 . Parking and Vehicular Restrictions . All
Owners, other residents, and their guests and invitees shall comply
with the following restrictions .
(a) Authorized Vehicles . The following vehicles
are "Authorized Vehicles" : standard passenger vehicles
including automobiles, passenger vans designed to accommodate
ten (10) or fewer people, motorcycles, and pick-up trucks
having a manufacturer' s rating or payload capacity of one (1)
ton or less . Authorized Vehicles may be parked in any portion
of the Project intended for parking of motorized vehicles;
however, no Owner may park a vehicle in a manner which the
Corporation determines either restricts the passage of
pedestrians or vehicles over streets or sidewalks in the
Project or extends beyond the limits of the space where the
vehicle is parked. The Corporation has the power to identify
additional vehicles as Authorized Vehicles in the Rules and
Regulations and to adapt this restriction to other types of
vehicles . No Owner may have more than two vehicles within the
Project, except as may otherwise be determined by the Board.
(b) Restricted Vehicles . The following vehicles
are "Restricted Vehicles : " recreational vehicles (defined as
any vehicle which has been equipped or designated by the
California Vehicle Code as a recreational vehicle) , motor
homes, travel trailers, campers (defined as any pick-up truck
with a camper living home installed on the truck or with a
"shell" rising more than 12" above the truck cab) , camper
vans, boats, watercraft and the like. Except for brief
periods for loading, unloading, making deliveries or emergency
repairs or as otherwise provided in the Rules and Regulations,
Restricted Vehicles may be parked or stored only in an Owner' s
garage with the door closed.
(c) Prohibited Vehicles . The following vehicles
are "Prohibited Vehicles" : (a) commercial-type vehicles
[e .g. , bus, truck, pick-up, flat-bed truck, stakebed trucks,
tank trucks, dump trucks, dual-wheel or oversized truck-
trailer vehicle, step vans, concrete trucks, limousines, or
other vehicle of any size which has lettering denoting a
commercial business painted or affixed on the side of the
vehicle or any vehicle of any size which has been equipped
with fixtures or devices such as racks, bins, ladders
(painting, plumbing, pool service, etc. ) , or for hauling or
transporting items associated with or pertaining to any
commercial endeavor] , (b) buses or vans designed to
accommodate more than ten (10) people, (c) vehicles having
more than two (2) axles or two (2) tires per axle, (d)
trailers, (e) inoperable vehicles or parts of vehicles, (f)
50018.154-24590.FCM 051816 -7 4-
aircraft, (g) any vehicle or vehicular equipment deemed a
nuisance by the Board, and (h) any other vehicle not
classified as an Authorized Vehicle or Restricted Vehicle .
Prohibited Vehicles may not be parked, stored or kept in an
Owner' s garage, on the private vehicular drive in the Project ,
or on any public street adjacent to or visible from the
Project or any other Corporation Property parking area except
for brief periods for loading., unloading, making deliveries or
emergency repairs . If a vehicle qualifies as both an
Authorized Vehicle and a Prohibited Vehicle, then the vehicle
is presumed to be a Prohibited Vehicle, unless the vehicle is
expressly classified as an Authorized Vehicle in writing by
the Board.
(d) The private vehicular drive and parking stalls
within the Project are subject to the Protective Covenants of
this Declaration, as well as all applicable laws, ordinances
and regulations of all governmental agencies having
jurisdiction over the Project . Parking is permitted only in
garages and in designated parking stalls within the Project,
if any. Any unassigned open parking spaces shall be available
on a first-come, first-served basis to all guests, visitors
and temporary parking for Owners (i .e . , only to accommodate
the delivery of items and/or moving in and out of the
Condominium) . Fire lanes and other no parking areas in the
Project are described and/or depicted on Exhibit "F" attached
hereto and incorporated by this reference .
(e) Except as may be otherwise expressly permitted
by the Corporation pursuant to duly adopted Rules and Regula-
tions, or approved by a governmental agency exercising
appropriate jurisdiction, parking in or obstructing any fire
lanes or along the streets in the Project, other than in
designated parking areas, is prohibited;
(f) Except as otherwise permitted by the Board, as
set forth herein, no Owner shall park any vehicle on any
portion of the Project, except wholly within his respective
garage. Each Owner is authorized to report parking violations
to the Corporation' s Board of D_rectors . Any enforcement
action taken to correct violations of the parking rules and
regulations shall be in accordance with the provisions set
forth herein.
(g) Each Owner shall keep his garage readily
available for parking of his respective vehicle (s) , and shall
not store any goods, materials, or recreational vehicles or
watercraft therein, nor use any portion thereof for a workshop
or other use, if such storage or use would prevent, prohibit,
and/or impede said Owner from parking the number of four wheel
vehicles therein for which said garage was originally designed
and constructed by Declarant to accommodate; moreover, any
50018.154-24590.FCM 051816 -7 5
i
materials stored in a garage may not encroach within the
minimum dimension required for each parking space by the
City' s Municipal Code . Each Owner shall ensure that all
parking spaces in his or her garage are at all times available
for parking and shall use such space for parking his or her
vehicles therein when said vehicles are in the Project.
Garage doors shall remain closed at all times, except as
reasonably required for entry to and exit from the garage .
Each Owner shall ensure that his garage door opener is in
proper working order at all times and that the garage is a
roll-up type door;
(h) No Owner shall conduct any repairs to any motor
vehicle of any kind whatsoever in or upon any portion of the
Project, except for emergency repairs thereto and then only to
the extent necessary to enable the vehicle to be moved to a
proper repair facility. As stated before, no garage shall be
used for any purpose other than parking of an Owner' s vehicle
and storage (only so long as such storage does not interfere
with the parking of Owner' s vehicles therein) ; and
(i) As required by the City, vehicle radios and
audio devices shall be kept at a reasonable (lowered) volume
when the vehicles are within the Project; no vehicle within
the Project (including, without limitation, trailers, campers,
motor homes, or recreational vehicles) may be used as a
residence; and, by acceptance of a deed to a Condominium, each
Owner agrees that the Corporation shall not be responsible for
any costs associated with the maintenance, insurance,
liability, theft, vandalism, loss of personal property, or any
damage to any vehicle anywhere inside the Project .
Section 13 . Regulation of Parking. Subject to the rights
of the Corporation, through its officers, committees and agents,
the Board is hereby empowered to establish "parking" and "no park-
ing" areas within the Corporation Property, including any fire
lanes, in accordance with Section 22658 of the California Vehicle
Code, or any similar statute hereafter enacted, as well as to
enforce these parking limitations by all means lawful for such
enforcement, including, but not limited to, the levying of fines
and the citing and towing of vehicles . The Board shall have the
authority to tow away and store any vehicle or similar equipment
parked in violation of the above limitations whether the same shall
belong to any Owner or a member of his family or to any tenant,
lessee, guest or invitee of any Owner. Charges for such towing and
storing shall be assessed against the Owner of the Condominium who
is responsible for or associated with the violation of such
restrictions, and such assessment may be enforced as a Compliance
Assessment .
Section 14 . Compliance With Management Documents . All
Owners shall comply with all of the Protective Covenants as set
50018.154-24590.FCM 051816 -7 6
forth herein, with the provisions of the Articles and the By-Laws,
with all Rules and Regulations of the Corporation.
Section 15 . Solar. As set forth herein, each Owner shall
have the right to place and maintain equipment and facilities
related to the installation and maintenance of individual solar
systems in a manner consistent with applicable law (e .g. , if
applicable, in the Owner' s Exclusive Use Corporation Property solar
panel area - current law does not give any Owner the right to
install solar panels and/or collectors in any other portion of the
Common Property, which in the Project includes both the exterior
and roof of the buildings containing the Condominium Units) ;
provided, however, that the Board shall have the right to require
that only a contractor or other person approved by the Board enter
the roof or other portion of the Corporation Property for the
purpose of placing, maintaining, repairing, and replacing such
solar panels or collectors, and shall have the right to condition
such entry on the contractor' s or other person' s compliance with
reasonable requirements for the protection of the Corporation
.Property (e .g. , requirements that the contractor be appropriately
licensed, maintain insurance coverage on which the Corporation is
named as an additional insured, and/or execute an indemnity
agreement in favor of the Corporation) . Each Owner shall be
responsible for procuring and maintaining appropriate third party
liability insurance relating to the solar systems, panels and
related facilities exclusively serving the Owner' s Condominium,
with limits approved by the Board (in its reasonable discretion) ,
and on which the Corporation shall be named as additional insured.
The installation and maintenance of any solar system by an
individual Owner shall be subject to all applicable zoning regula-
tions, the Uniform Building Code and City associated ordinances,
and reasonable review by the Architectural Review Committee for
compliance with the architectural standards adopted by the
Corporation, based on reasonable standards consistent with Section
714 of the California Civil Code, as same may be amended from time
to time. At a minimum, any solar panels or collectors are to be
integrated with the roof design, with the panels or collectors and
frame colored to match the roof or bronze anodized. By acceptance
of a deed to a Condominium in the Project, each Owner acknowledges
that the Solar Shade Control Act, codified at California Public
Resources Code Sections 25980 et seq. , as the same may be amended
from time to time, may impact the landscaping improvements that an
Owner may maintain on his or her Exclusive Use Corporation Property
patio, yard, deck and/or porch area (if applicable) . Currently,
under the Solar Shade Control Act, an Owner may not allow a tree or
shrub to be placed, or if placed, to grown on the Owner' s Exclusive
Use Corporation Property patio, yard, deck, or porch area (as
applicable) so as to cast a shadow that is greater than 10 percent
of a solar collector absorption area upon that solar collector
surface at any one time between the hours of 10 a.m. and 2 p.m.
local standard time; provided, however, that the foregoing
restriction applies only to a tree or shrub planted after the
50018.154-24590.FCM 051816 -7 7
installation of a solar collector and does not apply to a tree or
shrub planted prior to the installation of a solar collector. Prior
to making any Improvements on the Owner' s Exclusive Use Corporation
Property patio, deck, yard, or porch area (as applicable and if
permitted) , an Owner shall consider whether the proposed
Improvements will shade the absorption area of a solar collector
that has been installed within another Owner' s Exclusive Use
Corporation Property patio, yard, deck or porch area. Any Owner
submitting an application to the Architectural Review Committee for
the construction 'or installation of landscaping or other
Improvements on his Exclusive Use Corporation Property patio, yard,
deck, or porch area shall address in such application the impact of
such landscaping and Improvements on existing solar collectors in
the Project (including, without limitation, the height at maturity
of all trees, shrubs and other landscaping and the location and the
height of all Improvements installed on the respective properties) .
However, the Owner shall be solely responsible for complying with
the Solar Shade Control Act, and neither the Board or the
Architectural Review Committee shall be responsible for enforcing
any Owner' s compliance with the Solar Shade Control Act or
resolving any disputes between Owners which may arise under the
Solar Shade Control Act . By acceptance of a deed to a Condominium,
each Owner acknowledges and agrees that Declarant makes no
representation or warranty that any solar system installed in the
Project will, for any time period, be free from shading prohibited
by the Solar Shade Control Act, and, to the maximum extent
permissible under the law, each Owner releases and discharges
Declarant and the Corporation from any claims, loss, liability
and/or damage arising from the negative impact of any such shading.
Section 16 . Antenna Restriction. No Person may install
any antenna or over-the-air receiving device except for an
"Authorized Antenna" if allowed hereunder. An Authorized Antenna is
(i) an antenna designed to receive direct broadcast satellite
service, including direct-to-home satellite service, that is one
meter or less in diameter, or (ii) an antenna designed to receive
video programming service, including multichannel multipoint
distribution service, instructional television fixed service, and
local multipoint distribution service, and is one meter or less in
diameter or diagonal measurement, (iii) an antenna designed to
receive television broadcast signals, or (iv) an antenna used to
receive and transmit fixed wireless signals . An Authorized Antenna
may be mounted on a mast to reach the height needed to receive an
acceptable quality signal, subject to local governmental agency
permitting requirements for safety purposes .
(a) Restrictions on Installation. The Architec-
tural Review Committee may adopt reasonable restrictions on
installation and use of an Authorized Antenna as part of its
design guidelines in order to minimize visibility of the
Authorized Antenna from others Condominiums . Such restric-
tions may designate one or more preferred installation
50018.154-24590.FCM 051816 -7 8
locations, or require camouflage such as paint (subject to the
antenna manufacturer' s recommendations) or screening vegeta-
tion or other Improvements . However, no restriction imposed by
the Committee may (i) unreasonably delay or prevent the
installation, maintenance or use of an Authorized Antenna,
(ii) unreasonably increase the cost of installation, mainte-
nance or use of an Authorized Antenna, or (iii) preclude
acceptable quality reception.
(b) Prohibitions on Installation. The Architec-
tural Review Committee may prohibit the installation of an
Authorized Antenna in a particular location if, in the
Architectural Review Committee ' s opinion, the installation,
location or maintenance of such Authorized Antenna unreason-
ably affects the safety of the Owners or any other Person, or
for any other safety-related reason established by the
Committee, or impacts the condominium building (i . e. , no
attachment to the exterior or roof of the condominium build-
ing) . The Architectural Review Committee may also prohibit an
Owner from installing an Authorized Antenna on any real
property which such Owner does not own or is not entitled to
exclusively use or control under this Declaration (e .g. , an
Owner shall have no right to install anything on the exterior
or roof of the condominium buildings) . The Architectural
Review Committee also has the power to prohibit or restrict
the installation of any antenna or other over-the-air
receiving device that does not meet the definition of an
Authorized Antenna above.
(c) Review after Installation. The Architectural
Review Committee may review the location and installation of
an Authorized Antenna after it is installed. After its
review, the Architectural Review Committee may require that
the Authorized Antenna be moved to a preferred location (if
one has been designated) for safety reasons or to comply with
reasonable restrictions subject to this Section and applicable
law.
(d) Restatement of Applicable Law. This Section is
intended to be a restatement of the authority granted to the
Architectural Review Committee under the law. All amendments,
modifications, restatements and interpretations of the law
applicable to the installation, use or maintenance of an
antenna or other over-the-air receiving device shall be
interpreted to amend, modify, restate or interpret this
Section.
Section 17 . Other Structures . No basketball backboard or
other fixed or portable sports apparatus may be constructed or
maintained in the Project without the Architectural Review
Committee' s prior written approval . No fence or wall may be
erected, altered or maintained on any Condominium except with the
50018.154-24590.FCM 051816 -7 9
Architectural Review Committee' s prior written approval . No wiring
of any kind or air conditioning fixture, water softener or other
devices may be installed on the exterior of the condominium
building or in a Condominium or be allowed to protrude through the
walls or roof of the condominium building, except one (1) or more
chimneys and vents originally installed, if at all, by Declarant,
in a Condominium (with the exception of those items installed
during the original construction of a Condominium by Declarant)
unless the Architectural Review Committee' s prior written approval
is obtained. No Owner shall remove or make any Improvements to his
or her patio, deck, or other Exclusive Use Corporation Property
area unless and until the Architectural Review Committee has
approved plans for the removal or installation of any Improvements
showing such detail as the Architectural Review Committee or its
consultant deems appropriate .
Section 18 . Water Softeners . No Owner shall install any
on-site regenerative water softener within any portion of the
Project, unless approved in writing by the Board and applicable
governmental agency.
Section 19 . Leasing. With the exception of a lender in
possession of a Condominium following default of a first mortgage,
foreclosure or deed or other arrangement in lieu of foreclosure,
the following restrictions apply to the rental or lease of a
Condominium: no Owner shall be permitted to rent or lease any
portion of his Condominium for transient or hotel purposes or for
a period of less than thirty (30) days . Any lease or rental
agreement must be for the entirety of the Condominium; an Owner may
not lease or rent only a portion of the Condominium. All rental
and lease agreements shall be in writing, and shall provide that
the terms of such agreement shall be subject in all respects to the
provisions of this Declaration, By-Laws, Articles, Rules and Regu-
lations and that any failure by the tenant or lessee to comply with
the terms of such documents shall constitute a default under such
agreement .
Section 20 . Drilling. No oil drilling, oil development
operations, oil refining, quarrying or mining operations of any
kind shall be permitted within the Project, nor shall oil wells,
tanks, tunnels or mineral excavations be permitted within the
Project . No derrick or other structure designed for use in boring
for oil, water or natural gas shall be erected, maintained or
permitted within the Project .
Section 21 . Trash. Each Owner shall place all rubbish,
trash, garbage, recycling, and other waste material (collectively,
"Trash") in garbage cans, garbage bags or other closed containers .
All such individual garbage cans and other containers shall be
stored in the Owner' s Residence or garage and shall be obscured
from view from the Corporation Property, and each Owner shall use
his best efforts to assure that no odor shall arise therefrom so as
50018.154-24590.FCM 051816 -8
to be unreasonably offensive to any adjacent Condominium or other
portion of the Project, or to otherwise be unsanitary, unsightly,
offensive or detrimental to any other residents in the Project .
Trash may not be stored overnight in patio, deck, yard or porch
areas or other Exclusive Use Corporation Property areas (if any) .
No Trash or containers may be left or stored on patios, yards,
decks, porches or any other Corporation Property. All Owners shall
utilize the common trash bins in the Project for the disposal of
their Trash in accordance with the Rules and Regulations and all
applicable laws. The lids on the common trash bins shall remain
closed at all times except during the disposal of Trash or the
trash collector's emptying of the common trash bins. No toxic or
hazardous materials (other than household cleansers) may be
disposed of within the common trash bins . The Board may adopt
additional Rules and Regulations regarding disposal of trash as the
Board may deem reasonable and necessary.
Section 22 . Exemption of Declarant . Nothing in this
Article or elsewhere in this Declaration shall limit, restrict,
abridge or control, in any manner whatsoever, the rights of De-
clarant to complete the planning, development, grading, construc-
tion, advertising, marketing, leasing and sales of the Condomini-
ums, and all other property within the Project, including, without
limitation, the following specific rights, which may be exercised
by Declarant, and their successors and assigns, or by their agents
and employees, in conjunction with such development and marketing,
until the earlier of (1) when Declarant no longer owns an interest
in Tract No . 17930, or (2) five (5) years from the recordation of
this Declaration:
(a) The right to maintain and operate one (1) or
more advertising, sales or leasing office (s) , construction
trailer, portable restrooms, located upon any Property owned
by Declarant, or Corporation Property;
(b) The right to post and display from any Corpora-
tion Property any sign, flag, banner, billboard or other
advertising which Declarant may, in its sole discretion, deem
appropriate, irrespective of size, color, shape or materials
of such items, so long as such use does not unreasonably
interfere with the Owner' s normal use and enjoyment of the
Corporation Property;
(c) The right to install, place, replace, con-
struct, reconstruct, modify or remove any Improvement from any
Corporation Property, as Declarant may, in its sole discre-
tion, deem appropriate; provided that in the event Declarant
removes any Corporation owned Improvement from any Corporation
Property without the express prior written consent of the
Board, Declarant shall replace such Improvement with an
Improvement of substantially similar value, appearance and
50018.154-24590.FCM 051816 -8 1
utility within a reasonable period following completion of any
work necessitating the removal of the Improvement;
(d) The right to conduct any commercial activity
upon any Corporation Property which reasonably relates to the
development, marketing, leasing or sales of the Condominiums
in the Project;
(e) The right to park vehicles upon any Corporation
Property; and
(f) The right to use the private drives and common
parking spaces within the Project, which right shall also
extend to prospective purchasers or lessees of the
Condominiums or of other property within the Project .
All or any portion of the rights of Declarant herein and
elsewhere in this Declaration may be assigned by Declarant to any
successor-in-interest in the Project, by an express written
assignment recorded in the Office of the County Recorder.
Section 23 . No Easements For View Purposes; Disclaimer.
Neither the City, the Declarant nor the Architectural Review
Committee, nor the members, representatives, employees or consul-
tants of any of the foregoing, have made any representations
whatsoever concerning the view, if any, that a particular Condomin-
ium or other Improvement thereon will enjoy. There are no rights,
express or implied easements whatsoever appurtenant to any
Condominium for view purposes or for the passage of light and air
across any other Condominium or any property not within the
Project, regardless of whether such Condominium is owned by
Declarant . Each Owner accepting a deed to a Condominium hereby
expressly acknowledges and agrees that the Condominiums, walls and
fences constructed by Declarant, and further construction, both
within the Project and in the immediate vicinity of the Project,
may impair the view from such Owner' s Condominium, and each Owner
hereby expressly consents to any such impairment . Each Owner
further acknowledges and understands that property surrounding the
Project may be developed or redeveloped in accordance with
applicable City standards . Concerns pertaining to the future
development of surrounding property should be addressed with the
City.
Section 24 . Screen Doors . No Owner shall install any
screen door in any portion of the Condominium Unit unless such
Owner has written approval from the Architectural Review Committee.
Section 25 . Pollutant Control . The Corporation and each
Owner shall comply with any NPDES requirements, Water Quality
Management Plans, and the BMP guidelines (as defined below) , as
such requirements, plans , and guidelines apply to the Project .
50018.154-24590.FCM 051816 -8 2
A. NPDES Requirements . The Project is subject to
all Federal, State and local requirements of the National Pollutant
Discharge Elimination System ( "NPDES" ) adopted pursuant to the
Federal Clean Water Act. Pursuant to a NPDES General Permit
adopted by the State Water Resources Control Board and the County
NPDES Storm Water Permit Program, Drainage Area Management Plan
( "DAMP" ) , the City has adopted a Local Implementation Plan ( "LIP" )
and Water Quality Management Plan for the Project ( "WQMP" ) which
identifies certain Best Management Practices ( "BMPs" ) to reduce the
discharge of pollutants to storm water facilities (e.g. ,
appropriate stormwater pollution control related to the Project' s
structural, treatment control, and non-structural facilities in
order to prevent all pollutants from contacting storm water and
keeping all products of erosion from moving off site into receiving
waters, as required by the State Water Resources Control Board
[SWRCB] and the National Pollutant Discharge Elimination System
[NPDES] ) , before, during and after construction on the Project is
completed. The Corporation and the Owners shall comply with all
applicable BMPs and perform all maintenance imposed by DAMP and the
WQMP, as amended, and the Corporation shall obtain any certifica-
tions and permits or accept an assignment from Declarant of any
such certifications and permits as are required by the DAMP and the
WQMP. The costs of the Corporation' s portion of such maintenance,
if any, shall be treated as Common Expenses .
