HomeMy WebLinkAboutParcel Map No. 2008-118 - Order No. 3027104 - 7501 Yorktow City ®f Huntington Beach
2000 Main Street ♦ Huntington Beach, CA 92648
(714) 536-5227 ♦ www.huntingtonbeachca.gov
Office ®f the City Clerk
` Joan L. Flynn, City Clerk
May 15, 2015
First American Title
Attn: Hugo Tello
1250 Corona Pointe Court, Suite 200
Corona, CA 92879
(951) 256-5883
Attn: Hugo Tello, Title Officer
Re: Parcel Map No. 2008-118—Order No. 3027104— 7501 Yorktown
The City Engineer of the City of Huntington Beach approved Parcel Map No. 2008-118
and authorized the release of said map for processing by the County. In addition, please record
the enclosed `Declaration of Covenants, Conditions, Restrictions and Reservation of Easements
for Moonstone.'
After recording, please return a duplicate Mylar, 2 prints, and a digital file disk of the Parcel Map
to Bob Milani, Senior Civil Engineer, Department of Public Works, P.O. Box 190, Huntington
Beach, CA 92648.
9an L. Flynn, CIVIC
City Clerk
JF:pe
Attachments
Received by: �/ CLERK'S OFFICE RETAINS COPY FOR FILE
Date:
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Name of Company Phone
Sister Cities: Anjo,Japan ♦ Waitakere,New Zealand
NOTICE OF COMPLIANCE WITH CONDITIONS
ON TRACT/PARCEL MAP AND AUTHORIZATION
FOR RELEASE FOR RECORDING
TO: CITY CLERK DATE: e, I �3
FROM: PLANNING & BUILDING DEPARTMENT
TRACT NO.
PARCEL MAP NO.
PARK AND RECREATION FEES PAID: YES S 3, 5-1 l ❑NO
DEVELOPER: Wtl* r C-OR-4 til�jrv�s�d
for:
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Director of Planning and Building
GVLANNING\FINAL MAPS\Forms\CITY CLERK RELEASE FORM-2014.docx
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°�d CITY OF HUNTINGTON BEACH
INTERDEPARTMENTAL COMMUNICATION
TO: Patty Esparza, Deputy City Clerk
FROM: Bob Milani, Senior Civil Engineer
DATE: May 13, 2015
SUBJECT: Parcel Map 2008-118
Address is 7501 Yorktown Avenue
THE ATTACHED ORIGINAL PARCEL MAP IS READY FOR RECORIDATION.
Please Contact the Title Company listed below and request that they pick-up the attached
Parcel Map. At the time of pick-up please forward a copy of this memo and the attached
Parcel Map and request that they obtain all necessary County of Orange signatures and
record it for their client.
Title Company name: First American Title
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. 3027104
Client: Ramond Dorame
MasterCraft Homes Group, LLC
Address: 20201 SW Birch St, Suite 100
Newport Beach, CA 92660
(949) 252-1122 Ext. 132
Engineer: Walden & Associates, David Bacon, R.C.E.
(949) 660-0110
Regarding Property at 7501 Yorktown Avenue
Note: To the City Clerk's Office: A Planning Department Release Slip must be
received prior to release of this Parcel Map to the Title Company for recording.
Upon the City Clerks receipt of the recorded copy, please send a copy of the Parcel Map to:
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 714-967-0845
2. HB Planning Department Attn: Jill Arabe 714-374-5357
3. HB Public Works Department Attn: Bob Milani 714-374-1735
RECORDING REQUESTED BY:
FIRST AMERICAN TITLE COMPANY
WHEN RECORDED,MAIL TO:
JACKSONIDeMARCOITIDUS
JPECKENPAUGH (ADC)
2030 Main Street, Suite 1200
Irvine, CA 92614
(Space Above for Recorder's Ilse)
DECLARATION OF COVENANTS, CONDITIONS,RESTRICTIONS
AND
RESERVATION OF EASEMENTS
FOR
MOONSTONE
NOTE: CERTAIN DISPUTES ARISING UNDER THIS DECLARATION, INCLUDING
DISPUTES CONCERNING THE CONSTRUCTION OR DESIGN OF THE
COMMUNITY, SHALL BE SUBMITTED TO JUDICIAL REFERENCE OR BINDING
ARBITRATION, IN ACCORDANCE WITH SECTION 10.3.