B . Specific BMPs . As required by the City, and/or
Project specific BMPs, the Corporation shall ensure that all
Corporation Property, consisting of streets, parkway areas,
driveways , sidewalks, flat work, and the like, is swept on at least
a monthly basis, with two (2 ) sweepings occurring before the
beginning of the rainy season. The mandatory sweepings shall be at
least two (2) weeks apart. The Corporation shall also comply with
the requirements set forth in the Article of this Declaration
entitled "Environmental and Other Disclosures and Requirements . "
C. Guidelines . The Corporation shall ensure that
all Corporation Property landscape irrigation is implemented in
accordance with the BMPs, including without limitation (a) the
provision for water sensors and programmable irrigation times
allowing for short cycles, (b) the use of planting material similar
to that installed by Declarant, as applicable, and with similar
water requirements in order to reduce excess irrigation runoff and
to promote surface filtration, and (c) the maintenance of all
permanent slopes with required landscaping with native or other
drought tolerant planting materials .
Nothing other than natural rain water or potable water may be
discharged into the storm drains and storm drainage system located
on private or public property. Toxic chemicals or hydrocarbon
compounds such as gasoline, motor oil , antifreeze, solvents,
paints, paint thinners , wood preservative and other such fluids
shall not be discharged into any street, public or private, or into
50018.154-24590.FCM 051816 -83
storm drains or storm water conveyance systems . Use and disposal
of pesticides, fungicides, herbicides, insecticides, fertilizers
and other such chemical treatments shall meet Federal, State,
County and City requirements as prescribed on their respective
containers . All Owners within the Project and the Corporation are
required to comply with such restrictions .
Section 26 . Corporation Property. No Owner shall take
any action which will detract from the maintenance of the Corpora-
tion Property in a in a neat, clean, safe, sanitary, attractive and
orderly condition at all times. No Owner shall use or permit the
area outside of the front door to his Condominium Unit or his or
her Exclusive Use Corporation Property patio, yard, deck , porch
area to be used in any manner which will obstruct or interfere with
the rights of quiet enjoyment of other occupants . Without limiting
the generality of the foregoing, except as may be allowed by the
Rules and Regulations, no Owner shall install, place, keep or store
any storage units, boxes, refuse, recyclable materials, storage,
refuse, or recycling containers, woodpiles, personal effects,
clothing, shoes, clotheslines, clothes drying racks, or other
equipment, bicycles, or any children' s toys or equipment (includ-
ing, without limitation, tricycles, wagons, strollers, skateboards,
scooters, slides, and playhouses) in the area outside of the front
door of his Condominium Unit or within his or her Exclusive Use
Corporation Property patio, yard, deck and/or porch area; maintain
any plants or planter boxes on top of or attached to the fence or
railing enclosing his or her patio, deck, yard and/or porch area;
or water any plants located within his patio, yard, deck and/or
porch area in such a manner so that excess water drains into the
patio, yard, deck and/or porch area of another Condominium Unit,
any other Exclusive Use Corporation Property area, or the
Corporation Property. As noted above, no Owner shall remove or make
any Improvements to his or her patio, yard, deck, porch, solar
panel, air conditioning pad, or other Exclusive Use Corporation
Property area unless and until the Architectural Review Committee
has approved plans for the removal or installation of any
Improvements showing such detail as the Architectural Review
Committee or its consultant deems appropriate. The Board may adopt
additional Rules and Regulations regarding the patio, yard, deck,
porch, and/or other Exclusive Use Corporation Property areas as the
Board may deem reasonable and necessary.
Section 27 . Rights of Disabled. Subject to the
provisions of this Declaration, Civil Code Section 4760, State and
Federal Laws regarding accommodations for the handicapped, and
approval by the Architectural Review Committee, each Owner may
modify his Condominium Unit and the route leading to the front door
of his Condominium Unit, at his sole expense, in order to facili-
tate access to his Condominium Unit by persons who are blind,
visually impaired, deaf or physically disabled, or to alter
conditions which could be hazardous to such Persons .
50018.154-24590.FCM 051816 -8 4
Section 28 . Water Beds . Each Owner hereby acknowledges
that no water beds are allowed in the Project and any Owner who
breaches this Section shall indemnify and hold the Declarant,
Corporation, and Members harmless from any claims, damages, losses
or other liability arising from such breach.
Section 29 . Automatic Fire Sprinkler and Alarm System.
No Owner or other resident of the Project shall paint , alter,
modify, disable or take any other action which might impair the
automatic fire sprinkler system and alarm notification devices in
the Project, including, without limitation, the sprinkler heads
within his Condominium Unit . By acceptance of a deed to a
Condominium Unit, each Owner acknowledges that a fire in his
Condominium will trigger the release of water from the automatic
fire sprinkler system and that water damage to the Condominium Unit
and personal property therein may occur. Owners are prohibited
from hanging any items from, or otherwise damaging, any exposed
pipes or sprinkler heads .in his Condominium Unit . The Corporation
is responsible for maintaining the automatic fire sprinkler and
alarm system in the Project, including, without limitation, any
sprinkler heads within the Owner' s Condominium Unit, and will be
required to enter each Owner' s Condominium Unit from time to time
in order to inspect and perform any required maintenance.
Section 30 . No Use of Hazardous Materials . No Owner or
other occupant of the Project shall use or allow any portion of the
Project to be used for the generation, manufacture, storage,
disposal, or release of Hazardous Materials . For purposes of this
Declaration, the term "Hazardous Materials" shall mean any
substances that are toxic, corrosive, inflammable, and/or ignit-
able, petroleum and petroleum byproducts, lead, asbestos , any
hazardous wastes, and any other substances that have been defined
as "hazardous substances , " "hazardous materials, " "hazardous
wastes, " "toxic substances, " or other terms intended to convey such
meaning, including those so defined in any of the following federal
statutes, beginning at 15 U.S .C. section 2601 et seq. , 22 U. S .C.
section 1251 et seq. , 42 U.S .C. section 6901 et seq. (RCRA) , 42
U.S . C. section 7401 et seq. , 42 U. S.C, section 9601 et seq.
(CERCLA) , 49 U.S .C. section 1801 et seq. (HMTA) ; or California
statutes beginning at California Health and Safety Code Section
25100 et seq. , Section 25249 . 5 et seq. , and 25300, et seq. , and
California Water Code Section 13000, et seq. , the regulations and
publications adopted and promulgated pursuant to such statutes and
any similar statutes and regulations adopted hereafter. Hazardous
Materials shall not include substances that are stored on the
Property as part of the normal construction and operation of
residential housing.
Section 31 . Noise . Each Owner will experience noise,
odors, fumes, and other adverse impacts associated with but not
limited to, use of the Corporation Property or Condominium, and as
a result of living in close proximity to neighbors . These adverse
50018.154-24590.FCM 051816 -85
impacts include, without limitation, noise generated b plumbing
Y P g
fixtures and appliances that use water (e.g. , toilets, sinks,
bathtubs, showers, dishwashers, washing machines) , televisions,
radios, stereo systems, computers, human voices, walking on hard
surfaces, the movement of furniture and people, children crying and
playing, animal noises (e.g. , dogs barking) , the use and
maintenance of landscaping and recreational facilities, air
conditioners, exhaust systems and vents, electrical transformers,
air conditioning condensers, maintenance and repair activities, and
other activities, and odors and fumes generated by the smoking of
cigarettes, cigars, pipes, barbecues, fireplaces, cooking,
cleaning, and other activities. Living in a Condominium within a
densely populated community entails living in close proximity to
other persons, with limitations on solitude. Notwithstanding
whether or not floors, walls, and ceilings have been constructed
and designed to meet applicable building codes, the buildings
containing the Condominium Units and the individual Condominium
Units therein are not sound and/or odor proof, and noise and/or
odors from adjacent Condominiums, the Corporation Property, and
surrounding areas will be heard and smelled. Residents may hear
the sound of garage doors opening at all hours of the day and
night, including, without limitation, the mornings and early
evenings when residents leave and return. Residents of the Project
may not engage in behavior or activities in their Condominiums or
Corporation Property which impair other residents' quiet enjoyment
of their Condominiums . The Project is currently located in an area
in which considerable noise and light from traffic, traffic lights
(e.g. , traffic light at intersection of Newland and Slater, etc . ) ,
churches (e.g. , a church is currently located next to the southern
border of the Project, etc . ) , air traffic (e .g. , from Long Beach
Airport, John Wayne International Airport, helicoptors, etc. ) ,
construction activities, truck deliveries, trash pick-up, and other
activities will be generated.
Section 32 . Sound Control Engineering. No alteration,
repair or replacement may be made to any building in the Project
which may diminish the effectiveness of the sound control engineer-
ing in the building. Modifications to the floor, wall or ceiling of
an Condominium Unit shall occur in the manner set forth in the
Rules and Regulations, which may include the following:
(a) COMMON WALL SYSTEMS
(1) Condominium Unit common walls (e.g. , party
walls) shall not be modified in any manner without the
prior written approval of the Architectural Review
Committee which would increase the noise levels in any
other Condominium Unit or the Corporation Property.
(2) Condominium Unit common walls (e.g. , party
walls) shall not be modified in any way which would
50018.154-24590.FCM 051816 -8 6
compromise the acoustical performance of the as-built by
Declarant common wall assembly.
(b) PLUMBING SYSTEM
(1) The plumbing systems (excluding faucets)
of the Condominium Units shall not be modified in any
manner without the prior written approval of the
Architectural Review Committee . The Owner comply with any
Rules and Regulations which may require written evidence
that the modifications will not increase the noise levels
generated by the as-built plumbing system in any other
Condominium Unit . Examples of such modifications include,
but are not limited to, the installation of spa tubs . If
required by the Board, each Owner must use a licensed and
approved contractor who has met any insurance obligations
required by the Board.
(c) ALLOWED NOISE LEVELS
(1) No Condominium Unit owner or occupant, or
Condominium Unit mechanical, plumbing or electrical
system, shall produce sound levels within any other
Condominium Unit that exceed the interior noise limits of
the local governing jurisdiction in any other Condominium
Unit . If there is no local noise limit that applies, the
applicable limit shall be a maximum level of 50 dBA from
7 : 00 A.M. to 10 : 00 P.M. and 45 dBA from 10 : 00 P.M. to
7 : 00 A.M. as measured inside any other Condominium Unit
with all windows and doors of the affected Condominium
Unit in a fully closed position.
(d) OTHER REQUIREMENTS
(1) To minimize the noise transmission from a
Condominium Unit, each Owner (other than Declarant) shall
comply with the requirements noted above, and the
following:
(a) No modifications shall be made to
any Condominium Unit which would result in a reduc-
tion in the minimum impact insulation class of the
Condominium Unit .
(b) Pianos shall have at least 1/2 inch
neoprene pads under the supports to minimize vibra-
tion transmission into the structure.
Section 33 . Addresses . As required by the City, address
numbers shall be maintained on the front of each building, in a
contrasting color with the background, and shall be a minimum of
50018.154-24590.FCM 051816 -8 7
i
four inches (411 ) high with one and one half inches (1/211 ) brush
stroke.
Section 34 . No Warranty of Enforceability. While
Declarant has no reason to believe that the restrictive covenants
contained in this Article or elsewhere in this Declaration are or
may be invalid of unenforceable for any reason or to any extent,
Declarant makes no warranty or representation as to the present or
future validity or enforceability of any such restrictive covenant .
Any Owner acquiring a Condominium in the Project in reliance on one
or more of such restrictive covenants shall assume all risks of the
validity and enforceability thereof, and, by acquiring the
Condominium, agrees to hold Declarant harmless from any injury or
damage therefrom.
ARTICLE X
REPAIR AND MAINTENANCE
Section 1 . Repair and Maintenance by Corporation.
Without limiting the generality of the provisions herein, including
the Article entitled "Powers and Duties of the Corporation, " and
except as otherwise provided in this Declaration, the Corporation
shall have the duty to maintain the Corporation Property in a neat,
clean, safe, sanitary, attractive and orderly condition at all
times, wear and tear excepted. Without limiting the generality,
such maintenance shall include, but not be limited to, painting,
maintaining, repairing, restoring, replacing, removing graffiti,
and landscaping (as the case may be) the following:
(a) The exterior surfaces of all condominium
buildings in the Project, including exterior walls and roofs,
doors (all repairs to Condominium Unit exterior doors and
garage doors, including the structural maintenance thereof,
shall be at the sole expense of the respective Owner unless
otherwise agreed to by the Board) , the walls, fences, gates
(excluding the hinges and locks, which shall be maintained by
each Owner) , and/or railings enclosing the patio, yard, deck
and/or porch areas (unless otherwise expressly described and/or
depicted as maintained by an Owner on Exhibit "G" hereto) , the
exterior stairways (if any) , any air conditioner pads or
forced air heating unit pads, only if such pads are located
outside the Condominium Unit and originally included in the
Corporation budget reviewed by Ca1BRE or subsequently approved
by the Board (if such pads are located on with Exclusive Use
Corporation Property, the maintenance shall be that of the
Owner thereof) , metal awnings, exterior lights on the condo-
minium buildings (which are not controlled by a switch within
the Condominium) , and gutters and downspouts;
50018.154-24590.FCM 051816 -8 8
(b) The private vehicular drive (together with any
private common street lights and/or other common exterior
lights and other Improvements thereon) , decorative paving,
common parking areas, and sidewalks (if any) . As required by
the City, all fire apparatus access areas shall be maintained
in compliance with City' s specifications, no parking shall be
allowed in the fire lanes described and/or depicted on Exhibit
"F" hereto, and all fire lanes shall be posted, marked and
maintained per the City' s specifications ;
(c) Project fences and walls (the structural
integrity, top and exterior) described and/or depicted as
maintained by the Corporation on Exhibit "G" attached hereto.
Project fences and walls shall mean and refer to those certain
walls and fences which were originally constructed by Declar-
ant on the Corporation Property or other portion of the
Project, which are designated by Declarant or Board to
constitute Project fences and walls and which will be main-
tained (e.g. , in a clean and attractive condition) by the
Corporation;
(d) Private common on-site domestic and fire main
water lines described and/or depicted as maintained by the
Corporation on Exhibit "F" hereto (specifically excluding each
water lateral that exclusively serves a Condominium Unit from
within the residence to the water meter) ;
(e) Private on-site common sewer lines and facili-
ties described and/or depicted as maintained by the
Corporation on Exhibit "E" attached hereto (specifically
excluding each sewer lateral exclusively serving a Condominium
Unit from within the Residence to the point of connection to
the private common sewer line within the Project) ;
(f) The private storm drain system for the Project
described and/or depicted as maintained by the Corporation on
Exhibit "D" attached hereto, including all holding tanks, dry
wells, catch basins, area drains, and other devices originally
required by the City, in accordance with the Water Quality
Management Plans approved for the Project . The Corporation is
responsible for cleaning out all on-site storm drains depicted
on Exhibit "D" each year, at least once prior to October 15th
(i .e . , before the rainy season) and once in January, and
conducting any additional cleanings, as may be required by the
City Engineer or determined by the Board, and for performing
periodic backflow inspections;
(g) All common amenities, common trash bins, mailbox
structures servicing multiple Condominiums (excluding each Owner' s
individual mailbox and the hinges, lock, and keys thereof, which
shall be maintained by the Owner) , Project signs and monumentation,
common recreational areas (e.g. , open space, outdoor furniture,
50018.154-24590.FCM 051816 -8 9
I
fountain, etc. ) , landscape maintenance areas described and/or
depicted as maintained by the Corporation on Exhibit "I" attached
hereto, and common landscaped areas and improvements, excepting
therefrom any landscaping or other Improvements located in Exclusive
Use Corporation Property. As required by the City, maintenance of
all common landscaped areas shall include all weeding, fertilizing,
pest and disease control and plant replacements, the removal of non-
native and/or invasive species, replacement of the plant materials
for the Project originally approved by the City and installed by
Declarant (as required) , tree-trimming, irrigation adjustments, and
equipment replacements and trash clean-up. The standards for
landscape maintenance shall be as set forth in the City
Arboricultural and Landscape Standards and Specifications and shall
include the Arboricultural maintenance section for public property
for tree trimming and care;
(h) A program for the inspection and the mainte-
nance of, all fire sprinklers, fire standpipes, fire alarm
systems, fire extinguishers, and other fire prevention
equipment and/or facilities, if any, originally installed by
Declarant in the condominium buildings in a condition compara-
ble to the condition originally approved by the City. Without
any limitation of the foregoing, the Corporation. shall cause
the automatic fire sprinkler system to be serviced and
maintained in working order at all times (as required by the
City, maintenance inspections shall be performed quarterly,
and the automatic fire sprinkler system shall be serviced at
50018.154-24590.FCM 051816 -9
least every five years by a state licensed C-16 Fire
Protection Contractor) ; shall maintain a current fire
sprinkler certification for the automatic fire sprinkler
system in accordance with applicable law and the requirements
of the City' s Fire Department; shall maintain service and
maintenance records of the automatic fire sprinkler system at
the Project and shall have them available for review by the
City' s Fire Department upon request; and shall submit the
required fire sprinkler certification report to the City' s
Fire Department prior to the expiration of the previous five-
year certification;
(i) All amenities and all furnishings, equipment
and other personal property owned by the Corporation;
(j ) All Corporation Property lighting facilities;
(k) An inspection and preventive program for the
prevention and eradication of infestation by wood destroying
pests and organisms in the Corporation Property. In connection
with the inspection and prevention program for the prevention
and eradication of infestation by wood destroying pests and
organisms, the Corporation, upon reasonable notice (which
shall be given no less than fifteen [151 days nor more than
thirty [301 days before the date of temporary relocation) to
each Owner and the occupants of his/her Condominium Unit, may
require such Owner and occupants to temporarily relocate from
such Condominium Unit in order to accommodate efforts by the
Corporation to eradicate such infestation. The notice shall
state the reason for the temporary relocation, the date and
time of 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. Any damage caused to a Condominium Unit by such
entry by the Board or by any person authorized by the Board
shall be repaired by the Board as a Common Expense of the
Corporation. All costs involved in maintaining the inspection
and preventive program as well as repairing and replacing the
Corporation Property and Improvements thereon when the need
for such maintenance, repair or replacement is the result of
wood destroying pests or organisms shall be a Common Expense
subject to the restrictions applicable to Special Assessments;
(1) Maintaining everything that the Corporation is
obligated to maintain in a clean, sanitary and attractive
condition reasonably consistent with the level of maintenance
reflected in the most current budget of the Corporation, and
in conformance with any Maintenance Guidelines . Unless
specifically provided in any Maintenance Guidelines, or as
commonly accepted maintenance practices may govern, the Board
shall determine, in its sole discretion, the level and
frequency of maintenance of the Corporation Property and
50018.154-24590.FCM 051816 -9 1
Improvements thereon (as set forth below, each Owner shall
maintain everything that Owner is obligated to maintain in a
clean, sanitary and attractive condition and in conformance
with any Maintenance Guidelines and Maintenance Recommenda-
tions, as well as commonly accepted maintenance practices and
the product manufacturer' s maintenance recommendations) ; and
(m) All other areas, facilities, furnishings and
Improvements of whatever nature as may, from time to time, be
requested by the vote or written consent of three-fourths
(3/4) of the voting power of the Members .
Except as otherwise provided herein, all costs and expenses for
such maintenance above shall be a Common Expense, and shall be paid
out of the general operating fund of the Corporation. The Board
shall have the right to require that only a contractor or other
person approved by the Board enter the roof or other portion of the
Corporation Property and to condition such entry on the
contractor' s or other person' s compliance with reasonable require-
ments for the protection of the Corporation Property (e .g. ,
requirements that the contractor be appropriately licensed,
maintain insurance coverage on which the Corporation is named as an
additional insured, and/or execute an indemnity agreement in favor
of the Corporation) . A maintenance matrix is attached hereto as
Exhibit "C" and incorporated by reference. Any conflict between
the matrix and the provisions herein shall be resolved by a
unanimous vote of the Board.
Section 2 . Maintenance Manual . The Declarant may
deliver to the Board a "Maintenance Manual" which sets forth the
Declarant ' s and its consultants' recommended frequency of inspec-
tions and maintenance of various components of the Corporation
Property. The Board shall, during its meetings, determine whether
the recommended inspections and maintenance activities have been
followed, and, if any such recommendations have not been followed,
what corrective steps need to be taken to assure proper inspection
and maintenance of the Corporation Property. The Board shall keep
a record of such determinations in the Board' s minutes . The Board
shall, from time to time, make appropriate revisions to the
Maintenance Manual . The Board shall review the Maintenance Manual
for appropriate revisions at least on an annual basis after the
Board has prepared the annual pro forma budget and reserve study
required by the By-Laws.
In addition to the requirements of any Maintenance
Manual, the Board may have the Corporation Property inspected at
least once every three (3) years to (a) determine whether the
Corporation Property is being maintained adequately in accordance
with commonly accepted standards of maintenance, (b) identify the
condition of the Corporation Property and any Improvements thereon,
including the existence of any hazards or defects, and the need for
performing additional maintenance, refurbishment, replacement or
50018.154-24590.FCM 051816 -9 2
repair, and (c) recommend preventative actions which may be taken
to reduce potential maintenance costs to be incurred in the future.
The Board may employ such experts and consultants as are necessary
to perform such inspection. The Board may have a report of the
results of the inspection prepared. The report should include at
least the following:
(a) A description of the condition of the Corpora-
tion Property, including a list of items inspected and the
status of maintenance, repair and need for replacement of all
such items;
(b) A description of all maintenance, repair and
replacement planned for the ensuing fiscal year and included
in the budget;
(c) If any maintenance, repair or replacement is to
be deferred, the reason for such deferral;
(d) A summary of all reports of inspections
performed by any expert or consultant employed by the Board to
perform inspections;
(e) A report of the status of compliance with the
maintenance, replacement and repair needs set forth in the
inspection report for preceding years ; and
(f) Such other matters as the Board deems appropri-
ate .
Section 3 . Project Inspections . The Board shall
require strict compliance with all provisions of this Declaration
and shall periodically cause a compliance inspection of the Project
to be conducted by the Architectural Review Committee to report any
violations thereof . The Board shall also cause inspections of the
Corporation Property and all Improvements thereon to be conducted
in conformance with the applicable Maintenance Guidelines, and in
the absence of inspection frequency recommendations in any
applicable Maintenance Guidelines at least once every three (3)
years, in conjunction with the inspection required for the reserve
study to be conducted as required herein, in the By-Laws or by
State law (e.g. , Civil Code Section 5550, etc . ) , to (a) determine
whether the Corporation Property is being maintained adequately in
accordance with applicable standards of maintenance, (b) identify
the condition of the Corporation Property and any Improvements
thereon, including the existence of any hazards or defects, and the
need for performing additional maintenance, refurbishment,
replacement, or repair, and (c) recommend preventive actions which
may be taken to reduce potential maintenance costs to be incurred
in the future . The Board shall, during its meetings, regularly
determine whether the recommended inspections and maintenance
activities set forth in any applicable Maintenance Guidelines have
50018.154-24590.FCM 051816 -9 3-
been followed and, if not followed, what corrective steps need to
be taken to assure proper inspections and maintenance of the
Corporation Property and all Improvements thereon. The Board shall
keep a record of such determinations in the Board' s minutes . The
Board shall keep Declarant fully informed of the Board' s activities
under this Section. The Board shall employ, consistent with
reasonable cost management, such experts, contractors and
consultants as are necessary to perform the inspections and make
the reports required by this Section.
The Board shall prepare a report of the results of
each of the inspections required by this Section, which shall
comply with Section 2 above, including: For a period of ten (10)
years after the date of the last close of escrow for a Condominium
in the Project, the Board shall also furnish to Declarant (a) the
report of each inspection performed for the Board, whenever such
inspection is performed and for whatever portion of the Corporation
Property that is inspected, within thirty (30) days after the
completion of such inspection, and (b) the most recent inspection
report prepared for any portion of the Corporation Property, within
ten (10) days after the Corporation' s receipt of a written request
therefor from Declarant .
Section 4 . Maintenance of Project Subject to Construc-
tion Easement . Notwithstanding anything stated to the contrary in
this Declaration, the Corporation shall have no obligation to
maintain or repair any portion of the Project until commencement of
the Corporation' s Assessments against the Condominiums within the
Project .
Section 5 . Repair and Maintenance by Owner. Except as
otherwise provided in this Declaration (including Section 1 above)
regarding the Corporation' s maintenance obligations affecting an
Owner' s Condominium, every Owner shall have the duty to maintain,
repair and replace, at his sole cost and expense, all Improvements
within such Owner' s Condominium or which represent an integral part
thereof (e.g. , pipes and utility lines and outlets which provide
service to only one Condominium, including the internal and
external telephone wiring designed to exclusively serve a
Condominium Unit, no matter where such are located) , in a neat,
clean, safe, sanitary, attractive and orderly condition at all
times . Each Owner shall keep his respective Exclusive Use
Corporation Property in a neat and clean condition in accordance
with the requirements of this Declaration and the Corporation Rules
and Regulations . Without limiting the generality of the foregoing,
and by way of example only, and except as may otherwise be provided
in this Declaration (including Section 1 above) regarding the
Corporation' s maintenance obligations, every Owner shall :
(a) Paint, maintain, repair, replace, restore, de-
corate, tile, finish, plaster, and/or landscape or cause to so
maintained, repaired, replaced, restored, decorated, tiled,
50018.154-24590.FCM 051816 -9 4-
finished, plaster, and/or landscaped (as the case may be) the
following:
(1) The interior surfaces of the walls,
ceilings, and floors of his Condominium Unit . However, no
bearing walls, ceilings, slab, floors or other structural
or utility bearing portions of the buildings housing the
Condominium Units shall be pierced or otherwise altered
or repaired, without the prior written approval of the
plans for the alteration or repair by the Architectural
Review Committee, which may approve or disapprove such in
its sole and absolute discretion. Each Owner shall have
the right to substitute new finished surfaces in place of
those existing on the ceiling, floors, walls and doors of
his or her Condominium Unit as purchased from Declarant;
however, hard floor surfaces shall not be installed in
areas in which the installation of such hard surface
floor covering would increase the level of noise heard in
any Condominium Unit, unless the installation of such
hard surfaces has been approved by the Architectural
Review Committee.
(2) Each Owner of a Condominium shall be
responsible for the maintenance and repair of :
i) The windows and the interior surfac-
es of doors enclosing the Condominium Unit, includ-
ing the metal frames, tracks and exterior screens
of glass doors and windows; provided, however:
(A) The Corporation may contract for the
replacement of windows, in which event the
Owner will reimburse the Corporation for its
costs so incurred;
(3) Except as may otherwise be provided above,
all window glass, screens, if any, and all interior doors
and the structural integrity of the exterior doors and
garage doors (including locks, latches, weatherstripping,
and thresholds) ;
(4) All interior lighting fixtures, all
exterior light bulbs controlled by a switch inside the
Condominium Unit and all interior plumbing fixtures,
including bathtubs, shower stalls, toilets, and sinks,
heating, cooling, cable television, water heating systems
(a tankless water heater may be provided) , heating
systems, and electric equipment/system, and other
utilities which are located within or which exclusively
serve said Owner' s Condominium Unit (e.g. , sewer lines
from within the Residence up to the point of connection
to the private common sewer lines in the Project, water
50018.154-24590.FCM 051816 -9 5-
lines from within the Residence up to the water meter,
natural gas lines from within the Residence up to the gas
meter, etc. ) . In the event it is necessary to access the
Corporation Property to maintain, repair, and/or replace
any utility laterals or lines servicing a Condominium
(e.g. , water or sewer lateral, etc . ) , such Owner shall
comply with all requirements and restrictions imposed by
the Board in order to complete such work (e .g. ,
requirements that the contractor be appropriately
licensed, maintain and provide the Corporation with
written evidence of insurance coverage on which the
Corporation is named as an additional insured, obtain the
Corporation' s written permission to access the roof or
other Corporation Property, and/or execute an indemnity
agreement in favor of the Corporation) ;
(5) All internal and external telephone wiring
designed to serve his Condominium Unit;
(6) All kitchen appliances, forced air heating
units, the air conditioning unit, the hot water heater
(if applicable - a tankless water heater may be
provided) , and the garage door opener which are located
within or service his Condominium Unit;
(7) Routine maintenance of any Exclusive Use
Corporation Property appurtenant to the Condominium Unit
(e.g. , sweeping and cleaning, replacing light bulbs,
periodically cleaning drainage devices in patio, yard,
deck and/or porch area, etc . ) ;
(8) The Exclusive Use Corporation Property,
excluding those portions maintained by the Corporation,
but including the structure of the patio and porch, any
air conditioning equipment and/or solar panels or
collectors exclusively serving the Owner' s Condominium,
and any landscaping located within any Exclusive Use
Corporation Property patio, yard, deck, or porch area.
Each Owner shall, within One Hundred Twenty (120) days
after the close of escrow for the original sale of the
Condominium to the Owner from Declarant (i . e. , the date
of recordation of the grant deed conveying the
Condominium from the Declarant to the Owner) , install the
landscaping or other Improvements in said Owner' s
Exclusive Use Corporation Property patio, yard, deck,
and/or patio area (if any) as approved by the
Architectural Review Committee;
(9) Each Owner acknowledges and understands
that portions of the utility lines that exclusively serve
the Owner' s Condominium Unit may be located within the
Corporation Property (e.ct. , sewer lateral, etc. ) ; the
50018.154-24590.FCM 051816 -9 6-
Owner may be required to disturb the Corporation Property
in order to access the utility lines that the Owner is
required to maintain or repair (e.g. , remove landscaping,
dig into the ground, etc. ) ; the Owner may not disturb the
Corporation Property without first obtaining the written
approval of the Corporation; and the Owner will be
required to restore the Corporation Property, at the
Owner' s sole cost and expense, upon the completion of the
maintenance and repair work (including, without
limitation, replacing landscaping, patching or slurry
sealing asphalt, etc. ) . In the event it is necessary to
access the Corporation Property to maintain, repair,
and/or replace any utility laterals or lines exclusively
serving a Condominium (e.g. , sewer lateral, etc. ) or, and
any landscaping located within any Exclusive Use
Corporation Property (e.g. , air conditioning unit, etc. ) ,
such Owner shall comply with all conditions, requirements
and restrictions imposed by the Board in order to access
the Corporation Property and complete such work (e.g. ,
requirements that the contractor be appropriately
licensed, maintain and provide the Corporation with
written evidence of insurance coverage on which the
Corporation is named as an additional insured, obtain the
Corporation's written permission to access the
Corporation Property, and/or execute an indemnity
agreement in favor of the Corporation, etc. ) ; and
(10) Each Owner shall maintain everything that
the Owner is obligated to maintain in a clean, sanitary
and attractive condition and in conformance with any
Maintenance Guidelines and Maintenance Recommendations,
as well as product manufacturer recommendations and
commonly accepted maintenance practices.
(b) In the event any Owner shall fail to perform
his/her maintenance obligations as set forth herein, the
Corporation shall have the right, but not the duty, to cause
such maintenance to be performed. If the Board elects to cause
such maintenance work to be performed, the cost thereof
(including a reasonable administrative fee) shall be assessed
against said Owner as a Compliance Assessment . Each Owner
shall reimburse the Corporation for those costs incurred which
result from the Condominium occupants' excessive or neglectful
use of the Exclusive Use Corporation Property or other
portions of the Project .
Section 6 . Damage and Destruction Affecting a Condomin-
ium.
(a) Duty to Rebuild. In the event any Condominium
is damaged or destroyed by fire or other casualty, it shall be
the duty of the Owner to repair or reconstruct the Condominium
50018.154-24590.FCM 051816 -9 7
(e .g. , including, without limitation, all interior walls,
lighting fixtures, plumbing fixtures, cabinets, furniture and
improvements therein, together with restoration and repair of
all interior paint, wall coverings and floor coverings) , at
the individual expense of the Owner of the Condominium Unit,
unless covered by insurance maintained by the Corporation for
the benefit of such Owner as determined by the Board in a
manner which will restore it to its condition and appearance
immediately prior in time to such damage or destruction, or as
otherwise approved by the Architectural Review Committee.
Notwithstanding the foregoing, the structural elements thereof
shall be restored as determined by the Board. The affected
Owner shall be obligated to proceed with all due diligence
hereunder, and shall promptly commence -reconstruction within
a reasonable time after the damage occurs, and shall complete
such reconstruction as soon as reasonably possible thereafter.
(b) Approval of Restoration Plans; Design and
Variance. In connection with the restoration and repair of
any Condominium, the Owner thereof may apply for approval to
the Architectural Review Committee to reconstruct and rebuild
in a manner which will provide for an exterior appearance and
design different from that which existed prior to the date of
the casualty. Application for such approval shall be made in
writing, together with full and complete plans and specifica-
tions, working drawings and elevations showing the proposed
reconstructions and the end result thereof . The Architectural
Review Committee shall grant such approval only if the design
proposed by the Owner would result in a finished Condominium
in harmony of exterior design with the other Condominiums in
the Project . Failure of the Architectural Review Committee to
act within sixty (60) days after receipt of such a request in
writing, coupled with full and complete plans and specifi-
cations, drawings and elevations shall constitute approval
thereof . The Owner shall also obtain approval from the City
of the proposed Condominium.
Section 7 . Levy of Compliance Assessments. In the
event the Corporation shall incur any costs or expenses due to the
failure of any Owner to perform his maintenance obligations as set
forth herein, or in order to repair any damage to the Corporation
Property due to any negligent acts or omissions or willful
misconduct on the part of an Owner, or any member of his family,
his guests, invitees, tenants or lessees, or their guests or
invitees, the Corporation shall have the right, but not the duty,
to cause such maintenance or repairs to be performed. If the Board
elects to cause such maintenance or repair work to be performed,
after Notice and Hearing as provided in the By-Laws, the cost
thereof shall be assessed against said Owner as a Compliance
Assessment .
50018.154-24590.FCM 051816 -9 8
Section 8 . Maintenance of Public Utilities . Nothing
contained herein shall require or obligate the Corporation to
maintain, replace or restore the underground facilities or public
utilities which are located within easements in the Common Property
owned by such public utilities . However, the Corporation shall take
such steps as are necessary or convenient to ensure that such
facilities are properly maintained, replaced or restored by such
public utilities .
ARTICLE XI
ENVIRONMENTAL AND OTHER DISCLOSURES
AND REQUIREMENTS
Section 1 . Environmental Requirements .
(a) Duties and Obligations of the Owners . To
reduce and/or eliminate negative effects on the environment,
and to comply with all Best Management Practices and NPDES
requirements set forth in the Water Quality Management Plans
approved for the Project, all Owners shall :
(1) Dispose of waste materials properly,
eliminate littering, and participate in the City' s
recycling program;
(2) Use fertilizers, herbicides, pesticides
and other harmful chemicals properly and in compliance
with all applicable laws;
(3) Take all necessary steps to insure that NO
oil, antifreeze, paints and similar chemicals enter the
storm drain systems;
(4) Take all necessary steps to prevent
excessive erosion and sedimentation; and
(5) Use proper landscaping and irrigation
methods to eliminate non-storm water runoff to avoid
adverse impacts on the environment .
(b) Duties and Obligations of the Corporation.
Notwithstanding anything to the contrary set forth herein, the
Corporation shall :
(1) Contract with a contractor to perform the
following activities, subject to the following limita-
tions, periodically to minimize the pollution of storm
drain water:
50018.154-24590.FCM 051816 -9 9
i) Either mechanically or manually
remove all large size urban debris from catch
basins and storm drains periodically (i . e. , at
least twice a year, once immediately before October
15th, the beginning of the rainy season, and once
in January, and at such additional times as may be
required by the City Engineer) ;
ii) If applicable, maintain stenciling
on storm drains saying "NO DUMPING, DRAINS TO
OCEAN, CREEK, CHANNEL, " as appropriate;
iii) Minimize irrigation runoff by using
controllers to provide several short watering
cycles for any landscaping located in the
Corporation Property (excluding landscaping in
Exclusive Use Corporation Property areas that the
Owners are required to maintain) ;
iv) Immediately correct any irrigation
design or maintenance deficiencies which cause
excessive runoff; and
v) Follow all fertilizer applications
with light irrigation to permit fertilizer to soak
into the landscaped areas in the Corporation
Property (excluding landscaped areas in Exclusive
Use Corporation Property areas that the Owners are
required to maintain) .
(2) Be responsible for the maintenance and
repair (except to the extent such maintenance or repair
obligation has been accepted by a public agency) of the
following:
i) All private sewer systems located
within the Project (i .e. , as depicted on Exhibit
"E" attached hereto) ;
ii) All storm drain facilities located
within the Project and those storm drain lines and
facilities depicted and/or described on Exhibit "D"
attached hereto, excluding any other facilities
which drain public streets, if any; and
iii) All other property or facilities,
the maintenance of which is required of the Corpo-
ration hereunder, including, without limitation,
the Project vehicular drives and any sidewalks
within the Project .
50018.154-24590.FCM 051816 -1 0 0-
The Corporation and all Owners, as applicable, shall comply
with all NPDES requirements and enforce all applicable structural
and non-structural Best Management Practices as outlined and
defined in the specific City-approved Water Quality Management Plan
for the Project in order to prevent the discharge of pollutants and
contaminants into the public water storm drain system.
ARTICLE XII
ARCHITECTURAL REVIEW - APPROVAL
Section 1 . Exemptions From Architectural Review. Except
as otherwise provided herein or approved by the Board, all
Improvements shall be subject to architectural approval by the
Corporation in accordance with the provisions of this Declaration.
Notwithstanding the foregoing, Declarant shall be exempt from
compliance with any of the provisions of this Article as they may
relate to the original construction and development of the Project
by Declarant in accordance with the plans approved by the City;
provided, however, if Declarant shall desire to construct any Im-
provements to the exterior of a building containing a Condominium
Unit (e .g. , windows, doors, the Exclusive Use Corporation Property
areas appurtenant to the Condominium Unit, etc. ) after such
Condominium Unit has been completed and approved by the City,
Declarant shall obtain approval for such Improvements from the
City, and provided further, if Declarant shall retain a Condominium
for personal use, any Improvements to such Condominium shall be
subject to architectural approval pursuant to this Article.
Section 2 . Architectural Review. Except for the pur-
poses of proper maintenance and repair, and except as otherwise
permitted hereunder, no person shall build, construct, erect or
install any Improvement, or modify the exterior appearance of his
Condominium Unit or Exclusive Use Corporation Property, until all
conditions which may be imposed by the City have been satisfied and
until any and all plans and specifications required pursuant to
this Article shall have been submitted to and approved in writing
by the Architectural Review Committee . For the purposes of this
Section, the term "exterior" shall mean any outside wall, outside
surface, roof, outside door, patio, or other outside structure
which is visible to others in the Project and/or to the public .
Section 3 . Architectural Review Committee . The Archi-
tectural Review Committee is hereby authorized with the rights and
powers set forth in this Article. Said Committee may consist of
three (3) members, and each initial member shall serve until the
first election of the Board. In the event of the failure or
inability of any member of the Architectural Review Committee to
act, the remaining members shall designate a successor who shall
serve for the remainder of the term of the member he replaces . The
Declarant shall appoint all of the original members of the
50018.154-24590.FCM 051816 -1 0 1-
Architectural Review Committee, and replacements thereto. Further,
Declarant reserves the power to appoint a majority of the members
of the Architectural Review Committee until ninety percent (90%) of
the Condominiums in the proposed development of the Project have
been sold and escrows closed or until the fifth (5th) anniversary
of the issuance of the Final Subdivision Public Report for the
Project . After one (1) year from the date of the issuance of the
Final Subdivision Public Report for the Project, the Board shall
have the power to appoint one (1) member to the Architectural
Review Committee until ninety percent (90%) of the Condominium
Units in the Project have been sold, or until the fifth anniversary
date of the first close of escrow for the sale of a Condominium
Unit pursuant to the Final Subdivision Public Report for the Proj -
ect, whichever first occurs . Thereafter, the Board shall have the
power to appoint all of the members of the Architectural Review
Committee. All members appointed to the Architectural Review
Committee by the Board shall be from the membership of the Corpora-
tion. Members appointed to the Architectural Review Committee by
the Declarant, however, need not be members of the Corporation. No
member of the Architectural Review Committee shall be liable to any
person for his decisions or failure to act in making decisions as
a member of the Architectural Review Committee. Declarant may, in
its discretion and at any time, assign to the Corporation by
written assignment its powers of removal and appointment with
respect to the Architectural Review Committee, subject to such
terms and conditions regarding the exercise thereof as Declarant
may impose.
Section 4 . Meetings of the Architectural Review Commit-
tee. The Architectural Review Committee shall meet, from time to
time, as necessary to perform its duties hereunder. The Architec-
tural Review Committee may, by a majority vote of the members
thereof and the Board, delegate any or all of the Committee' s
rights and responsibilities hereunder to one (1) or more duly
licensed architects, who shall have full authority to act on behalf
of the Architectural Review Committee on all matters so delegated.
Section 5 . Architectural Approval - Review of Plans and
Specifications . The Architectural Review Committee shall have the
right and duty to promulgate reasonable standards against which to
examine any request made pursuant to this Article, in order to
ensure that the proposed plans are in conformance with and are
harmonious to the exterior design and existing materials of the
Condominium Units in the Project . The Architectural Review Com-
mittee shall consider and act upon any and all plans and specifi-
cations submitted for its approval under this Declaration, and
perform such other duties as, from time to time, shall be assigned
to it by the Board, including the inspection of construction and
progress to ensure its conformance with the plans approved by the
Architectural Review Committee. No construction, alteration,
grading, addition, excavation, demolition, modification, decora-
tion, redecoration or reconstruction of an Improvement shall be
50018.154-24590.FCM 051816 -1 0 2-
commenced or maintained by any Owner until the plans and specifi-
cations therefor showing the nature, kind, shape, height , width,
-
color, materials and location of the same shall have been submitted
to the Architectural Review Committee and approved in writing by
the Architectural Review Committee. The initial address for
submission of such plans and specifications shall be provided to
the Owners by the Board. The Architectural Review Committee shall
approve the plans and specifications submitted for its approval
only if it deems that : (a) the construction, alterations or
additions contemplated thereby and the locations indicated will not
be detrimental to the appearance of the surrounding area of the
Project as a whole; (b) the appearance of any structure affected
thereby will be in harmony with surrounding structures; (c) the
construction thereof will not detract from the beauty, wholesome-
ness and attractiveness of the Corporation Property, or the
enjoyment thereof by the Owners; (d) the upkeep and maintenance
thereof will not become a burden on the Corporation; and (e) the
proposed Improvements are in substantial compliance with the
adopted Architectural Guidelines, if any. In addition to the
foregoing, in its review of plans and specifications, the Archi-
tectural Review Committee may take into consideration, among other
things, the scale of site dimensions; conformity and harmony of
external design with neighboring Improvements ; effect of location
and use of Improvements (including landscaping) on neighboring
Condominium Units; relation of topography, grade and finish grade
elevation to neighboring Condominium Units; proper facing of all
elevations; aesthetic beauty; and conformity of the plans and
specifications to the purpose and general plan and intent of the
Protective Covenants of this Declaration. The Architectural Review
Committee may withhold approval of the plans and specifications for
any proposed Improvement because of noncompliance with any of the
specific Protective Covenants set forth in this Declaration;
because of the dissatisfaction of the Architectural Review
Committee with the proposed nature, kind, plan, design, shape,
height, dimensions, proportions, architectural style, color, finish
or materials to be used therein, the pitch or type of any proposed
roof, or the size, type or location of any proposed trees or the
landscaping to be planted; or because of the dissatisfaction of the
Architectural Review Committee with any aspect of the proposed
Improvement which could cause the proposed Improvement to be
inappropriate, inharmonious or out-of-keeping with the general plan
of improvement for the Project, or with the Improvements on or
topography of the surrounding property.