If this document contains any restriction based on race, color, religion, sex,
gender, gentler identity, gentler expression, sexual orientation, familial statues,
marital status, disability, genetic information, national origin, source of
income as defined in California Government Code Section I2955(p), or
ancestry, that restriction violates state and federal fair housing laws and is
void, and may be removed pursuant to California Government Code Section
12956.2. Lawful restrictions under state and federal law on the age of
occupants in senior housing or housing for older persons shall not be
construed as restrictions based on familial status.
APPROVED AS TO FORM
r
p I ! 6177-120122\CCRS\1197966.7
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Michael Gates,City Attorney
TABLE OF CONTENTS
DECLARATION OF COVENANTS, CONDITIONS,YESTRICTIONS
AND Y2ESERVATION OF EASEMENTS
FOR
MOONSTONE
Page
ARTICLE 1 DEFINITIONS AND INTERPRETATION.....................................................2
1.1 Definitions.........................................................................................................2
1.2 Interpretation.....................................................................................................6
ARTICLE 2 MAINTENANCE COVENANTS AND USE RESTRICTIONS..................... 8
2.1 Repair and Maintenance....................................................................................8
2.2 Single-Family Dwelling.................................................................................. 11
2.3 Further Subdivision......................................................................................... 12
2.4 Leasing and Rental.......................................................................................... 12
2.5 Resale.............................................................................................................. 12
2.6 Business and Commercial Activities.............................................................. 12
2.7 Nuisances........................................................................................................ 14
2.8 Signs................................................................................................................ 15
2.9 Parking and Vehicular Restrictions................................................................. 15
2.10 Animal Regulations......................................................................................... 17
2.11 Trash................................................................................................................ 18
2.12 Owner-Installed Improvements....................................................................... 18
2.13 Mechanics' Liens............................................................................................ 18
2.14 Drainage.......................................................................................................... 18
2.15 View Obstructions........................................................................................... 19
2.16 Solar Energy Systems ..................................................................................... 19
2.17 Temporary Buildings...................................................................................... 19
2.18 Prohibited Residential Uses.........................................................................:.. 19
2.19 Mineral Exploration and Extraction................................................................ 19
2.20 Easements........................................................................................................ 19
2.21 Pollutant Controls ...........................................................................................20
2.22 Fire Sprinklers.................................................................................................20
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TABLE OF CONTENTS
(continued)
Page
2.23 Floor Load Limitations ...................................................................................20
ARTICLE3 DISCLOSURES..............................................................................................21
3.1 No Representations or Warranties......................................................I............21
3.2 Association Not Subject to Davis-Stirling Act or BRE..................................21
3.3 Surrounding Uses............................................................................................22
3.4 Methane; Vapor Barrier System .....................................................................22
3.5 Former Oil Wells In and Around the Community..........................................22
3.6 Seismic Activity; Earthquake Fault Zone.......................................................23
3.7 Electric Power Lines, Communications Facilities and Human Health...........23
3.8 Property Lines.................................................................................................24
3.9 Utility Improvements......................................................................................24
3.10 Mold................................................................................................................25
3.11 Supplemental Real Property Taxes.................................................................25
3.12 Megan's Law Notice.......................................................................................26
3.13 No Enhanced Protection Agreement...............................................................26
3.14 Additional Provisions......................................................................................26
ARTICLE 4 THE ASSOCIATION.....................................................................................27
4.1 General Duties And Powers............................................................................27
4.2 Specific Duties And Powers ...........................................................................27
4.3 Standard of Care,Non-Liability......................................................................30
4.4 Membership ....................................................................................................32
4.5 Voting Rights..................................................................................................33
ARTICLE 5 PROPERTY EASEMENTS AND RIGHTS...................................................34
5.1 Easements........................................................................................................ 34