The Architectural Review Committee may condition its
approval of proposals or plans and specifications for any Improve-
ment : (a) on such changes therein as it deems appropriate, (b) upon
the agreement by the person submitting the same to grant appropri-
ate easements to the Corporation for the maintenance of the
Improvement, or (c) upon the agreement of the person submitting the
same to reimburse the Corporation for the cost of such maintenance,
or all of the above, and may require submission of additional plans
50018.154-24590.FCM 051816 -1 0 3-
and specifications or other information prior to approving or
disapproving the submission.
The Architectural Review Committee may also issue rules
or guidelines setting forth procedures for submission of plans for
approval, requiring a payment of a fee to the Corporation to
accompany each submission of plans and specifications, or ad-
ditional factors which it will take into consideration in reviewing
submissions .
The Architectural Review Committee may require such
detail in plans and specifications submitted for its review as it
deems proper, including, without limitation, floor plans, site
plans, drainage plans, elevation drawings, landscape plans and
description or samples of exterior material and colors .
Each Owner acknowledges and understands that he or she
has absolutely no right or ability to modify the condominium
buildings in any manner, unless otherwise provided by the Board.
Section 6 . Decisions of the Architectural Review Com-
mittee. Until receipt by the Architectural Review Committee of any
required plans and specifications, and such other information as
may be required in Section 5 above, the Architectural Review
Committee may postpone review of any plans submitted for approval .
Decisions of the Architectural Review Committee and the reasons
therefor should be transmitted by the Architectural Review
Committee to the applicant, at the address set forth in the ap-
plication for approval, within forty-five (45) days after receipt
by the Architectural Review Committee of all plans, specifications
and materials required. Any application submitted pursuant to the
provisions of Section 5 above shall be deemed approved, unless
written disapproval or a request for additional information or
materials by the Architectural Review Committee shall have been
transmitted to the applicant within forty-five (45) days after the
receipt by the Architectural Review Committee of all required
materials.
Section 7 . Submittal to Public Agencies - Right of
Architectural Review Committee to Review. Upon obtaining the
written approval of the Architectural Review Committee for the
proposed Improvement, if such Improvement requires a building
permit, the Owner shall thereafter submit the plans and specifica-
tions to all appropriate Local Governmental Agencies in accordance
with their respective requirements . In the event that all
approvals by the Local Governmental Agencies necessary for the
issuance of a building permit are not obtained within six (6)
months after the date of approval by the Architectural Review
Committee, the Architectural Review Committee shall have the right,
but not the obligation, to review all previously approved plans and
specifications . In addition, in the event that the governmental
agencies require modifications to the plans and specifications
50018.154-24590.FCM 051816 -10 4-
previously approved by the Architectural Review Committee, the
Owner shall submit to the Architectural Review Committee all
modifications to the plans and specifications previously approved
by the Architectural Review Committee, which shall have the right
to review and to impose further conditions on any such
modifications .
Section 8 . Conflicts Between Governmental Agencies and
Architectural Review Committee . In the event of any conflict in
the conditions of approval of any proposed Improvement imposed by
the Local Governmental Agencies and the Architectural Review
Committee, the more restrictive of such conditions shall be
controlling. Further, nothing herein shall limit the Architectural
Review Committee from imposing conditions of approval of any
proposed Improvements which are more restrictive than conditions
that may be imposed by the Local Governmental Agencies .
Section 9 . No Waiver of Future Approvals . The approval
of the Architectural Review Committee to any submissions for any
work done, or proposed to be done, or in connection with any other
matter requiring the approval or consent of the Architectural
Review Committee, shall not be deemed to constitute a waiver of any
right to withhold approval or consent of any similar proposals,
plans and specifications, drawings or other matters subsequently or
additionally submitted for approval .
Section 10 . Compensation of Members . The members of the
Architectural Review Committee shall receive no compensation for
services rendered, other than reimbursement by the Corporation,
pursuant to Board approval, for expenses incurred in the perfor-
mance of such members' duties hereunder. This Section shall not be
interpreted or construed to prohibit the Corporation from compen-
sating any duly licensed Architect who has been delegated rights
and duties as provided in this Article .
Section 11. Variances . Where circumstances such as to-
pography, location of buildings, location of landscaping or other
matters require, the Architectural Review Committee, by the vote or
written assent of a majority of the members thereof and the Board,
may allow reasonable variances as to any of the Protective
Covenants contained in this Declaration or provisions under the
rules and regulations promulgated by the Architectural Review
Committee, on such terms and conditions as it shall require . The
granting of such a variance shall not operate to waive any of the
terms and provisions of this Declaration for any purpose, except as
.to the particular Condominium and particular provision hereof
covered by the variance, nor shall it affect in any way the Owner' s
obligation to comply with all governmental laws and regulations
affecting the Owner' s use of his Condominium, including, but not
limited to, zoning ordinances, lot setback lines or requirements
imposed by the City or other governmental authority.
50018.154-24590.FCM 051816 -1 0 5-
Section 12 . Inspection of Work. Upon consent of the
Owner, which consent shall not be unreasonably withheld, any member
or authorized representative of the Architectural Review Committee
may, at any reasonable hour and upon reasonable notice, enter and
inspect any Condominium which has been the subject matter of an
approval of a submission for an Improvement to his Condominium.
Such entry shall be made with as little inconvenience to the Owner
as reasonably possible, and any damage caused thereby shall be re-
paired by the Corporation. If the Architectural Review Committee
finds that such work was not done in substantial compliance with
the approved plans and specifications, it shall notify the Owner in
writing of such noncompliance, specifying the particulars of
noncompliance and shall require the Owner to remedy the same within
thirty (30) days from the date of notification of such noncompli-
ance . If a noncompliance exists, the Board, after Notice and
Hearing, may levy a Compliance Assessment against such Owner for
the costs of removing or remedying such noncompliance .
Section 13 . Non-Liability of Architectural Review Com-
mittee Members . Neither Declarant, the Corporation, the Board or
the Architectural Review Committee, or the members or designated
representatives thereof, shall be liable for damages to any Owner
submitting plans or specifications to them for approval, or to any
Owner in the Project affected by this Declaration by reason of
mistake in judgment, negligence or nonfeasance, unless due to
willful misconduct or bad faith of the Architectural Review Com-
mittee. The Architectural Review Committee' s approval or disap-
proval of a submission shall be based solely on the considerations
set forth in this Article, and in such rules and regulations as may
be promulgated by the Architectural Review Committee, and the
Architectural Review Committee shall not be responsible for
reviewing, nor shall its approval of any plan or design be deemed
approval of, any plans or design from the standpoint of structural
safety and conformance with building or other codes or requests of
any Local Governmental Agency.
Section 14 . Appeal . In the event plans and specifica-
tions submitted to the Architectural Review Committee are disap-
proved, the party making such submission may appeal in writing to
the Board. The written request must be received by the Board not
more than thirty (30) days following the final decision of the
Architectural Review Committee. The Board may request the written
recommendations of the Architectural Review Committee for review.
Within sixty (60) days following receipt of the request for appeal,
the Board shall consider the appeal at an open meeting and render
its written decision. The failure by the Board to render a decision
within said sixty (60) day period shall be deemed a decision in
favor of the party making such submission.
Section 15 . Approval of City. Each Owner is solely
responsible for ensuring that all plans and specifications
submitted by such Owner to the Architectural Review Committee
50018.154-24590.FCM 051816 -1 0 6-
comply with, and do not violate, any applicable provision of law,
including, without limitation, the Fair Employment and Housing Act
(California Government Code Section 12900 et s_ ee . ) , the City' s
Municipal Code, all applicable building and construction codes, and
all other applicable laws, regulations, and ordinances governing
land use and public safety. Approval of any proposed or existing
Improvement by the Architectural Review Committee or the Board, or
the completion of any Improvement, shall not be construed to
warrant or represent in any way that the Improvement was approved
by or complies with the minimum standards of the City or any other
provision of law. Similarly, approval of any proposed or existing
Improvement by the City shall not be construed to constitute
approval of such Improvement by the Architectural Review Committee
or the Board.
ARTICLE XIII
DAMAGE OR DESTRUCTION TO
THE CORPORATION PROPERTY
Section 1 . Election to Restore Corporation Property.
Except as otherwise provided in Section 2 hereinbelow, damage to or
destruction of all or any portion of the Corporation Property shall
be handled in the following manner:
(a) In the event of damage to or destruction of the
Corporation Property and the insurance proceeds are sufficient
to effect total restoration, the Corporation shall, as
promptly as is practical, cause the Corporation Property to be
repaired and reconstructed in a good and workmanlike manner to
its condition prior to such damage or destruction.
(b) If the insurance proceeds available are at
least ninety percent (90%) of the estimated cost of total
repair and reconstruction to the Corporation Property, the
Corporation shall, as promptly as practical,- cause such
Corporation Property to be repaired and reconstructed in a
good and workmanlike manner to its condition prior to the
damage or destruction, and the difference between the
insurance proceeds and the actual cost shall be levied by the
Corporation as a Special Assessment against each Condominium
on an equal basis .
(c) If the insurance proceeds available are less
than ninety percent (90%) of the estimated cost of total
repair and reconstruction to the Corporation Property, the
Owners shall, by the written consent or vote of a majority of
the Owners, determine whether (1) to restore the Corporation
Property as promptly as practical to its condition prior to
the damage or destruction, and to raise the necessary funds
over and above the insurance proceeds available by levying
50018.154-24590.FCM 051816 -1 0 7-
assessments against each Condominium on an equal basis ; or (2)
to restore the Corporation Property in a way which utilizes
all available proceeds and an additional amount not in excess
of ten percent (100) of the estimated cost of total recon-
struction and repair to the Corporation Property, and which is
assessable as provided above to all Condominiums, but which is
less expensive than restoring the Corporation Property to its
condition prior to the damage or destruction.
Section 2 . Election Not to Restore Corporation
Property.
(a) Notwithstanding the provisions set forth in
Section 1 hereinabove, in the event sixty-seven percent (670)
of the Owners, other than the Declarant, and sixty-seven
percent (670) of the first Mortgagees (based upon one [11 vote
for each first Mortgage owned) have given their prior written
approval, the Owners may elect to not rebuild or restore the
Corporation Property and to disburse the available insurance
proceeds to the general fund to the Corporation.
(b) In the event the owners shall have so voted not
to rebuild the Corporation Property, the Corporation Property
shall be cleared and landscaped and the cost thereof shall be
paid for out of the available insurance proceeds prior to
their distribution to the general fund of the Corporation.
(c) In the event the Owners shall have so voted not
to rebuild the Corporation Property, unless the City shall
agree to the contrary, it shall be the obligation of the
Corporation and each of the Owners to rebuild the private
vehicular drive, utilities and open spaces, which comprise the
Corporation Property, if any, at least to the extent said
streets, utilities and open spaces were accepted initially by
the City in lieu of payment of fees due pursuant to law.
Section 3 . Excess Insurance Proceeds . All insurance
proceeds shall be payable to the Corporation for the benefit of the
Owners and their respective Mortgagees . In the event any excess
insurance proceeds remain after restoring the destroyed Corporation
Property pursuant to this Article, the Board of Directors shall
retain such sums in the general fund of the Corporation. Any
distribution of funds in connection with the termination of the
Project shall be allocated equally among all of the Condominiums in
the Project . Any such distribution shall be subject to the prior
rights of Mortgagees .
50018.154-24590.FCM 051816 -1 0 8-
ARTICLE XIV
CONDEMNATION
Section 1 . Distribution of Awards. Subject to the limi-
tations set forth in the Article herein entitled "Mortgagee Protec-
tion, " a condemnation award affecting all or any portion of the
Corporation Property of the Project which is not apportioned among
the Owners by court judgment shall be distributed to the Corpora-
tion and deposited in the general fund of the Corporation.
Section 2 . Board of Directors as Attorney-in-Fact . All
Owners, to the extent applicable, if at all, hereby appoint the
Board of the Corporation as their special attorney-in-fact to
handle the negotiations, settlements and agreements pertaining to
any condemnation affecting only the Corporation Property. The
special power of attorney shall not apply to the Secretary of the
Department of Veterans Affairs, an Officer of the United States of
America . No Owner may participate as a party, or otherwise, in any
proceedings related to such condemnation.
ARTICLE XV
COVENANT AGAINST PARTITION
Section 1 . General Covenant Against Partition. Except
as otherwise provided in this, Section, the Common Area shall remain
undivided, and there shall be no judicial partitions thereof .
Nothing herein shall be deemed to prevent partition of a co-tenancy
in a Condominium.
Section 2 . Judicial Partition of the Project . The Owner
of a Condominium in the Project may maintain a partition action as
to the entire Project as if the Owners of all the Condominiums in
the Project were tenants-in-common in the entire Project in the
same proportion as their interests in the Common Area. The court
shall order partition under this Article only by sale of the entire
Project and only upon the showing of one (1) of the following:
(a) More than three (3) years before the filing of
the action, the Project was damaged or destroyed so that a
material part was rendered unfit for its prior use, and the
Project has not been rebuilt or repaired substantially to its
state prior to the damage or destruction;
(b) Three-fourths (3/4) or more of the Project is
destroyed or substantially damaged, and at least sixty-seven
percent (670) of the Owners (other than Declarant) and sixty-
seven percent (670) of the first Mortgagees (based upon one
50018.154-24590.FCM 051816 -1 0 9-
[1] vote for each first Mortgage owned) oppose repair or
restoration of the Project; or
(c) The Project has been in existence more than
fifty (50) years, is obsolete and uneconomical, and at least
sixty-seven percent (67a) of the Owners (other than Declarant)
and sixty-seven percent (670) of the first Mortgagees (based
upon one [1] vote for each first Mortgage owned) oppose repair
or restoration of the Project .
Section 3 . Board of Directors' Power of Sale in Event
of Judicial Partition. Declarant, for itself and on behalf of each
and every present and subsequent Owner of one (1) or more Condo-
miniums within the Project, hereby appoints the Board as its and
their attorney-in-fact to sell the entire Project for the benefit
of all of the Owners thereof when partition of the Project may be
had pursuant to this Declaration, which power shall : (a) be binding
upon all of the Owners, whether they assume the obligations of
these restrictions or not; (b) be exercisable by a vote of at least
seventy-five percent (755.) of the voting power of the Board; and
(c) be exercisable only after recordation of a certificate by the
Board, which shall provide that said power is properly exercisable
hereunder, and which certificate shall be conclusive evidence
thereof in favor of any person relying thereon in good faith;
provided, however, said power of attorney shall not apply to the
Secretary of the Department of Veterans Affairs, an Officer of the
United States of America.
ARTICLE XVI
INSURANCE
Section 1 . Insurance Coverage Required to be Maintained
by Corporation. The Corporation, acting by and through the Board,
shall obtain for the Corporation, and shall maintain and pay the
premiums for the following insurance coverage :
(a) Casualty and Fire Insurance . A master policy or
policies of casualty and fire insurance, with an extended
coverage endorsement in an amount equal to as near as possible
one hundred percent (1000) of the current replacement cost
(without deduction for depreciation or co-insurance) of the
Corporation Property, together with all Improvements located
therein (except Improvements made by an Owner to the Exclusive
Use Corporation Property) and including those portions of the
Condominium Units consisting of fixtures, built-in or set-in
appliances, cabinets and initial basic floor coverings as
initially installed thereof in accordance with the original
plans and specifications for the Project (excluding upgrades
to any of the foregoing) . Alternatively, if approved by the
Board, a master policy or policies of casualty and fire
50018.154-24590.FCM 051816 -1 1 0-
insurance, with an extended coverage endorsement in an amount
equal to as near as possible one hundred percent (100%) of the
current replacement cost (without deduction for depreciation
or co-insurance of the Corporation Property, together with all
Improvements located therein (except Improvements made by an
Owner to the Exclusive Use Corporation Property) , but
specifically excluding interior Condominium Unit coverage
(including, without limitation, interior walls and floor
coverings) ; in the event the Board elects to obtain such
master policy(ies) , each Owner shall procure and maintain, at
the Owner' s sole cost and expense, an insurance policy of
casualty and fire insurance covering the interior of his
Condominium Unit, including replacement of interior
improvements and betterment coverage to insure improvements
that the borrower may have made to the interior of the
Condominium Unit (e.g. , an HO-6 policy) sufficient, as
reasonably determined by the insurer, to repair the
Condominium Unit to its condition which existed immediately
prior to a loss claim event . Said policies shall be primary
and maintained for the benefit of the Corporation, the Owners
and the Mortgagees, as their interests shall appear, and shall
waive the right of subrogation against Owners, if obtainable.
If reasonably obtainable, the deductible shall be the lesser
of Ten Thousand Dollars ($10, 000) or one percent (1%) of the
policy face amount . Such policy must be written by an insur-
ance carrier that meets the requirements of FNMA, FHLMC,
and/or VA/FHA as applicable. The coverage does not need to
include land, foundations, excavations, or other items
normally excluded from such coverage. Such policy or policies
must contain, if required and if obtainable:
(1) An Agreed Amount and Inflation Guard
Endorsement;
(2) Construction Code Endorsements (such as
Demolition Cost Endorsement) ;
(3) Contingent Liability From Operation of
Building Laws Endorsement;
(4) Increased Construction Endorsement if
there is a construction code provision which would become
operative and require changes to undamaged portions of
the Corporation Property; and
(5) Any other special Condominium Endorsements
that may be available or required.
(b) General Liability Insurance. A policy or poli-
cies of comprehensive general liability insurance (with cross-
liability endorsement, if obtainable) insuring the Corpora-
tion, the Board, the Owners, the City and the Declarant, and
50018.154-24590.FCM 051816 - -�-�--
the agents and employees of each of the foregoing, against any
liability to the public or to any Owner, his family, tenants,
lessees and their respective guests and invitees, arising from
or incident to the ownership, occupation, use, maintenance
and/or repair of the Corporation Property, and from lawsuits
related to employment contracts in which the Corporation is a
party. The limits of liability under this Section shall be set
by the Board and shall be reviewed at least annually by the
Board, and increased or decreased at the discretion of the
Board; provided, however, that said limits shall not be less
than Two Million Dollars ($2 , 000, 000 . 00) for bodily injury,
including deaths of persons and property damage arising out of
a single occurrence (unless approved by a vote of sixty-seven
percent [670] of the Members) ; provided further, if FHLMC,
FNMA, and/or VA/FHA participate in the financing of Condomini-
ums in the Project, said limits shall not be less than the
minimum limits required under the then current FHLMC, FNMA,
and/or VA/FHA regulations .
(c) Worker' s Compensation Insurance. Worker' s com-
pensation insurance to the extent necessary to comply with any
applicable laws .
(d) Fidelity Bonds . Officers' and Directors' errors
and omissions insurance, and fidelity bonds naming all persons
signing checks or otherwise possessing fiscal responsibilities
on behalf of the Corporation, including, but not limited to,
officers, directors, the Board, trustees and employees of the
Corporation, and officers, employees and agents of any
management company employed by the Corporation who handle or
are responsible for the administration of Corporation funds,
if obtainable . Such coverage shall be in an amount deemed
reasonably appropriate by the Corporation, but shall not be
less than the estimated maximum funds in custody of the
Corporation (or its management company) , or twenty-five
percent (250) of the estimated annual operating expenses of
the Project, plus reserves, whichever is greater. In addition,
if the Corporation enters into an agreement for professional
management of the Project, the Corporation shall require such
company to submit evidence of its fidelity bond coverage to
the same extent as the Corporation' s coverage . The Corporation
shall be named as an additional obligee in the management
agent' s bond.
(e) Flood Insurance . If the Project is located
within a "Special Flood Hazard Area" designated on a Federal
Emergency Management Agency flood map, adequate flood insur-
ance under the National Flood Insurance Program on buildings
in the Project, which insurance coverage must protect the
interests of all Owners in their Condominium Units, as well as
the Corporation Property and satisfy the requirements set
forth in Section 10, below, of this Article .
5001B.154-24590.FCM 051816 -1 1 2-
(f) Liability. If the Board determines the coverage
is necessary and reasonably cost effective, it may obtain
coverage necessary to comply with Civil Code Section 5800,
e.g. , one (1) or more policies of insurance which include
coverage of at least Five Hundred Thousand Dollars
($500, 000 . 00) for (i) general liability for the Corporation
and (ii) individual liability of officers and Directors of the
Corporation for negligent acts or omissions in such capacity.
Section 2 . Optional Insurance Coverage That May Be
Obtained By Corporation. The Corporation, acting at its option and
by and through the Board, may purchase such other insurance as it
may deem necessary or appropriate, including, but not limited to,
officers and directors errors and omissions insurance, earthquake
insurance, and flood insurance (e.g. , if flood insurance is not
required because the Project is not located within a Special Flood
Hazard 'Area) .
Section 3 . Notice of Cancellation of Insurance
Maintained by Corporation. All policies of insurance (including
fidelity bonds) maintained by the Corporation, pursuant to this
Article, shall contain a provision that coverage under said
policies may not be canceled, terminated, allowed to expire by
their own terms or be substantially modified by any party without
at least thirty (30) days prior written notice to the Board and to
each Owner, and such first Mortgagees (or servicers) who are named
in the mortgage clause and/or have filed a written request with the
Corporation for such notice. A list of the Owners and such first
Mortgagees shall be made available by the Corporation to the
insurance carrier upon request .
Section 4 . Board' s Review of Insurance Coverage
Maintained by Corporation. The Board shall annually determine
whether the amounts and types of insurance coverage that it has
obtained pursuant to this Article shall provide adequate coverage
for the Project, based upon the then current construction costs,
insurance practices in the area in which the Project is located,
and all other factors which may indicate that either additional
insurance coverage or increased coverage under existing policies is
necessary or desirable to protect the interests of the Corporation,
the Owners and their respective Mortgagees . If the Board determines
that increased coverage or additional insurance is appropriate, it
shall obtain same.
Section 5 . Owners' Waiver and Release of Claims . As to
all policies of insurance maintained by the Corporation which will
not be voided or impaired thereby, each Owner hereby waives and
releases all claims against the Corporation, the Board and the
Declarant, and the agents and employees of each of the foregoing,
and all other Owners with respect to any loss covered by such
insurance, whether or not caused by the negligence of, or breach
50018.154-24590.FCM 051816 -1 1 3-
of, any agreement by said persons, but only to the extent of the
insurance proceeds received in compensation for such loss .
Section 6 . Corporation' s Rights and Obligations With
Respect to Premiums, Proceeds and Settlement . Insurance premiums
for all blanket insurance coverage and any other insurance coverage
which the Board has determined is necessary to protect the
interests of the Corporation, the Owners and their respective
Mortgagees, shall be a Common Expense to be included in the Regular
Assessments levied by the Corporation. All insurance proceeds paid
to the Corporation shall be disbursed as follows : (a) in the event
of any damage or destruction to the Corporation Property, such
proceeds shall be disbursed in accordance with the provisions of
the Article herein entitled "Damage or Destruction to the Corpora-
tion Property" ; and (b) in the event of any other loss, the
proceeds shall be disbursed as the Board shall deem appropriate,
subject to the limitations set forth in the Article herein entitled
"Mortgagee Protection. " The Corporation is hereby granted the
authority to negotiate loss settlements with the appropriate
insurance carriers . A majority of the Board must sign a loss claim
form and release form in connection with the settlement of a loss
claim, and such signatures shall be binding on the Corporation and
its Members .
Section 7 . Rights and Duties of Owners to Insure. Each
Owner is required to procure and maintain fire and casualty
insurance on his Condominium Unit and all Improvements therein and
on his personal property in amounts the Owner deems appropriate for
which the Corporation has not purchased insurance. When obtaining
such insurance coverage, the Owner may wish to provide his
insurance broker with a copy of the Article of this Declaration
entitled "Description of the Condominiums" and a copy of the
Corporation' s fire and casualty insurance policy, so that the
insurance broker can properly advise the Owner regarding the scope
and extent of insurance coverage desirable for the Owner. Nothing
in this Declaration shall preclude any Owner from carrying any
liability insurance or other insurance that the Owner considers
desirable; however, no Owner' s insurance policy may adversely
affect or diminish any coverage provided under the Corporation' s
insurance policies . If obtainable, any insurance carried by an
Owner shall contain a waiver of subrogation of claims against the
Declarant, the Corporation and the Board, and their agents and
employees, and all other Owners . If any loss intended to be covered
by insurance carried by the Corporation shall occur and the pro-
ceeds payable thereunder shall be reduced by reason of insurance
carried by any Owner, such Owner shall assign the proceeds of such
insurance carried by him to the Corporation to the extent of such
reduction for application by the Board to the same purposes as the
reduced proceeds are to be applied.
Section 8 . Trustee for Policies Maintained by
Corporation. The Corporation is hereby appointed and shall be
50018.154-24590.FCM 051816 -1 1 4-
deemed trustee for the interests of all insureds under the policies
of insurance maintained by the Corporation. All insurance proceeds
under such policies shall be paid to the Board, as trustees, and
the Board shall have full power to receive such funds on behalf of
the Corporation, the Owners and their respective Mortgagees, and to
deal therewith as provided for in this Declaration.
Section 9 . Mortgage Clause . All insurance policies
should have the "standard mortgage clause, " or equivalent en-
dorsement, providing that coverage of a Mortgagee under the in-
surance policy will not be adversely affected or diminished by an
act or neglect of the Mortgagor, which is commonly accepted by
private institutional mortgage investors in the area in which the
Project is located, unless such coverage is prohibited by ap-
plicable law. Mortgages owned by FNMA must name as a Mortgagee
either FNMA or the servicers for the Mortgages held by FNMA en-
cumbering the Condominiums . When a servicer is named as the Mort-
gagee, its name should be followed by the phrase "its successors
and assigns . " If the Mortgage is owned in whole by FHLMC, the name
of the servicer of the Mortgage followed by the phrase "its
successors and assigns, beneficiary" should be named as Mortgagee
instead of FHLMC. The mortgage clause should be endorsed to fully
protect FHLMC' s interests or the interest of FHLMC and the servicer
where applicable . If FHLMC must be named as Mortgagee, the
endorsement should show the servicer' s address in lieu of FHLMC' s
address . A mortgage clause in favor of Mortgagees holding Mort-
gages on Condominiums is not required on a policy insuring the
Corporation Property.
Section 10 . Compliance With Requirements of FHLMC, FNMA
and VA/FHA. Notwithstanding the provisions of this Article, the
Corporation shall obtain and maintain in effect such policies of
insurance meeting all requirements of FHLMC, FNMA, and/or VA/FHA
established by those entities for condominium projects for so long
as any of such agencies continue to be a Mortgagee, Owner, insurer
or guarantor of a Mortgage in the Project, except to the extent
such coverage is not available at a reasonable cost or has been
waived, in writing, by such agencies, including, without limita-
tion, the following requirements :
a. Each insurance company providing the
insurance coverage described in this Article shall
be a generally acceptable (i . e . , an insurance
carrier who can satisfy the qualifications for
insurance carriers set forth in the FNMA Conven-
tional Home Mortgage Selling Contract Supplement
and the FHLMC Sellers Guide) .
b. All insurance policies covering the
Corporation Property, or any portion thereof, shall
be held in the name of the Corporation for the
benefit of the Owners in the Project .
50018.154-24590.FCM 051816 -115-
c . All insurance policies shall provide
that a certificate of insurance shall be issued to
each Owner and Mortgagee upon request .
d. Notwithstanding any other provision
of this Declaration, there may be named as an
insured, on behalf of the Corporation, the
Corporation' s authorized representative, including
any trustee with whom such Corporation may enter
into any insurance trust agreement or any successor
to such trustee, who shall have exclusive authority
to negotiate losses under any policy providing such
property or liability insurance and to perform such
other functions as are necessary to accomplish this
purpose .
e . The casualty and fire insurance
policies required to be maintained by the Corpora-
tion shall also cover, in addition to all other
property described above, all building services
equipment and supplies and other personal property
belonging to the Corporation.
f . All fidelity bonds maintained by the
Corporation shall contain waivers by the issuer of
the bonds of all defenses based upon the exclusion
of persons serving without compensation from the
definition of "employees" or similar terms or
expressions . Notwithstanding any other provision
of the Declaration, in no event may the aggregate
amount of the fidelity bonds be less than a sum
equal to three (3) months aggregate monthly in-
stallments of the Regular Assessments levied on all
Condominiums plus reserve funds .
g. If the Project is located in an area
which has been officially identified by the Secre-
tary of the United States Department of Housing and
Urban Development as having special flood hazards
and for which flood insurance has been made avail-
able under the National Flood Insurance Program
( "NFIP" ) , the Corporation shall obtain and pay the
premiums upon, as a Common Expense, a "master" or
"blanket" policy of flood insurance on the build-
ings and any other property covered by the required
form of policy, in an amount deemed appropriate by
the Corporation, but not less than the following:
The lesser of: (a) the maximum coverage available
under the NFIP for all buildings and other insur-
able property within the Project to the extent that
such buildings and other insurable property are
within an area having special flood hazards and are
50018.154-24590.FCM 051816 -1 1 6-
maintained by the Corporation; or (b) 1000 of the
current replacement cost of all such buildings and
insurable property. Such policy shall be in a form
which meets the criteria set forth in the guide-
lines on the subject issued by the Federal Insur-
ance Administrator.
h. In the event the Project contains a
steam boiler, the casualty and fire insurance
policy(ies) to be maintained by the Corporation
shall provide coverage for loss or damages result-
ing from steam boiler equipment accidents in an
amount not less than $50, 000 per accident per
location (or such greater amount as deemed prudent
based on the nature of the Project) .
Section 11 . Required Waiver. All policies of hazard and
physical damage insurance may provide, only if available at a
reasonable cost to the Corporation as determined by the Board, in
its sole discretion, for waiver of the following rights, to the
extent that the respective insurers would have the rights without
such waivers :
(a) Any defense based on cc-insurance;
(b) Any right of set-off, counterclaim, apportionment,
proration or contribution by reason of other insurance not
carried by the Corporation;
(c) Any invalidity, other adverse effect or defense on
account of any breach of warranty or condition caused by the
Corporation, any Owner or any tenant of any Owner, or arising
from any act, neglect or omission of any named insured, or the
respective agents, contractors and employees of any insured;
(d) Any right of the insurer to repair, rebuild or
replace, and, in the event the Condominium is not repaired,
rebuilt or replaced following loss, any right to pay under the
insurance an amount less than the replacement value of the
improvements insured or the fair market value thereof;
(e) Notice of the assignment of any Owner of its interest
in the insurance by virtue of a conveyance of any Condominium;
and
(f) Any right to require any assignment of any Mortgage
to the insurer.
Section 12 . Annual Notification of Insurance . The
Corporation shall, upon issuance or renewal of insurance, but no
less than annually, notify its Members as to the amount and type of
insurance carried by the Corporation, and it shall accompany this
50018.154-24590.FCM 051816 -1 1 7-
notification with statements to the effect that the Corporation is
or is not insured to the levels specified by this Article, and that
if not so insured, Owners may be individually liable for the entire
amount of a judgment, and if the Corporation is insured to the
levels specified in Section 1 above, then Owners may be individual-
ly liable only for their proportional share of Assessments levied
to pay the amount of any judgment which exceeds the limits of the
Corporation' s insurance. The Corporation shall further prepare and
distribute to all its Members a summary of the Corporation' s
insurance coverage pursuant to Section 5300 of the California Civil
Code.
ARTICLE XVII
MORTGAGEE PROTECTION
Section 1 . Mortgagee Protection Provisions . Notwith-
standing any other provisions in this Declaration to the contrary,
in order to induce FHLMC, FNMA, and VA/FHA and other lenders and
investors, to participate in the financing of the sale of Condo-
miniums in the Project, the following provisions contained within
this Article are added hereto, and to the extent these added
provisions conflict with any other provisions in this Declaration,
these added provisions shall control . The Declaration, the Articles
and the By-Laws for the Corporation are hereinafter collectively
referred to in this Article as the "constituent documents . " As
used herein, an "Eligible Mortgage Holder" shall mean and refer to
the holder, insurer or guarantor of a first Mortgage on a Condomin-
ium who has filed with the Corporation a written request for notice
of certain information as provided herein. An Eligible Mortgage
Holder must send a written request for such information to the
Corporation, stating its name and address and the number or address
of the Condominium Unit on which it has (or insures or guarantees)
the Mortgage.
(a) The right of an Owner to sell, transfer or
otherwise convey his Condominium shall not be subject to any
right of first refusal or any similar restriction in favor of
the Corporation;
(b) The lien of the Assessments provided for herein
shall be subordinate to the lien of any first Mortgage now or
hereafter recorded upon any Condominium subject to the provi-
sions herein. The sale or transfer of any Condominium shall
not affect the Assessment lien; however, the sale or transfer
of any Condominium pursuant to judicial or nonjudicial
foreclosure of a first Mortgage or pursuant to any remedies
provided for in the Mortgage shall extinguish the lien of such
Assessments as to unpaid payments for regularly budgeted dues
or charges which became due prior thereto. Any first
Mortgagee who obtains title to a Condominium pursuant to the
50018.154-24590.FCM 051816 -118-
remedies provided in the Mortgage, or foreclosure of the
Mortgage, or any purchaser at a foreclosure sale of a first
Mortgage will not be liable for unpaid Assessments or charges
which became due prior to the acquisition of title to such
Condominium by the Mortgagee (except for claims for a share of
such Assessments or charges resulting from a reallocation of
such Assessments or charges to all Condominiums, including the
mortgaged Condominium) ;
(c) Except as may otherwise be provided herein or
by statute in case of condemnation or substantial loss to the
Corporation Property, unless sixty-seven percent (67%) of the
Owners other than Declarant, or sixty-seven percent (67%) of
the first Mortgagees (based upon one [1] vote for each Unit
encumbered by said Mortgagee' s first Mortgage) have given
their prior written approval , neither the Corporation nor the
Owners shall be entitled to:
(1) By act or omission, seek to abandon or
terminate the Condominium Project;
(2) Record or file any amendment which would
change the pro rata interest or obligations of any Con-
dominium for purposes of : (i) levying Assessments or
charges, or allocating distributions of hazard insurance
proceeds or condemnation awards, or (ii) determining the
pro rata share of ownership of each Condominium Unit in
the Common Area;
(3) Partition or subdivide any Condominium,
except as provided in the Article herein entitled "Cove-
nant Against Partition" ; provided, however, that no
Condominium may be partitioned or subdivided without the
prior written approval of the first Mortgagee for such
Condominium;
(4) By act or omission seek to abandon, parti-
tion, subdivide, encumber, sell or transfer any or all of
the Corporation Property. The granting of easements for
public utilities or for other public purposes consistent
with the intended uses of the Corporation Property under
this Declaration and the granting of exclusive easements
to Owners over portions of the Corporation Property to
conform the boundaries of the Corporation Property to the
as built location of authorized Improvements, shall not
be deemed a transfer within the meaning of this clause;
(5) Use hazard insurance proceeds for losses
to the Corporation Property for other than repair,
replacement or reconstruction, subject to the provisions
of this Declaration;
50018.154-24590.FCM OS1816 -119-
I
(6) Effect any decision of the Corporation to
terminate professional management and assume self-
management of the Project, if professional management was
previously required by a holder, insurer or guarantor of
any first Mortgage;
(7) By act or omission, change, waive or
abandon any provisions of this Declaration, or enforce-
ment thereof, pertaining to architectural design of the
Condominiums or the maintenance and operation of the
Corporation Property within the Project, including,
without limitation, sidewalks, fences, and landscaping
within the Project ; and
(8) Fail to maintain fire insurance and
extended coverage on the insurable Corporation Property
on a current replacement cost basis in an amount not less
than one hundred percent (1000) of the insurable value
thereof .
(d) All taxes, Assessments and charges which may
become liens prior to the first Mortgage under local law shall
relate only to individual Condominiums, and not to the Project
as a whole;
(e) No provision of the constituent documents shall
be interpreted to give the Owner of a Condominium, or any
other party, priority over any rights of the first Mortgagee
of the Condominium pursuant to its Mortgage in the case of a
distribution to such Owner of insurance proceeds or condemna-
tion awards for losses to or a taking of the Condominium Units
and/or the Corporation Property;
(f) The Assessments provided for in the constituent
documents shall include an adequate reserve fund for main-
tenance, repairs and replacement of those elements of the
Corporation Property that must be replaced on a periodic
basis, and shall be payable in regular installments, rather
than by Special Assessments;
(g) Each Eligible Mortgage Holder shall be entitled
to timely written notice of any:
(1) Condemnation, eminent domain proceeding,
or casualty loss that affects either a material portion
of the Project or the Condominium Unit securing its
Mortgage;
(2) Substantial damage or destruction to the
Project, or any portion thereof, when such loss exceeds
Ten Thousand Dollars ($10, 000 . 00) ;
50018.154-24590.FCM 051816 -1 2 0-
(3) Default in the performance by an indi-
vidual Owner of any obligation under the constituent
documents (including, but not limited to the nonpayment
of Assessments) which is not cured within sixty (60) days
after the Corporation learns of such default by the Owner
of the Condominium on which it holds the Mortgage;
(4) Lapse, cancellation or material modifica-
tion of any insurance policy or fidelity bond maintained
by the Corporation;
(5) Abandonment or termination of the Project;
and
(6) Proposed action that requires the consent
of a specified percentage of Eligible Mortgage Holders .
(h) Any agreement for professional management of
the Project or any agreement whereby the Declarant will
provide services to the Corporation may not exceed one (1)
year, renewable by agreement of the parties for successive one
(1) year periods, unless approved by either a vote or written
assent of a majority of the Corporation' s voting power, in
which case the maximum term of the management contract is
three (3) years . Any such agreement must provide for termina-
tion by either party with or without cause and without payment
of a termination fee on at least thirty (30) days' written
notice, but not more than ninety (90) days' written notice . In
the event Declarant executes a contract with a professional
management company prior to the Owners' election of at least
a majority of the Board, the contract must allow termination
by the Board, without payment of a termination fee, at any
time subsequent to the Owners being elected to a majority of
positions on the Board;
(i) In the event of substantial damage to or des-
truction of any Condominium Unit or any part of the Corpora-
tion Property, each Eligible Mortgage Holder for such Condo-
minium will be entitled to timely written notice of any such
damage or destruction;
(j ) Each Eligible Mortgage Holder will, upon
request, be entitled to:
(1) Examine current copies of the books,
records and financial statements of the Corporation
during normal business hours;
(2) Obtain from the Corporation an annual
audited financial statement of the Project for the
previous fiscal year (without expense to the holder,
insurer, or guarantor requesting said statement) . As set
50018.154-24590.FCM 051816 -1 2 1-
forth in the Article herein entitled "Powers and Duties
of the Corporation, " an annual report shall be available
within one hundred twenty (120) days after the close of
the fiscal year. If for any reason, the report is not
audited, it shall be accompanied by a certificate from an
authorized officer of the Corporation that the report was
prepared without audit from the books and records of the
Corporation, and the Eligible Mortgage Holder may have an
audited financial statement prepared at its own expense;
and
(3) Receive written notice of all meetings of
the Corporation and be permitted to designate a rep-
resentative to attend all such meetings .
(k) Each Owner shall notify the Corporation, in
writing, within ten (10) days after the close of escrow for
the purchase of his Condominium of the name and address of his
first Mortgagee, and thereafter, each Owner shall promptly
notify the Corporation of any changes of name or address for
his first Mortgagee;
(1) Each Owner hereby authorizes a first Mortgagee
on a Condominium to furnish information to the Board concern-
ing the status of any such first Mortgage;
(m) In the event any portion of the Common Property
encroaches upon any Condominium Unit or any Condominium Unit
encroaches upon the Common Property as a result of the
construction initially performed by Declarant, reconstruction,
repair, shifting, settlement or movement of any portion of the
Project, a valid easement for the encroachment and for the
maintenance of the same shall exist so long as the encroach-
ment exists; and
(n) First Mortgagees of Condominium Units may,
jointly or singularly, pay taxes or other charges which are in
default and which may have become a lien on the Common
Property, and may pay overdue premiums on hazard insurance
policies or secured new hazard insurance coverage on the lapse
of a policy for the Common Property, and first Mortgagees
paying such payments shall be owed immediate reimbursement
therefor from the Corporation. Upon demand by any first
Mortgagee, the Board shall execute, on behalf of the Corpora-
tion, an agreement establishing the right of all first
Mortgagees to such reimbursement.
Section 2 . Violation of Mortgagee Protection Provi-
sions . No breach of any of the foregoing Protective Covenants shall
cause any forfeiture of title or reversion, or bestow any right of
re-entry whatsoever, but in the event that any one (1) or more of
these Protective Covenants shall be violated, the Declarant, its
50018.154-24590.FCM 051816 -1 2 2
successors and assigns, or the Corporation, or any Owner of a
Condominium in the Project, may commence a legal action in any
court of competent jurisdiction to enjoin or abate said violation
and/or to recover damages ; provided, however, that any such
violation shall not defeat or render invalid the lien of any
Mortgage made in good faith and for value as to said Condominium.
Said Protective Covenants shall be binding upon and effective
against any Owner of said Condominium, or a portion thereof, whose
title thereto is acquired by foreclosure, a trustee sale or
otherwise .
Section 3 . Effect of Amendments . Except as otherwise
provided herein, no amendment of this Declaration or the Articles
or the By-Laws of the Corporation shall affect the rights of any
Mortgagee whose lien was created prior to recordation of such
amendment .
Section 4 . Amendments to Conform With Mortgagee Re-
quirements . It is the intent of Declarant that this Declaration and
the Articles and By-Laws of the Corporation, and the Project in
general, meet all requirements necessary to purchase, guarantee,
insure and subsidize any Mortgage of a Condominium in the Project
by the FHLMC, FNMA, and the VA/FHA. In furtherance of said intent,
Declarant may amend this Declaration without the consent of the
Members at any time after the close of escrow for the first sale of
a Condominium in the Project by recording a written instrument
setting forth the amendment, provided that the amendment is
necessary to cause this Declaration to comply with the requirements
of CalBRE, FHLMC, FNMA, GNMA, and/or VA/FHA; provided, however,
that any such amendment shall be effective only if Declarant mails
(by certified or registered mail with a "return receipt" requested)
a copy of the amendment to all of the foregoing entities which are,
or have agreed to be, a holder, insurer or guarantor of a first
Mortgage, and does not, within sixty (60) days thereafter, receive
a notice of disapproval from any such entity. Said amendments shall
not be recorded by Declarant until after the expiration of such
sixty (60) day period.
ARTICLE XVIII
ENFORCEMENT OF BONDED OBLIGATIONS
Section 1 . Enforcement of Bonded Obligations . In the
event that any Improvements to the Corporation Property have not
been completed prior to the first close of escrow for a Condominium
following the issuance of a Final Subdivision Public Report by
CalBRE, and the Corporation is the obligee under a bond or other
arrangement (hereinafter referred to as the "Bond" ) to secure a
performance of the commitment of Declarant to complete such
Improvements, the following provisions shall apply:
50018.154-24590.FCM 051816 -1 2 3-
(a) The Board shall consider and vote on the
question of action by the Corporation to enforce the obliga-
tions under the Bond with respect to any Improvements for
which a Notice of Completion has not been filed within sixty
(60) days after the completion date specified for such Im-
provements in the Planned Construction Statement appended to
the Bond. If the Corporation has given an extension in writing
for the completion of any Corporation Property Improvement,
the Board shall consider and vote on the aforesaid question if
a Notice of Completion has not been filed within thirty (30)
days after the expiration of such extension.