5.2 Right of Entry..................................................................................................36
ARTICLE 6 ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS...........37
6.1 Personal Obligation to Pay Assessments ........................................................37
6.2 Association Maintenance Funds .....................................................................37
6.3 Purpose of Assessments..................................................................................37
6.4 Waiver of Use.................................................................................................37
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TABLE OF CONTENTS
(continued)
Page
6.5 Limits on Annual Assessment Increases.........................................................37
6.6 Annual Assessments .......................................................................................38
6.7 Capital Improvement Assessments.................................................................39
ARTICLE 7 INSURANCE..................................................................................................39
7.1 Duty to Obtain Insurance; Types....................................................................39
7.2 Waiver of Claim Against Association.............................................................40
7.3 Right and Duty of Owners to Insure...............................................................41
7.4 Notice of Expiration Requirements.................................................................41
7.5 Trustee For Policies.........................................................................................41
7.6 Actions as Trustee...........................................................................................41
7.7 Annual Insurance Review...............................................................................42
7.8 Required Waiver.............................................................................:...............42
ARTICLE 8 DESTRUCTION OF IMPROVEMENTS......................................................42
ARTICLE 9 RIGHTS OF MORTGAGEES........................................................................43
9.1 General Protections.........................................................................................43
9.2 Additional Rights............................................................................................43
ARTICLE 10 ENFORCEMENT AND DISPUTE RESOLUTION......................................44
10.1 Enforcement of Governing Documents ..........................................................44
10.2 Delinquent Assessments .................................................................................45
10.3 Disputes with Declarant Parties......................................................................45
ARTICLE 11 DURATION AND AMENDMENT............................................................... 52
11.1 Duration........................................................................................................... 52
11.2 Termination and Amendment......................................................................... 52
ARTICLE 12 GENERAL PROVISIONS ............................................................................. 54
12.1 Mergers or Consolidations..............................................................................54
12.2 No Public Right or Dedication........................................................................ 54
12.3 Notices............................................................................................................. 55
12.4 Constructive Notice and Acceptance.............................................................. 55
ARTICLE 13 DECLARANT'S RIGHTS AND RESERVATIONS..................................... 55
13.1 Construction Rights......................................................................................... 55
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TABLE OF CONTENTS
(continued)
Page
13.2 Sales and Marketing Rights ............................................................................55
13.3 Creating Additional Easements.......................................................................56
13.4 Architectural Rights........................................................................................56
13.5 Developer Exemption......................................................................................56
13.6 Assignment of Rights......................................................................................56
13.7 Amendment.....................................................................................................56
13.8 Participation in Association............................................................................56 .
13.9 Declarant Approval of Actions.......................................................................57
SUBORDINATION
EXHIBIT A—ARTICLES OF INCORPORATION OF THE ASSOCIATION
EXHIBIT B—BYLAWS OF THE ASSOCIATION
EXHIBIT C—DRAWING SHOWING APPROXIMATE LOCATIONS OF
ASSOCIATION MAINTENANCE AREAS IN THE COMMUNITY
EXHIBIT D—DRAWING SHOWING APPROXIMATE LOCATION OF SHARED
DRIVE
EXHIBIT E—DRAWING SHOWING APPROXIMATE LOCATION OF CLUSTERED
MAILBOX EASEMENT
EXHIBIT F—DRAWING SHOWING APPROXIMATE LOCATION OF
ABANDONED OIL WELLS
EXHIBIT G—ANNUAL BMP OPERATION AND MAINTENANCE SELF
CERTIFICATION FORM
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DECLARATION OF COVENANTS, CONDITIONS,RESTRICTIONS
AND RESERVATION OF EASEMENTS FOR
MOONSTONE
THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND
RESERVATION OF EASEMENTS is made by 25 MOONSTONE PARTNERS, LLC, a
California limited liability company. The capitalized terms used in the Preamble below are
defined in Article 1.
PREAMBLE:
A. Declarant is the owner of real property (the "Community's located in the City of
Huntington Beach, County of Orange, State of California, described as follows:
Parcels 1, 2 and 3 of Parcel Map No. 2008-118, as shown on a map
filed in Book , at Pages , inclusive, of Parcel Maps,
in the Office of the Orange County Recorder.
B. Declarant intends to impose mutually beneficial restrictions under a general plan
for subdividing, maintaining, improving and selling the Lots in the Community for the benefit of
all the Lots. However, the Community is not a "planned development," as defined in California
Civil Code Section 4175, or a "common interest development" within the meaning of California
Civil Code Section 4100.