(b) In the event that the Board determines not to
initiate action to enforce the obligations under the Bond, or
in the event the Board fails to consider and vote on such
question as provided above, the Board shall call a special
meeting of the Members for the purpose of voting to override
such decision or such failure to act by the Board. Such
meeting shall be called according to the provisions of the By-
Laws dealing with meetings of the Members, but in any event,
such meeting shall be held not less than thirty-five (35) days
nor more than forty-five (45) days after receipt by the Board
of a petition for such meeting signed by Members representing
five percent (50) of the total voting power of the Corpora-
tion.
(c) The only Members entitled to vote at such
meeting of Members shall be the Owners, other than Declarant .
A vote at such meeting of a majority of the voting power of
such Members, other than the Declarant, to take action to
enforce the obligations under the Bond shall be deemed to be
the decision of the Corporation, and the Board shall thereaf-
ter implement such decision by initiating and pursuing
appropriate action in the name of the Corporation.
ARTICLE XIX
VETERANS AFFAIRS PROVISIONS
Section 1 . Condominium Ownership. As noted above, each
Owner in the Project shall receive title to his or her respective
Condominium Unit, various easements (exclusive and nonexclusive, as
set forth in this Declaration) , an undivided one/thirteenth
(1/13th) interest in the Common Area and a membership in the Corp-
oration.
Section 2 . Condominium Documentation. This Declaration
and any amendment or restatement hereto shall be recorded in the
County. The By-Laws need not be recorded. The Corporation shall
make available to all Condominium Owners, lenders, and the holders,
insurers and guarantors of the first Mortgage on any Condominium,
50018.154-24590.FCM 051816 -1 2 4-
current copies of the Declaration, By-Laws, Articles, Rules and
Regulations, and other books and records and financial statements
of the Corporation. The Corporation shall also make available to
prospective purchasers of the Condominiums current copies of the
Declaration, By-Laws, Articles, Rules and Regulations, and the most
recent annual audited financial statement of the Corporation, if
such has been prepared. For purposes of this Section, the term
"available" shall mean available for inspection, upon request,
during normal business hours or under other reasonable circumstanc-
es .
Section 3 . Amendments . While the Declarant is entitled
to appoint a majority of the members of the Board (as provided in
the Article of this Declaration entitled "The Corporation" ) , any
amendments to this Declaration, the By-Laws, or other enabling
documentation must be approved by the Secretary of Veterans Affairs
or any employee of the Department of Veterans Affairs authorized to
act in the Secretary' s stead ( "Secretary" ) if required in writing
in connection with a loan made by the Department of Veterans
Affairs for a Condominium in the Project . Material amendments and
extraordinary actions (as defined in VA' s regulations) must be
approved in the manner specified in Section 1 of the Article of
this Declaration entitled Mortgagee Protection (e.g. , by 670 of the
Members other than Declarant) .
Section 4 . Description of the Condominium Units, Common
Area, and Corporation Property. The Condominium Units, Common
Area, and Corporation Property (including the overall plan of
development) are described throughout this Declaration, including,
without limitation, in the Articles of this Declaration entitled
"Introduction to Monarch Walk" and "Description of the Condomini-
ums . " Maintenance requirements for the Condominium Units and Common
Property are set forth in the Articles of this Declaration entitled
"Repair and Maintenance. "
Section 5 . Corporation' s Right of Termination of
Certain Contracts . In the event the Corporation executes any of
the following contracts prior to the Owners ' election of at least
a majority of the Board, the contract must allow termination by the
Board, without payment of a termination fee or any other penalty,
upon not more than ninety (90) days' notice to the other party to
the contract :
(a) Any management contract, employment contract or
lease of recreational or parking areas or facilities; or
(b) Any contract or lease of recreational or
parking areas or facilities .
Section 6 . Corporation' s Right of Entry and Other
Rights . If applicable and consistent with the Corporation' s
maintenance obligations of the Condominiums as set forth herein,
the Corporation shall have the immediate right (without notice to
50018.154-24590.FCM 051816 -1 2 5-
the Owner) to enter upon or within any Owner' s Condominium Unit
and/or the Corporation Property to effect emergency repairs, and
shall have the right, after reasonable notice to the Owner and at
a reasonable hour of the day, to enter upon or within any Owner' s
Condominium Unit and/or the Corporation Property to effect other
repairs, improvements, replacement or maintenance as necessary for
which the Corporation has responsibility under this Declaration or
the law. As set forth in the Article of this Declaration entitled
"Powers and Duties of the Corporation, " the Corporation shall have
such other rights and powers as are reasonably necessary to the
ongoing development and operation of the Project, including without
limitation, the right to grant utility easements under, through or
over the Corporation Property.
Section 7 . Assessments . Provisions addressing each
Owner' s responsibility for, and the Corporation' s authority to levy
and enforce the collection of, Assessments are set forth in the
Article of this Declaration entitled "Assessments . " Notwithstand-
ing any other provisions in this Declaration, a lien for Assess-
ments shall not be affected by any sale or transfer of a Condomini-
um Unit, except that a sale or transfer of any Condominium pursuant
to judicial or nonjudicial foreclosure of a first Mortgage
guaranteed by VA shall extinguish a subordinate lien for Assess-
ments which became payable prior to such sale or transfer. Any
such sale or transfer pursuant to a judicial or nonjudicial
foreclosure shall not relieve the purchaser or transferee of the
Condominium from liability for, not the Condominium so sold or
transferred from the lien of, any Assessments thereafter becoming
due .
Section 8 . Reserves and Working Capital . The Article
of this Declaration entitled "Powers and Duties of the Corporation"
contains provisions for an adequate reserve fund for the periodic
maintenance, repair and replacement of the Corporation Property,
which fund is to intended to be maintained and established from
Regular Assessments .
Section 9 . Voting Rights . Provisions addressing each
Owner' s voting rights, including the allocation of a portion of the
votes in the Corporation to each Owner, are set forth in the
Article of this Declaration entitled "The Corporation. "
50018.154-24590.FCM 051B16 -1 2 6-
Section 10 . Easements . Nothing in this Declaration
restricts an Owner' s right of ingress or egress to his or her
Condominium Unit . As provided in the Article of this Declaration
entitled "Reservation of Easements and Other Property Rights in the
Corporation Property, " easements for encroachment have been
reserved in favor of each Owner. As provided in the Article of
this Declaration entitled Mortgagee Protection, in the event any
portion of the Common Property encroaches upon any Condominium Unit
or any Condominium Unit encroaches upon the Common Property as a
result of the construction initially performed by Declarant,
reconstruction, repair, shifting, settlement or movement of any
portion of the Project, a valid easement for the encroachment and
for the maintenance of the same shall exist so long as the
encroachment exists .
Section 11 . Restrictions on Alienation. Except as may
be required with respect to those Condominiums subject to
affordable housing requirements, as set forth in the Article of
this Declaration entitled "Mortgagee Protection, " the right of an
Owner to sell, transfer or otherwise convey his Condominium shall
not be subject to any right of first refusal or any similar
restriction in favor of the Corporation.
Section 12 . Rights of Action. As noted below, the
Corporation and each Owner shall have the right to enforce, by
proceedings at law or in equity, all of the Protective Covenants
now or hereafter imposed by this Declaration and the By-Laws,
respectively (and the Rules and Regulations duly adopted by the
Corporation) , including, without limitation, the right to prosecute
a proceeding at law or in equity against the person or persons who
have violated, or are attempting to violate, any of said Protective
Covenants, to enjoin or prevent them from doing so, to record a
notice of non-compliance, to cause said violation to be remedied
and/or to recover damages for said violation; provided, however,
that with respect to Assessment liens, the Corporation shall have
the exclusive right to the enforcement thereof .
Section 13 . Miscellaneous Requirements .
(a) Declarant Transfer of Control of Corporation. The
Declarant' s Class B membership shall cease and be converted to
Class A membership, and the Declarant' s right to solely
appoint a majority of the members of the Board shall termi-
nate, within the time periods specified in Section 2 of the
Article of this Declaration entitled "The Corporation. "
(b) Taxes . As set forth in the Article of this Declara-
tion entitled "Mortgagee Protection, " all taxes, Assessments
and charges which may become liens prior to the first Mortgage
under local law shall relate only to individual Condominiums,
and not to the Project as a whole.
50018.154-24590.FCM 051816 -1 2 7-
� Ili
(c) Corporation By-Laws . The Corporation' s By-Laws
shall contain sufficient provisions for the successful
governance of the Corporation, including, among things,
adequate provisions for the election and removal of directors
and officers of the Corporation.
(d) Insurance. The Corporation and each Owner shall be
required to maintain insurance as set forth herein, including
the Article of this Declaration entitled "Insurance . "
(e) Minimum and Maximum Percentages of Undivided
Interests in the Common Area. As noted above, each Owner in
the Project will receive an undivided one/thirteenth (1/13th)
fractional fee interest in the Common Area. The Project as
set forth in the general plan of development currently on file
with CalBRE, will contain a total of thirteen (13)
Condominiums .
(f) Professional Management. As noted above, any
agreement for professional management of the Project or any
agreement whereby the Declarant will provide services to the
Corporation may not exceed one (1) year, renewable by agree-
ment of the parties for successive one (1) year periods,
unless approved by either a vote or written assent of a
majority of the Corporation' s voting power or by VA or FHA, in
which case the maximum term of the management contract is
three (3) years . Any such agreement must provide for termina-
tion by either party with or without cause and without payment
of a termination fee on thirty (30) days' or ninety (90) days'
or less, respectively, written notice .
(g) Corporation' s By-Laws . The Corporation' s By-Laws
must conform with the following requirements :
(1) Notices of Meetings . The By-Laws must provide
that meetings of the Members of the Corporation regarding
material amendments or extraordinary actions (as defined
in VA' s regulations) will be held on at least twenty-five
(25) days advance notice to all Members and that meetings
for all other purposes will be held on at least seven (7)
days notice . The notice must state the purpose of the
meeting and contain a summary of any material amendments
or extraordinary actions proposed. If proxies are
permitted, the notice must contain a copy of the proxy
that may be cast in lieu of attendance at the meeting.
The quorum for any such meeting must be at least twenty
(20) percent of the total number of votes .
(2) Election, Removal, and Replacement of Board of
Directors of Corporation. The By-Laws may not alter the
provisions for election (or appointment by Declarant) of
Board members of the Corporation set forth in this
50018.154-24590.FCM 051816 -1 2 8
Declaration. In addition, the By-Laws shall contain the
following provisions :
i) Removal of Board Members of the Corpora-
tion. At any regular or special meeting duly
called, any one (1) or more of the Directors of the
Corporation may be removed, with or without cause,
as provided herein, and a successor may then and
there be elected to fill the vacancy so created.
Unless the entire Board is removed from office by
the vote of Corporation Members, an individual
Director shall not be removed prior to the expira-
tion of his term of office if the number of votes
cast against his removal would be sufficient to
elect the Director if voted cumulatively at an
election at which the same total number of votes
were cast and the entire number of Directors au-
thorized at the time of the most recent election of
the Director were then being elected. A Director
who has been elected to office solely by the votes
of Members of the Corporation, other than the
Declarant, may be removed from office prior to the
expiration of his term of office only by the vote
of at least a simple majority of the voting power
residing in Members, other than the Declarant .
ii) Vacancies on Board of Directors of Corpo-
ration. Vacancies on the Board caused by any rea-
son, other than the removal of a Director by a vote
of the Corporation, shall be filled by vote of a
majority of the remaining Directors, even though
they may constitute less than a quorum, and each
Director so elected shall serve for the remainder
of the term of the Director he/she replaces; pro-
vided, however, that for as long as the Declarant
has the right to appoint a majority of the Board
members under the By-Laws, the Declarant may ap-
point a new Board member to fill any vacancy re-
sulting from the resignation of a Board member
previously appointed by the Declarant without the
approval of the remaining Directors . In the event
that a majority of the remaining Directors are
unable to agree upon a successor within fifteen
(15) days following the occurrence of a vacancy, a
special election to fill the vacancy shall then be
held in accordance with the terms provided in the
Article herein entitled "Nomination and Election of
Directors, " in accordance with the secret ballot
procedures set forth in the By-Laws and California
Civil Code Sections 5100-5130 .
50018.154-24590.FCM 051816 -1 2 9
ARTICLE XX
GENERAL PROVISIONS
Section 1 . Enforcement .
(a) The Corporation, the City (in its sole discre-
tion) or the Owner of any Condominium in the Project, includ-
ing the Declarant, shall have the right (but not the obliga-
tion) to enforce, by proceedings at law or in equity, all of
the Protective Covenants now or hereafter imposed by this
Declaration and the By-Laws, respectively (and the Rules and
Regulations duly adopted by the Corporation) , including, with-
out limitation, the right to prosecute a proceeding at law or
in equity against the person or persons who have violated, or
are attempting to violate, any of said Protective Covenants,
to enjoin or prevent them from doing so, to record a notice of
non-compliance, to cause said violation to be remedied and/or
to recover damages for said violation; provided, however, that
with respect to Assessment liens , the Corporation shall have
the exclusive right to the enforcement thereof .
(b) The result of every act or omission whereby any
of the Protective Covenants contained in this Declaration or
the provisions of the By-Laws are violated, in whole or in
part, is hereby declared to be and constitutes a nuisance, and
every remedy allowed by law or equity against a private or
public nuisance shall be applicable against every such result
and may be exercised by any Owner, by the Corporation, by its
successors in interest, or by the City.
(c) The remedies herein provided for breach of the
Protective Covenants contained in this Declaration or the
provisions of the By-Laws shall be deemed cumulative, and none
of such remedies shall be deemed exclusive.
(d) The failure of the Corporation, the City, or
any Owner to enforce any of the Protective Covenants contained
in this Declaration, the provisions of the By-Laws or any
Rules or Regulations shall not constitute a waiver of the
right to enforce the same thereafter.
(e) Prior to filing a civil action by either the
Corporation or by an Owner (but not the City) solely for
declaratory relief or injunctive relief, or for declaratory
relief or injunctive relief in conjunction with a claim for
monetary damages other than Corporation Assessments , related
to the enforcement of the Corporation governing documents, the
parties may be required to comply with Civil Code Section 5925
et seg. , if applicable. Failure to comply with the prefiling
requirements of Section 5925 et seq. of the Civil Code may
result in the loss of the right to sue regarding enforcement
50018.154-24590.FCM 051816 -1 3 0-
of the Corporation governing documents . Upon motion by any
party for attorneys' fees and costs as the prevailing party,
the court, in determining the amount of the award, may
consider a party' s refusal to participate in alternative
dispute resolution prior to the filing of the action.
(f) A breach of the Protective Covenants contained
in this Declaration or of the provisions of the By-Laws shall
not affect or impair the lien or charge of any bona fide Mort-
gage or deed of trust made in good faith and for value on any
Condominium; provided, however, that any subsequent Owner of
such property shall be bound by said Protective Covenants and
the provisions of the By-Laws, whether or not such Owner' s
title was acquired by foreclosure, a trustee' s sale or
otherwise .
(g) The Board, for and on behalf of the Corpora-
tion, may assess monetary penalties against an Owner as a
Compliance Assessment and/or temporarily suspend said Owner' s
voting rights and right to use the recreational facilities, if
any, for the period during which any Assessment against said
Owner' s Condominium remains unpaid; provided, however, the
requirements for Notice and Hearing set forth in the By-Laws
shall be followed with respect to the accused Owner before a
decision to impose discipline is reached.
(h) The Board, for and on behalf of the Corpora-
tion, may temporarily suspend an Owner' s voting rights and
right to use the recreational facilities, if any, for a period
not to exceed thirty (30) days for any infraction of the
Corporation' s Rules and Regulations; provided, however, the
requirements for Notice and Hearing set forth in the By-Laws
shall be followed with respect to the accused Owner before a
decision to impose discipline is reached.
(i) In addition to the above general rights of
enforcement, the City shall have the right, through its agents
and employees, to enter upon any part of the Project for the
purpose of enforcing the California Vehicle Code and its local
ordinances, and is hereby granted an easement over the Project
for that purpose and to maintain the exterior portions of the
Corporation Property at the expense of the Corporation in
accordance with the City' s Municipal Code, as applicable.
Nothing in this Section is intended to, nor shall it obligate,
the City to take enforcement action; any such enforcement
action shall be a the City' s sole discretion and election.
This provision is intended to be interpreted as broadly as
possible under California law to preserve the City' s
enforcement rights as to its project approvals and the
Huntington Beach Municipal Code. In the event of enforcement,
the City may recover its enforcement costs, including, without
limitation, attorneys' fees .
50018.154-24590.FCM 051816 -131-
Section 2 . Severability. Invalidation of any one of
these Protective Covenants by judgment or court order shall in no
way affect any other provisions hereof, which shall remain in full
force and effect .
Section 3 . Term. The Protective Covenants set forth in
this Declaration shall run with and bind the Project, and shall
inure to the benefit of the Corporation and be enforceable by the
Board or the Owner of any land subject to this Declaration, their
respective legal representatives, heirs, successors and assigns,
for a term of fifty (50) years from the date this Declaration is
recorded, after which time said Protective Covenants shall be
automatically extended for successive periods of ten (10) years,
unless an instrument, signed by a majority of the then Owners
agreeing to terminate said Protective Covenants, in whole or in
part , has been recorded within one (1) year prior to the termina-
tion of the initial fifty (50) year term, or within one (1) year
prior to the termination of any successive ten (10) year period.
Section 4 . Construction. The provisions of this Declar-
ation shall be liberally construed to effectuate its purpose of
creating a uniform plan for the development, maintenance,
improvement, protection, use, occupancy, and enjoyment of the
Project . The Article and Section headings have been inserted for
convenience only and shall not be considered or referred to in
resolving questions of interpretation or construction.
Section 5 . Singular Includes Plural . Whenever the con-
text of this Declaration may so require, the singular shall include
the plural, and the masculine shall include the feminine and
neuter.
Section 6 . Amendments .
(a) Amendments by Declarant . Prior to the close of
escrow for the sale of a Condominium to a member of the
public, in accordance with a Final Subdivision Public Report
issued by CalBRE, this Declaration may be amended, restated or
terminated by an instrument executed by Declarant . Notwith-
standing any other provisions of this Declaration, for so long
as Declarant owns any portion of Tract No. 17930, Declarant
may unilaterally amend this Declaration (so long as such an
amendment does not require prior written consent of the Real
Estate Commissioner as set forth in Business and Professions
Code Section 11018 . 7) to (i) conform this Declaration to the
rules, regulations or requirements of VA/FHA, FHA, CalBRE,
FNMA, GNN.A, FHLMC, the County, City, State, or Federal
government or any other governmental agency or entity
applicable to the Project, (ii) amend or supplement any of the
Exhibits to this Declaration, (iii) comply with any City,
County, State or Federal laws or regulations, (iv) correct any
typographical errors or inadvertent errors in the Declaration
50016.154-24590.FCM 051816 -1 3 2-
and/or Exhibits attached thereto, (v) record any maintenance
standards and/or obligations of the Corporation and Owners,
and (vi) supplement this Declaration with provisions which
pertain to rights and obligations of Declarant, the Corpora-
tion or the Owners arising under Division 2 , Part 2 , Title 7
(commencing with Section 895) of the California Civil Code .
(b) Amendments by Corporation. Subject to Section
6 (a) above, and all applicable provisions of law (e .g. , the
provisions of California Civil Code Sections 5100-5130
regarding secret ballots) , this Declaration may be amended
only by an affirmative vote of Owners representing not less
than sixty-seven percent (67%) of the Class A voting power and
the Class B voting power of the Corporation. At such time when
the Class B membership shall cease and be converted to Class
A membership, any and all amendments to this Declaration shall
be enacted by requiring the vote or written assent of Owners
representing both: (a) sixty-seven percent (670) of the total
voting power of the Corporation, and (b) sixty-seven percent
(670) of the votes of Members, other than the Declarant;
provided, however, that the percentage of the voting power
necessary to amend a specific provision shall not be less than
the percentage of affirmative votes prescribed for action to
be taken under said provision, and no amendment of a provision
of this Declaration which requires the approval or consent of
Declarant may be made without the written approval of Declar-
ant (e.g. , provisions pertaining to the resolution of Dis-
putes, Maintenance Guidelines, Maintenance Manual, Maintenance
Recommendations, etc . ) . Any Owner or the Corporation may
petition the Superior Court of Orange County for an order re-
ducing the necessary percentage required under this Section to
amend this Declaration; provided, however, that under no
circumstances shall any provision requiring the consent of the
Declarant be amended without such consent . The procedure for
effecting this petition is set forth in Section 4275 of the
California Civil Code, as the same may be amended, from time
to time.
(c) Approval of Mortgagees . In addition to the
rights of first Mortgagees, as set forth in the Article herein
entitled "Mortgagee Protection, " in the event that FNMA or
VA/FHA participates in the financing of Condominiums in the
Project, the written consent of not less than fifty-one
percent (510) of the "Eligible Mortgage Holders" (as defined
in the Article herein entitled "Mortgagee Protection") shall
be required for any amendment of a "material" nature . An
amendment which affects -or purports to affect any of the
following is considered material :
(1) The legal status of the Project as a
common interest development;
50018.154-24590.FCM 051816 -1 3 3-
(2) Voting rights;
(3) Increases in Assessments that raise the
previously assessed amount by more than twenty-five
percent (25%) , assessment liens or the priority of
assessment liens, including the levy and collection
thereof, enforcement provisions for nonpayment and
subordination of liens for nonpayment;
(4) Reductions in reserves for maintenance,
repair and replacement of the Corporation Property;
(5) Responsibility for Corporation Property
maintenance and repair;
(6) Reallocation of interests in the Corpora-
tion Property or rights to use the Corporation Property;
(7) Boundaries of any Condominium Unit;
(8) Convertibility of Corporation Property
into Condominium Units or Condominium Units into Corpora-
tion Property;
(9) Encroachment by Improvements into Corpora-
tion Property;
(10) Expansion or contraction of the Project,
or addition, annexation or de-annexation of additional
property to or from the Project;
(11) Reducing insurance or fidelity bonds
requirements;
(12) Increased restrictions on the leasing of
Condominiums;
(13) Imposition of restrictions on alienation,
including, but not limited to, rights of first refusal;
(14) Any decision by the Corporation to es-
tablish self-management, if professional management was
previously required by an Eligible Mortgage Holder or
legal documents governing the Project;
(15) Restoration or repair of the Project in a
manner other than as specified in this Declaration;
(16) Any action to terminate the legal status
of the Project after substantial destruction or condem-
nation occurs; and
50018.154-24590.FCM 051816 -1 3 4-
(17) Mortgagee protection provisions as set
forth in that Article hereinahove entitled "Mortgagee
Protection, " and such other provisions in this Declara-
tion for which the consent of Mortgagees shall he re-
quired or which are expressly for the benefit of Mort-
gagees, insurers or guarantors of Mortgages .
An addition or amendment to this Declaration shall not he
considered material if it is for the purpose of correcting
technical errors or for clarification only or impacting rights
which do not impair the security interest of an Eligible
Mortgage Holder. In the event the Corporation is considering
termination of the legal status of the Project for reasons
other than the substantial destruction or condemnation of the
Project, then sixty-seven percent (67%) of the Eligible
Mortgage Holders must agree to said termination.
Notwithstanding the foregoing, in the event any Eligible
Mortgage Holders receives a written request, delivered by
certified or registered mail with return receipt requested,
from the Board to approve any amendment to this Declaration,
and such Eligible Mortgage Holder does not deliver a negative
response in writing to the Board within sixty (60) days of the
mailing of such request by the Board, such Eligible Mortgage
Holder shall he deemed to have approved such proposed amend-
ment .
(d) Approval by City. The Declarant or the Corpora-
tion shall forward, or cause to he forwarded, to the City a
written notice of any such amendment or termination. If no
notice of disapproval is received by the Corporation within
forty-five (45) days following the mailing of such notice,
such amendment or termination shall he deemed to he approved
by the City.
(e) Recordation of Amendments . An amendment made in
accordance with the provisions set forth hereinahove shall he
effective when executed by the President and Secretary of the
Corporation, who shall certify that the amendment has been
approved by the membership and, where appropriate, by the
first Mortgagees, in the percentages set forth hereinahove,
and recorded in the Office of the County Recorder. Upon such
recordation, the amendment shall he effective and binding upon
all Owners and all Mortgagees, regardless of whether such
Owner or such Mortgagee consented to such amendment .
Section 7 . Encroachments . None of the rights and ohli-
gations of the Owners created herein or by the deed shall he alter-
ed in any way by encroachments due to settlement or shifting of
structures or any other cause (except intentional or negligent acts
of the Owners, other than the Declarant) . There shall he valid
easements for the maintenance of said encroachments so long as they
shall exist; provided, however, that in no event shall a valid
50018.154-24590.FCM 051816 -1 3 5-
easement for encroachment be created in favor of an Owner if said
encroachment occurred due to the willful conduct of said Owner.
Section 8 . Notices . Any notice permitted or required to
be delivered as provided herein shall be in writing and may be
delivered either personally or by mail . If delivery is made by
first class, registered or certified mail, it shall be deemed to
have been delivered and received forty-eight (48) hours after a
copy of the same has been deposited in the United States mail,
postage prepaid, addressed to any person at the address given by
such person to the Corporation for the purpose of service of such
notice, or to the Condominium Unit of such person if no address has
been given to the Corporation. If such notice is not sent by first
class, regular or certified mail, it shall be deemed to have been
delivered when received. Such address may be changed, from time to
time, by notice in writing to the Corporation.
Section 9 . Attorneys' Fees . Except as otherwise
provided herein (e .g. , resolution of Disputes whereby each party is
responsible for .payment of his attorney fees, without the right to
reimbursement from the other party and notwithstanding which party
may be the "prevailing party") , or in the Limited Warranty, in the
event the Board, Corporation, or any Owner of a Condominium shall
commence legal proceedings against the Owner of any other Condomin-
ium to enforce the covenants of this Declaration, or to declare
rights hereunder as the result of any breach, or claim of breach,
of said covenants, the prevailing party shall recover the cost of
the suit, arbitration, or alternative dispute resolution, in
addition to its costs of suit, including reasonable attorneys'
fees, as may be fixed by the court . In addition, if any Owner
defaults in making a payment of Assessments and the Corporation has
obtained the services of an attorney in connection therewith, the
Owner covenants and agrees to pay to the Corporation any costs or
fees incurred, including reasonable attorneys' fees, regardless of
whether dispute proceedings are instituted.
Section 10 . Mergers or Consolidations . Upon a merger or
consolidation of the Corporation with another association, the
Corporation' s properties, rights and obligations may, by operation
of law, be transferred to another surviving or consolidated
association or, alternatively, the properties, rights and obliga-
tions of another association may, by operation of law, be added to
the properties, rights and obligations of the Corporation as a
surviving corporation pursuant to a merger. The surviving or
consolidated association may administer and enforce the Protective
Covenants established by this Declaration governing the Project,
together with the covenants and restrictions established upon any
other property as one plan.
Section 11 . Notice of Procedures . On September 20,
2002 , the Governor of the State of California signed into law the
construction dispute reform bill known as Senate Bill No. 800,
50018.154-24590.FCM 051816 -1 3 6-
which added section 43 . 99 and Title 7 (commencing with section 895)
to Part 2 of Division 2 of the California Civil Code ( "Right to
Repair Law") . The Right to Repair Law contains various procedures
which may impact an owner' s legal rights as a homeowner and the
Corporation with respect to claims impacting the Corporation
Property. Each Owner and the Corporation may wish to consult with
an attorney or other legal advisor to ascertain the requirements of
the Right to Repair Law and its impact upon his legal rights .
Section 12 . DECLARANT' S ELECTION NOT TO ENGAGE IN THE
NONADVERSARIAL PROCEDURE PROVIDED BY THE RIGHT TO REPAIR LAW. BY
ACCEPTANCE OF A DEED TO A CONDOMINIUM OR THE CORPORATION PROPERTY,
EACH OWNER AND THE CORPORATION ACKNOWLEDGES THAT DECLARANT HAS
ELECTED NOT TO ENGAGE IN THE NONADVERSARIAL PROCEDURE FOR THE
RESOLUTION OF DISPUTES (i .e. , CALIFORNIA CIVIL CODE SECTION 914)
SET FORTH IN SENATE BILL NO. 800, WHICH ADDED SECTION 43 . 99 AND
TITLE 7 (COMMENCING WITH CIVIL CODE SECTION 895) TO PART 2 OF
DIVISION 2 OF THE CALIFORNIA CIVIL CODE, RELATING TO CONSTRUCTION
DEFECTS (i . e . , THE RIGHT TO REPAIR LAW) . INSTEAD, DECLARANT WILL
SEEK TO ENFORCE ITS OWN NONADVERSARIAL PROCEDURES (e.g. , CONTAINED
IN THE DECLARATION, AS SAME MAY BE AMENDED FROM TIME TO TIME BY
DECLARANT, THE PURCHASE AND SALE AGREEMENT BETWEEN DECLARANT AND
OWNER, OR AS REQUIRED BY THE LIMITED WARRANTY FOR DISPUTES SUBJECT
THERETO) . NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION
SHALL BE DEEMED TO CONSTITUTE A WAIVER OF DECLARANT' S RIGHTS, IF
ANY, TO REQUIRE AN OWNER TO COMPLY WITH THE PROCEDURES OF THE
CALDERON ACT (SET FORTH AT CIVIL CODE SECTION 6000 et seq. ) OR TO
ENFORCE ANY PROVISION OF LAW RELATING TO THE RESOLUTION OF DISPUTES
OTHER THAN SECTION 914 OF THE CALIFORNIA CIVIL CODE. EACH OWNER, ON
BEHALF OF ITSELF AND ITS SUCCESSORS IN INTEREST, AGREES TO PROVIDE
COPIES OF THE DOCUMENTS MAKING UP DECLARANT' S ALTERNATIVE NON-AD-
VERSARIAL PROCEDURES TO ANY SUBSEQUENT PURCHASER OF SAID OWNER' S
CONDOMINIUM.
Section 13 . No Enhanced Protection Agreement . As noted
earlier, no provisions herein, and no representations or warran-
ties, expressed or implied, by Declarant, constitute, or shall be
interpreted to constitute, an "enhanced protection agreement, " as
defined in Section 901 of the California Civil Code .
Section 14 . Corporation Property Claims. Notwithstanding
any provision to the contrary regarding resolution of disputes
regarding the Corporation Property, at such time as an Owner is
elected or appointed to the Board, the Declarant shall be deemed to
have relinquished control over the Corporation' s ability to
initiate claims regarding the Corporation Property.
Section 15 . Maintenance Standards . Each Owner and the
Corporation shall maintain everything he/she/it/they are obligated
to maintain in a manner consistent with the provisions herein and
in conformance with any maintenance obligations and schedules
(i . e . , procedures, standards, and/or schedules for the maintenance
50018.154-24590.FCM 051816 -1 3 7-
and operation of the Condominium and/or Corporation Property which
may be provided to said Owner and/or Corporation by Declarant, as
such procedures, standards, and/or schedules may be updated and
revised as appropriate) , product manufacturer' s maintenance
guidelines/recommendations, and commonly accepted maintenance
standards . Unless otherwise provided in such maintenance obliga-
tions and schedules, each Owner and the Corporation shall determine
the level and frequency of maintenance of his or her Condominium
and Corporation Property, as appropriate .
Section 16 . Agent . Declarant and each Owner acknowledge
that the following individual ( "Agent" ) is currently Declarant' s
agent for notice of claims pursuant to the pre-arbitration dispute
resolution procedures (e.g. , nonadversarial dispute resolution
procedures) adopted by Declarant (notice to Declarant does not
constitute notice of a claim, or any other notice, under California
Civil Code Sections 895 et seq.):
Name : Olson - Huntington Beach 3 , LLC
c/o The General Counsel (Legal Department)
Address : 3010 Old Ranch Parkway, Suite 100
Seal Beach, CA 90740-2751
Section 17 . No Representations or Warranties . No
representations or warranties of any kind, express or implied, have
been given or made by Declarant, or its agents or employees, in
connection with the Project, or any portion thereof, its physical
condition, zoning, compliance with applicable laws, fitness for
intended use, or in connection with the subdivision, sale,
operation, maintenance, cost of maintenance, taxes or regulation
thereof as a condominium project, except as specifically and
expressly set forth in this Declaration or the Limited Warranty,
and except as may be filed by Declarant, from time to time, with
CalBRE.
Section 18 . Exhibits . Except for Exhibit "B" (which is
attached for informational purposes only) , the Exhibits attached
hereto are incorporated by this reference . Notwithstanding any
depiction thereon, the as-built condition by Declarant shall
control . In addition, the Corporation' s maintenance obligation with
respect to the Corporation Property depicted thereon shall commence
when the Corporation levies Assessments applicable to said
Improvements .
Section 19 . Project Disclosures . The following
disclosures are made to facilitate each Owner' s investigation of
the Project prior to purchasing a Condominium in the Project . The
disclosures are not exhaustive, and no warranty or representation
of any kind or nature is made in connection with the disclosures .
The information set forth in the disclosures may change over time .
By acceptance of a deed to a Condominium in the Project, each Owner
acknowledges and agrees that such Owner is responsible for investi-
50018.154-24590.FCM 051816 -1 3 8-
gating all matters of interest to such Owner prior to completing
the purchase of a Condominium in the Project.
(a) Conditions of Approval . The Project is subject
to all terms and conditions set forth in the Entitlements from
City, including, without limitation, the City' s conditions for
the approval of the tentative map of Tract No . 17930 and
development of the Project . Neither this Declaration nor any
contract of sale, lease, or other written document or any
means or method shall be established, or shall attempt to
establish, any requirement, restriction, or limitation on the
Declarant, or any person, individual or entity, which would
operate, directly or indirectly, to prevent or preclude any
other developers of the Property or Project, or any person,
individual, or entity, in complying with any applicable
conditions for the approval of the tentative map and develop-
ment of the Project or other City ordinances, rules, policies,
or regulations .
(b) Prohibition Against Certain Interior Modifica-
tions : Owners are strictly prohibited from making any
modifications (whether structural or otherwise) to the
interior of any Condominium Unit that would in any manner
alter or impact any fire, life, and safety mechanisms as well
as any sound attenuation measures installed by Declarant
and/or Declarant' s agents and representatives .
(c) Noise . Each Owner will experience noise,
odors, fumes, light, and other adverse impacts associated with
but not limited to, use of the Corporation Property or
Condominium, and as a result of living in close proximity to
neighbors . These adverse impacts include, without limitation,
noise generated by plumbing fixtures and appliances that use
water (e.g. , toilets, sinks, bathtubs, showers, dishwashers,
washing machines) , televisions, radios, stereo systems,
computers, human voices, walking on hard surfaces, the
movement of furniture and people, children crying and playing,
animal noises (e .g. , dogs barking) , the use and maintenance of
landscaping and recreational facilities, air conditioners,
exhaust systems and vents, electrical transformers, air
conditioning condensers, maintenance and repair activities,
and other activities, and odors and fumes generated by the
smoking of cigarettes, cigars, pipes, barbecues, fireplaces,
cooking, cleaning, and other activities . Living in a
Condominium within a densely populated community entails
living in close proximity to other persons, with limitations
on solitude. Notwithstanding whether or not floors , walls, and
ceilings have been constructed and designed to meet applicable
building codes, the buildings containing the Condominium Units
and the individual Condominium Units therein are not sound
and/or odor proof, and noise and/or odors from adjacent
Condominiums, the Corporation Property, and surrounding areas
50018.154-24590.FCM 051816 -1 3 9-
will be heard and smelled. Residents may hear the sound of
garage doors opening at all hours of the day and night,
including, without limitation, the mornings and early evenings
when residents leave and return. Residents of the Project may
not engage in behavior or activities in their Condominiums or
Corporation Property which impair other residents' quiet
enjoyment of their Condominiums . The Project is currently
located in an area in which considerable noise and light from
traffic, traffic lights (e.g. , traffic light at intersection
of Newland and Slater, etc . ) , churches (e .g. , a church is
currently located next to the southern border of the Project,
etc . ) , air traffic (e.g. , from Long Beach Airport, John Wayne
International Airport, helicoptors, etc. ) , construction
activities, truck deliveries, trash pick-up, and other
activities will be generated.
(d) Affordable Housing Requirements . As required
by the City, the following two (2) Condominium Units in the
Project will be subject to affordable housing restrictions
limiting the sale and/or occupancy of the homes to moderate
income households : Condominium Unit Nos . 1 and 13 , as
depicted on the Condominium Plan. An affordable housing
agreement shall be recorded against the foregoing Condominium
Units in the County Recorder' s Office . Other homes subject to
affordable housing restrictions may be located in'the vicinity
of the Project .
(e) Power Poles and Lines . Underground and
overhead electric transmission and distribution lines and
transformers are located in and near the Project . Power lines
and transformers produce low-frequency electromagnetic fields
( "ELF-EMF" ) when operating. Declarant makes no warranties or
representations regarding any powers poles or lines,
including, without limitation, any warranties or
representations regarding the operation, maintenance, or
safety of, or the risks or hazards associated with, such power
poles and lines . Each Owner is responsible for investigating
this matter to the extent the Owner deems appropriate prior to
completing the purchase of a Condominium in the Project .
(f) NOTICE OF AIRPORT IN VICINITY. The Project is
located in the vicinity of one or more airports (e.g. , Long
Beach Airport, John Wayne International Airport, etc . ) .
Although the Project is not currently located within what is
known as an airport influence area (i .e. , an area in which
current or future airport-related noise, overflight, safety,
or airspace protection factors may significantly affect land
uses or necessitate restrictions on those uses as determined
by an airport land use commission) , the Project may be subject
to some of the annoyances or inconveniences associated with
proximity to airport operations (for example: noise,
vibration, or odors) . Individual sensitivities to those
SOC18.154-24590.FCM 051816 -1 4 Q-
annoyances can vary from person to person. Each Owner may
wish to, and should, consider what airport annoyances, if any,
are associated with the Project before the Owner completes his
or her purchase of a Condominium in the Project and determine
whether such location and airport annoyances are acceptable .
Declarant makes no warranties or representations of any kind
or nature, express or implied, regarding any airport,
including, without limitation, any warranties or
representations regarding the potential for any expansion or
change in use of the airport, types of aircraft permitted at
the airport, flight paths of aircraft, or hours of operation
of the airport . Each Owner is responsible for investigating
such matters to the Owner' s full and complete satisfaction
prior to completing the purchase of a Condominium in the
Project .
(g) Right to Farm. The Project is located within
one mile of real property currently used for agricultural
purposes . Declarant is providing the following notice
pursuant to state law:
MANDATORY NOTICE:
NOTICE OF RIGHT TO FARM
This property is located within one mile of a farm or
ranch land designated on the current county-level GIS
"Important Farmland Map, " issued by the California
Department of Conservation, Division of Land Resource
Protection. Accordingly, the property may be subject to
inconveniences or discomforts resulting from agricultural
operations that are a normal and necessary aspect of
living in a community with a strong rural character and
a healthy agricultural sector. Customary agricultural
practices in farm operations may include, but are not
limited to, noise, odors, dust, light, insects, the
operation of pumps and machinery, the storage and
disposal of manure, bee pollination, and the ground or
aerial application of fertilizers, pesticides, and
herbicides . These agricultural practices may occur at
any time during the 24-hour day. Individual
sensitivities to those practices can vary from person to
person. You may wish to consider the impacts of such
agricultural practices before you complete your purchase .
Please be advised that you may be barred from obtaining
legal remedies against agricultural practices conducted
in a manner consistent with proper and accepted customs
and standards pursuant to Section 3482 .5 of the Civil
Code or any pertinent local ordinance.
(h) Best Management Practices . The Corporation is
required to comply with and implement the Best Management
50018.154-24590.FCM 051816 -1 4 1-
i
Practices that pertain to the Corporation Property (i . e. , the
particular elements of the storm drain system described and
delineated as maintained by the Corporation in this
Declaration) . Each Owner is required to comply with and
implement the Best Management Practices that pertain to the
Owner' s Condominium Unit and Exclusive Use Corporation
Property (e.g. , private yard areas, patios, porches, decks,
etc . , including any and all storm water drainage facilities
therein not specifically described and/or depicted as
maintained by the Corporation in this Declaration) . Each
Owner is also responsible for reviewing and understanding the
Water Quality Management Plans applicable to the Owner' s
Condominium Unit and Exclusive Use Corporation Property (e .g. ,
private yard areas, patios, porches, decks, etc . ) and the
provisions of this Declaration relating thereto (e.g. , the
Articles of this Declaration entitled "Use Restrictions" and
"Environmental and Other Disclosures and Requirements" , etc . ) .
(i) Waiver. Each Owner, for and on behalf of
himself and the members of his family, his tenants, lessees,
guests and invitees, expressly approve all of the foregoing
conditions and risks, and waives all causes of action and
covenants not to sue the City, the Declarant, and their
respective directors, officers, members, employees, agents and
consultants for any damages or injuries which may arise from
or relate to any of such conditions and/or risks .
Section 20 . Priorities and Inconsistencies . If there
are conflicts or inconsistencies between this Declaration and
either the Articles or By-Laws of the Corporation, the terms and
provisions of this Declaration shall prevail, save and except for
the provisions of the Articles of Incorporation.
Section 21 . Declarant' s Representative . Commencing on
the date on which Declarant no longer has an elected representative
on the Board, and continuing until the date that is ten (10) years
after the date of the last close of escrow in the Project, the
Declarant shall be entitled to access (in real time) any website
maintained by the Corporation or its property manager for the
Project and to view all documents posted on the website, shall be
entitled to inspect and copy the Corporation' s books and records,
including, without limitation, maintenance records, on the same
terms and conditions as a Member (i . e. , as set forth in the By-
Laws, the person requesting copies of any records must reimburse
the Corporation for its direct and actual costs in providing
records) , and shall be entitled to have a representative ( "Declar-
ant' s Representative" ) present at all meetings of the Members and
the Board, except when the Board adjourns to executive session.
For so long as Declarant' s Representative is entitled to attend
such meetings, the Corporation and/or Members, as appropriate,
shall provide Declarant with written notice of all meetings as if
Declarant were a Member, and the Corporation shall provide
50018.154-24590.FCM 051816 -1 4 2-
Declarant' s Representative with the proposed minutes and approved
minutes of the meetings of Owners, the Board and committees on the
same terms and conditions as it would any Member (i . e. , the person
requesting records must reimburse the Corporation for its direct
and actual costs in providing records) . The Declarant' s
Representative shall be present in an advisory capacity only and
shall not be a Board member or .have any right to vote on matters
coming before the Board or any liability as a Board member.
However, the Declarant' s Representative shall have the right to
speak at all meetings (except when the Board adjourns to executive
session) , and the Secretary shall accurately note any statements
made by the Declarant in the minutes of the meetings . This Section
may not be amended without the prior written approval of the
Declarant, which approval may be withheld in Declarant' s sole and
absolute discretion.
Section 22 . Compliance with Requirements of FHLMC, FNMA,
and VA/FHA. Notwithstanding any provision of this Declaration,
the Declarant and Corporation shall comply with all requirements of
FHLMC, FNMA, and/or VA/FHA established by those entities for
condominium projects for so long as any of such agencies continue
to be a Mortgagee, Owner, insurer or guarantor of a Mortgage in the
Project, including, without limitation, the following requirements :
a. All Improvements on the Corporation
Property shall be substantially completed before
such Corporation Property is conveyed to the
Corporation, notwithstanding any regulation of
CalBRE allowing such conveyance to occur upon the
posting of appropriate bonds .
[signatures to follow]
50018.154-24590.FCM 051816 -1 4 3-
IN WITNESS WHEREOF, Declarant has executed this instru-
ment on the day and year first above written.
"DECLARANT"
OLSON - HUNTINGTON BEACH 3 , LLC,
a California limited liability company
By: IN TOWN COMMUNITIES, LLC
a California limited liability
company
Its : Sole Member
By: OLSON URBAN HOUSING, LLC
a Delaware limited liability
company
Its : Member
By: IN TOWN LIVING, . INC. ,
a Delaware corporation
Its : Managing Member
BY:
Name :
Title.
BY:
Name :
Title :
50018.154-24590.FCM 051816 -1 4 4-
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document, to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss .
COUNTY OF )
On 2 0l_, before me,
Name and Title of Officer
personally appeared
who proved to me on the basis of satisfactory evidence to be the
person (s) whose name (s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies) , and that by his/her/their
signature (s) on the instrument, the person(s) or the entity upon
behalf of which the person (s) acted executed the instrument .
I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct .
WITNESS my hand and official seal . '
Signature of Notary Public
[SEAL]
50018.154-24590.FCM 051816
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
Property shall mean and refer to that certain real property located
in the City of Huntington Beach, County of Orange, State of
California, more particularly described as :
Lot 1 of Tract No. 17930, as shown on a Map recorded in Book
^, Pages A through ^, inclusive, of Miscellaneous Maps,
Records of Orange County, California.
The Condominium Units within the Property are Condominium Units 1
through 13 , inclusive, as described and/or depicted on the
Condominium Plan recorded on , 201 , as
Instrument No. in the Official Records of the Orange
County Recorder' s Office.
50018.154-24590.FCM 051816 �-
EXHIBIT "B"
SAMPLE FORM OF LIMITED WARRANTY
(see attached)
50018.154-24590.FCM 051816 1
EXHIBIT "C"
MAINTENANCE MATRIX
ITEMS CORPORATION OWNER' S
RESPONSIBILITY RESPONSIBILITY
Residential None . Owner maintains the entirety
living element of the residential living ele-
of Condominium. ment of the Condominium, in-
cluding, without limitation,
all interior doors and their
hardware, interior wall sur-
faces, drywall , cabinets,
floor coverings , ceilings,
permanent fixtures, applianc-
es, electrical outlets and
switches, toilets, smoke de-
tectors (including periodic
testing and replacement of
batteries) and washing machine
water hoses .
Residential The Corporation Owner maintains the structural
Living Element periodically integrity and interior
entry door paints the ex- surfaces, the handle, latches,
terior surface weatherstripping, locking
of the entry mechanism, door jamb, kick
door when it plates and the screen door and
paints the paints the door, including any
buildings . touch up painting on the exte-
rior surface if necessary be-
fore the Corporation' s period-
ic painting.
Sliding glass None. The Owner maintains all por-
doors and tions of these items, includ-
screen doors ing the locking mechanism,
serving the weatherproofing, sheathing,
Condominium frame and any glass . The Own-
Unit er also paints, stains, seals
or otherwise weatherproofs the
exterior surfaces .
Fireplace in The Corporation The Owner maintains the inte-
the Residential maintains the rior surface of the chimney
Living Element exterior and and firebox, including period-
(if any) structure of ically removing soot, main-
the chimney. tains any gas pipes, logs and
other contents of the firebox,
and maintains the flue.
50018.154-24590.FCM 051816 Page 1 of 7
Windows in the None . Each Condominium Owner is re-
Residential sponsible for cleaning all
Condominium windows in his Condominium and
Unit maintaining all portions of
the windows including the
frame, screens, locking mech-
anism for the screen, weather
stripping, caulking, panes and
sheathing.
Light Fixtures The Corporation The Owner maintains the light
and Fans in maintains all fixtures and fans actuated
Residential light fixtures from switches controlled from,
Condominium and fans not or separately metered to, the
Unit actuated from Owner' s Condominium Unit.
switches con-
trolled from,
or separately
metered to, an
Owner' s Condo-
minium Unit .
Exclusive Use The Corporation The Owner sweeps the patio
Corporation maintains the regularly and keeps it (and
Property Patio painted the drainage devices in the
(if applicable) surfaces of the patio) free from debris and
patio fences . reasonably protected against
damage . The Owner maintains
any hose bibs, electrical
outlets and switches . The
Owner maintains the structure
of the patio and any tile,
paver or other surface
material installed by Owner on
the surface of the patio.
Exclusive Use The Corporation The Owner maintains all other
Corporation maintains aspects of the yard,
Property Yard portions of the including, without limitation,
(if applicable) fences landscaping, irrigation, and
enclosing the drainage devices .
yards as
depicted on
Exhibit "G"
hereto.
50016.154-24590.FCM 051816 Page 2 of 7
Exclusive Use The Corporation The Owner sweeps the deck
Corporation maintains any regularly and keeps it free
Property Deck original from debris and reasonably
(if applicable) waterproofing protected against damage .The
installed by Owner maintains any hose bibs,
Declarant on electrical outlets and
the floor of switches .
the deck, the
railings
enclosing the
deck, and all
structural
elements of the
,deck.
Exclusive Use The Corporation The Owner sweeps the porch
Corporation maintains the regularly and keeps it (and
Property Porch railings the drainage devices in the
(if applicable) enclosing the porch) free from debris and
porch, if reasonably protected against
applicable. damage . The Owner maintains
any hose bibs, electrical
outlets and switches . The
Owner maintains the structure
of the porch and any tile,
paver or other surface
material installed by Owner on
the surface of the porch.
Garage of Resi- The Corporation Owner maintains the interior
dential Condo- maintains the of the garage, including,
minium Units exterior paint- without limitation, the
ed surface and interior painted surface of
the structure the garage door, hinges,
of the garage garage door opener, door jamb
door (however, and trim, weatherstripping,
all repairs to all other doors within the
exterior doors garage, all interior wall
and garage surfaces, drywall, ceilings,
doors, includ- permanent fixtures, applianc-
ing the struc- es, and electrical outlets and
tural mainte- switches .
nance thereof,
shall be at the
sole expense of
the respective
Owner unless
otherwise
agreed to by
the Board) .
50018.154-24590.FCM 051816 Page 3 of 7
Telephone wir- None . The Owner maintains.
ing exclusively
serving a Con-
dominium
Utilities Serv- The Corporation The Owner maintains the utili-
ing Residential maintains the ties serving his Condominium
Condominium utilities serv- that are separately metered.
Unit . ing the Common This includes all electric and
Property and gas lines serving the Condo-
all utilities minium that are not serviced
which serve by the gas company (i . e . , from
individual Con- within the Residence to the
dominiums but meter) , all water lines
which are sub- exclusively serving the Con-
ject to a com- dominium (i . e. , from within
mon meter the Residence to the meter) ,
(e.g. , common all waste water drain lines
domestic water, and sewer laterals that
fire water, and exclusively serve the
common sewer Condominium (i .e. , from within
lines and me- the Residence to the point of
ters) . connection o the private
common sewer line within the
Project , the air conditioning
system exclusively serving the
Condominium, the solar system
exclusively serving the
Condominium (if any) , the
water pressure regulator (if
it services an individual
Condominium unit) , all plumb-
ing outlets and fixtures,
furnace, ducts (HVAC, dryer,
stove, oven) , and circuit bre-
akers exclusively serving the
Condominium.
50018.154-24590.FCM 051816 Page 4 of 7 -
Roof, Exterior The Corporation None .
Walls, and Str- maintains the
ucture of Buil- structural com-
dings . ponents of the
buildings, in-
cluding, with-
out limitation,
exterior perim-
eter walls,
bearing walls,
columns, fire-
rated walls,
roofs, roof
tiles, slabs,
foundations,
exterior stairs
(if any) , rail-
ings, the stru-
ctural floors
(but not the
floor cover-
ings) , includ-
ing the struc-
tural floors
separating the
different sto-
ries of the
buildings, an
inspection and
preventive pro-
gram for the
prevention and
eradication of
infestation by
wood destroying
pests and or-
ganisms, exte-
rior finished
surfaces, gut-
ters, and down-
spouts) .
50018.154-24590.FCM 051816 Page 5 of 7
Fire Sprinkler The Corporation None .
Heads, Fire maintains .
Sprinkler Sys-
tem, Fire Alarm
System, Fire
Extinguishers
In the Corpora-
tion Property,
and Other Com-
mon Fire Pre-
vention Equip-
ment Installed
in Corporation
Property.
Private The Corporation None .
Vehicular maintains .
Drives, Common
Parking Areas,
Common Walk-
ways .
Common Trash The Corporation The Owner places his trash in
Bins . maintains . garbage bags or other contain-
ers approved by the City and
deposits them into the common
trash bins . The Owner makes
sure the covers of the common
trash bins are closed after he
or she has finished depositing
his or her trash in the common
trash bins .
Landscaping and The Corporation The Owner maintains any land-
Irrigation maintains all scaping (including potted
landscaping and plants) and irrigation system
irrigation lo- within his Exclusive Use
cated in the Corporation Property patio,
Corporation yard, deck, and porch areas .
Property and
any potted
plants placed
on the Corpora-
tion Property
by the Corpora-
tion.
50018.154-24590.FCM 051816 Page 6 of 7
Private Storm The Corporation Unless otherwise described
Drainage System maintains those and/or depicted as maintained
portions of the by the Corporation on Exhibit
private storm "D" hereto, each Owner
drainage system maintains all aspects of the
described private drainage system
and/or depicted located within the Owner' s
on Exhibit "D" Exclusive Use Corporation
hereto. Property patio, yard, deck,
and porch areas (including,
without limitation, keeping
the drains free of debris) .
Perimeter Walls The Corporation Each Owner maintains those
maintains the portions of the block walls in
Project perime- his yard area described and/or
ter walls depicted as maintained by the
described Owner on Exhibit "G" hereto.
and/or depicted
on Exhibit "G"
hereto.
50018.154-24590.FCM 051816 Page 7 of 7
EXHIBIT D
CORPORATION MAINTAINED PRIVATE STORM DRAIN SYSTEM
NEWLAND STREET
STORM DRAIN 4" PVC DRAIN
INFILTRATION SYSTEM 8" PVC
— R PRIMARY SETTLING — R .CHAMBER STORM DRAIN
r
12"X 12"
DRAIN INLET s so 12"X12"
(TYP) 4" 0 SCH 40 PVC DRAIN INLET
(TYP)
UNIT 1 UNIT 1 HOUSE GARAGE UNIT 13 UNIT 13
RAC E HOUSE Q,
12"X12" N 12"X12"
DRAIN INLET DRAIN INLET
(TYP) UNIT 2 UNIT 2 (TYP)
6 HOUSE GARAGE UNIT 12 UNIT 12
GARAGE HOUSE
8" PVC 12" HDPE
STORM DRAIN STORM DRAIN
UNIT 3 UNIT 3 UNIT 11 UNIT 11
HOUSE GARAGE GARAGE HOUSE
0
m
12"X12" 8" PVC
DRAIN INLET STORM DRAIN
(TYP) UNIT 4 UNIT 4 N
HOUSE GARAGE UNIT 10 NIT 10
GARAGE HOUSE
48" HDPE
STORM DRAIN 12"X12"
DRAIN INLET
0
12" HDPE (TYP)
STORM DRAIN
0
JUNCTION
STRUCTURE rL
8" PVC
UNIT 5 UNIT 6 UNIT 7 UNIT 8 UNIT 9 STORM DRAIN
GARAGE GARAGE GARAGE GARAGE GARAGE
a�
12"X12"
DRAIN INLET UNIT 6 UNIT 7 UNIT 8 UNIT 9
(TYP) UNIT 5 HOUSE HOUSE HOUSE HOUSE
HOUSE
0 12"X12"
N 12"X12" 12"X12" DRAIN INLET
8" PVC DRAIN INLET DRAIN INLET (TYP)
STORM DRAINL (TYP) (TYP)
■so o so oso so NO SCALE
R R
LEGEND: ALL STORM DRAIN FACILITIES SHOWN HERON ARE TO BE MAINTAINED BY THE CORPORATION
WITH THE EXCEPTION OF STORM DRAIN LINES LOCATED IN PRIVATE YARDS WHICH ARE TO BE
HDPE = HIGH DENSITY POLYETHYLENE MAINTAINED BY THE HOMEOWNER. THOSE PORTIONS OF THE STORM DRAIN LOCATED IN
R = PROPERTY LINE PRIVATE YARDS SERVING MORE THAN ONE OWNER SHALL BE JOINTLY MAINTAINED. PRIVATE
TYP = TYPICAL YARD AREA DRAIN INLETS TO BE MAINTAINED BY HOMEOWNERS. THE CORPORATION SHALL
SD = STORM DRAIN MAINTAIN THE STORM DRAIN FACILITIES DEPICTED HERON AND/OR DESCRIBED IN THE
® = DRAIN INLET DECLARATION. THE DEPICTIONS HERON ARE FOR ILLUSTRATIVE PURPOSE ONLY AND THE
AS—BUILY CONDITION BY DECLARANT SHALL BE CONTROLLING.
EXHIBIT "E"
CORPORATION MAINTAINED PRIVATE SEWER
N EWLAN D STREET
_TJca_ R _ —
8" PVC SEWER ;
UNIT 1 UNIT 1 UNIT 13 UNIT 13
HOUSE GARAGE GARAGE HOUSE
UNIT 2 UNIT 2
HOUSE GARAGE UNIT 12 UNIT 12
GARAGE HOUSE
6" PVC LATERAL
(TYP)
UNIT 3 UNIT 3 UNIT 11 UNIT 11
HOUSE GARAGE cn GARAGE HOUSE
UNIT 4 UNIT 4 UNIT 10 NIT 10
HOUSE GARAGE GARAGE HOUSE
a: I aj
I
I
8" PVC SEWER SEWER
MANHOLE I 6" PVC LATERAL
SS S
UNIT 5 UNIT 6 UNIT 7 UNIT 8 UNIT 9
GARAGE GARAGE GARAGE GARAGE GARAGE
UNIT 6 UNIT 7 UNIT 8 UNIT 9
UNIT 5 HOUSE HOUSE HOUSE HOUSE
HOUSE
NO SCALE
R.
LEGEND:
————— ———— 6" PVC SEWER LATERAL MAINTAINED BY OWNER
ABBREVIATIONS: —R— PROPERTY LINE
MH = MANHOLE ss 8" PVC MAIN MAINTAINED BY CORPORATION
PVC = POLYVINYL CHLORIDE THE CORPORATION SHALL MAINTAIN THE SEWER FACILITIES DEPICTED HEREON
TYP = TYPICAL AND/OR DESCRIBED IN THE DECLARATION. THE DEPICTIONS HEREON ARE FOR
ILLUSTRATIVE PURPOSE ONLY AND THE AS—BUILT CONDITION BY DECLARANT
SHALL BE CONTROLLING.
EXHIBIT F
CORPORATION MAINTAINED WATER SYSTEM
— (8"VV) (8"M (8"M T (8"VV) (8"W)
NEWLAND STREET 3
3" METE
4" DCDA
s"F s"FW "FW LL 6" DCDA
4"FW 4"FW 4"FW
4" DCDA
UNIT 1 UNIT 1 UNIT 13 UNIT 13
HOUSE GARAGE "' I GARAGE HOUSE
LLI
a�
UNIT 2 UNIT 2
HOUSE GARAGE I UNIT 12 UNIT 12
GARAGE HOUSE
UNIT 3 UNIT 3 LL I• UNIT 11 UNIT 11
HOUSE GARAGE "I GARAGE HOUSE
UNIT 4 L UNIT 4 I UNIT 10 NIT 10
HOUSE GARAGE J GARAGE HOUSE
i
2" AIR & VACUUM
RELEASE VALVE 2" AIR & VACUUM
RELEASE VALVE
4"�I 4'W 4 4' 4'W 1•W
4"
UNIT 5 UNIT 6 UNIT 7 UNIT 8 UNIT 9
GARAGE GARAGE GARAGE GARAGE GARAGE
a�
UNIT 6 UNIT 7 UNIT 8 UNIT 9
UNIT 5 HOUSE HOUSE HOUSE HOUSE
HOUSE
-�x-emmm
NO SCALE
R R
LEGEND:
R = PROPERTY LINE - - - 2" DOMESTIC WATER THE DEPICTION HERON ARE FOR
TYP TYPICAL 4"W 4" DOMESTIC WATER ILLUSTRATIVE PURPOSE ONLY AND
4"FW 4" FIRE WATER THE AS-BUILT CONDITION BY
DCDA = DOUBLE CHECK DETECTOR ASSEMBLY 6"FW 6" FIRE WATER DECLARANT SHALL BE CONTROLLING
EXHIBIT G
CORPORATION MAINTAINED WALLS AND FENCES
NEWLAND STREET
BACKYARD
WALL (TYP) Ll BACKYARD
WALL (TYP)
UNIT 1 UNIT 1 UNIT 13 UNIT 13
HOUSE GARAGE GARAGE HOUSE J
J
W
UNIT 2 UNIT 2
HOUSE GARAGE UNIT 12 UNIT 12 �w
w BACKYARD GARAGE HOUSE
a WALL (TYP)
U
BACKYARD
U `o WALL (TYP)
UNIT 3 UNIT 3 UNIT 11 UNIT 11
HOUSE GARAGE GARAGE HOUSE
BACKYARD BACKYARD
WALL (TYP) WALL (TYP)
UNIT 4 UNIT 4 UNIT 10 NIT 10
HOUSE GARAGE GARAGE HOUSE
PATIO CMU PAT10 CMU
WALL (TYP) WALL (TYP)
LL I I -
rL
3
w
J UNIT 5 UNIT 6 UNIT 7 UNIT 8 UNIT 9 0
GARAGE GARAGE GARAGE GARAGE GARAGE
w � �
� U
lar UNff 7 UNIT 8UNIT 9 PATIO CMU HOUSE HOUSE HOUSE BACKYARD
f_4
WALL (TYP) WALL (TYP)
PATIO CMU BACKYARD BACKYARDWALL (TYP) WALL (TYP) WALL (TYP)FL �Z
L CMU PERIMETER WALL NO SCALE
LEGEND: THE CORPORATION SHALL MAINTAIN THE FENCES & WALLS DEPICTED
CMU = CONCRETE MASONRY UNIT (BLOCK) HEREON AND/OR DESCRIBED IN THE DECLARATION. THE DEPICTIONS
R = PROPERTY LINE HERON ARE FOR ILLUSTRATIVE PURPOSES ONLY AND THE AS-BUILT
TYP = TYPICAL CONDITION BY DECLARANT SHALL BE CONTROLLING.
EXHIBIT '°H"
NO PARKING AREAS
NEWLAND STREET
UNIT 1 UNIT 1 UNIT 13 UylHOUSE GARAGE GARAGE H
ed
UNIT 2 UNIT 2 UNIT 12 UNIT 12 I
HOUSE GARAGE GARAGE HOUSE
a�
UNIT 11 UNIT 11
UNIT 3 UNIT 3 GARAGE HOUSE
HOUSE GARAGE
! UNIT 4 UNIT 4 UNIT 10 UNIT 10
HOUSE GARAGE GARAGE HOUSE
UNIT5 UNIT 6 UNIT 7 UNIT8 UNIT 9
GARAGE GARAGE GARAGE GARAGE GARAGE
e'
I UNIT 5 UNIT 6 UNIT 7 UNIT 8 UNIT 9
HOUSE HOUSE t- HOUSE HOUSE HOUSE
I I
NO SCALE
ABBREVIATIONS:
—R_ PROPERTY LINE NOTE: THE DEPICTIONS HEREON ARE FOR
ILLUSTRATIVE PURPOSE ONLY AND THE
nkk2m NO PARKING AREA AS—BUILT CONDITION BY DECLARANT
SHALL BE CONTROLLING.
EXHIBIT
LANDSCAPE MAINTENANCE OBLIGATIONS
NEWLAND STREET
UNIT 1 UNIT 1 "HOUSE
HOUSE GARAGE
a�
UNIT 2 UNIT 2
HOUSE GARAGE UNIT 12 UNIT 12
GARAGE HOUSE
a� UP
UNIT 3 UNIT 3 UNIT 11 UNIT 11
HOUSE GARAGE GARAGE HOUSE
UNIT 4 UNIT 4 UNIT 10 NIT 10
HOUSE GARAGE GARAGE HOUSE
T
rL
19
UNIT 5 UNIT 6 UNIT 7 UNIT 8 UNIT 9
GARAGE GARAGE GARAGE GARAGE GARAGE
a�
a�
UNIT 6 UNIT 7 UNIT 8 UNIT 9
UNIT 5 HOUSE HOUSE HOUSE HOUSE
HOUSE
NO SCALE
LEGEND: THE DEPICTION HERON ARE FOR
R = PROPERTY LINE ILLUSTRATIVE PURPOSE ONLY AND
LANDSCAPE AND IRRIGATION IMPROVEMENT AREA THE AS-BUILT CONDITION BY
MAINTAINED BY CORPORATION DECLARANT SHALL BE CONTROLLING
CONSENT OF LIENHOLDER AND
SUBORDINATION OF LIEN
The undersigned beneficiary under that certain Deed of
Trust recorded on 1 201 , as Instrument No.
, in the Records of Orange County, California hereby
consents to the recordation of the attached "Declaration of
Covenants, Conditions and Restrictions, and Reservation of
Easements for Monarch Walk" ( "Declaration" ) , and agrees that the
lien of the Deed of Trust shall be junior and subordinate and
subject to the Declaration and to any easements to be conveyed to
Monarch Walk Corporation in accordance with the terms of the Decla-
ration, and to any amendments or modifications to the Declaration
which may be required to comply with any law, statute or regulation
of any public agency or any requirement of FNMA, FHLMC, of VA/FHA.
DATED: "LTENHOLDER"
WELLS FARGO NATIONAL BANK
National Association
By:
Name :
Title:
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document, to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document .
STATE OF CALIFORNIA )
ss .
COUNTY OF )
On 201_, before me, ,
Name and Title of Officer
personally appeared ,
who proved to me on the basis of satisfactory evidence to be the
person (s) whose name (s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies) , and that by his/her/their
signature (s) on the instrument, the person(s) or the entity upon
behalf of which the person (s) acted executed the instrument .
I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct .
WITNESS my hand and official seal .
Signature of Notary Public
[SEAL]