C. The general plan of development will include forming an owners association
under the California Non-Profit Mutual Benefit Corporations Law, to which will be assigned the
powers of(1) maintaining, insuring and administering the Association Maintenance Areas, (2)
administering and enforcing the Governing Documents, and (3) collecting and disbursing the
Assessments and charges hereinafter created. The Association is not an "association" as
described in California Civil Code Section 4080, and is not subject to the requirements imposed
on "associations" by the Davis-Stirling Common Interest Development Act (Division 4, Part 5 of
the California Civil Code at Sections 4000 to 6150). The Members of the Association will be the
Owners in the Community, as further provided in Article 4 herein.
D. The Community is to be held, conveyed, encumbered, leased, used and improved
subject to covenants, conditions, restrictions and easements in"this Declaration, all of which are
in furtherance of a plan for subdividing, maintaining, improving and selling the Lots in the
Community. All provisions of this Declaration are imposed as equitable servitudes on the
Community. All covenants, conditions, restrictions and easements in this Declaration shall run
with and burden the Community, and be binding on and for the benefit of all of the Community
and all Persons acquiring any interest in the Community.
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. Unless otherwise expressly provided, the following words and
phrases when used in this Declaration have the following meanings.
1.1.1 Annual Assessment. Annual Assessment means a charge against the
Owners and their Lots representing their share of the Common Expenses.
1.1.2 Articles of Incorporation. Articles of Incorporation or Articles means
the Articles of Incorporation of the Association currently in effect as of the time of Recordation
hereof. A copy of the Articles of Incorporation is attached for informational purposes as Exhibit
A; provided, however, that the Association may from time to time amend the Articles of
Incorporation without need to amend this Declaration. In such event, the amended Articles of
Incorporation shall control over the version attached hereto.
1.1.3 Association. Association means Moonstone.Maintenance Association,
a California nonprofit mutual benefit corporation (formed pursuant to the California Non-Profit
Mutual Benefit Corporations Law or successor statutes), and its successors-in-interest.
1.1.4 Association Maintenance Area. Association Maintenance Area
means those Improvements in Lots or other real property that are not owned in fee by the
Association but which are designated for maintenance by the Association as set forth in this
Declaration. The Association Maintenance Areas include the Shared Drive; guest parking spaces
on the Shared Drive, the structural and support components of all Perimeter Walls and retaining
walls(including pilasters, caissons, footing, cap, masonry, wood,tubular steel and wrought iron),
and all exterior surfaces thereof; Declarant installed signage and entry monuments; drainage
facilities within and under the Shared Drive; the private water lines and sewer main located
beneath the Shared Drive; the mailbox cluster within the Community; parkway landscaping,
including street trees, along Yorktown Avenue; and certain other hardscape and landscaping
within the Community; all as approximately located on Exhibit C attached hereto. The actual
locations and dimensions of the Association Maintenance Areas shall be defined by the physical
locations of the Improvements as built by Declarant or rebuilt substantially in accordance with
the original plans(if available).
1.1.5 Association Maintenance Funds. Association Maintenance Funds
means the accounts created for Association receipts and disbursements pursuant to Article 6.
1.1.6 Board or Board of Directors. Board or Board of Directors means the
Association's Board of Directors.
1.1.7 Budget. Budget means a written, itemized estimate of the
Association's income and Common Expenses prepared pursuant to the Bylaws.
1.1.8 Bylaws. Bylaws means the Bylaws of the Association as currently in
effect. A copy of the form of Bylaws to be adopted by the Board is attached for informational
purposes as Exhibit B, provided that the form that is actually adopted by the Board shall control
in the event of any conflict with the version attached hereto, without the need to amend this
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Declaration. Moreover, the Association may from time to time amend the Bylaws without need
to amend this Declaration. In such event, the amended Bylaws shall control over the version
attached hereto.
1.1.9 California Non-Profit Mutual]Benefit Corporation Law. California
Non-Profit Mutual Benefit Corporation Law means Title 1, Division 2, Part 3 (commencing at
Section 7110) of the California Corporations Code, and any successor statute.
1.1.10 City. City means the City of Huntington Beach, California, and its
various departments, divisions, employees and representatives.
1.1.11 Close of Escrow. Close of Escrow means the date on which a deed is
Recorded conveying a Lot to an Owner other than Declarant.
1.1.12 Common Expenses. Common Expenses means those expenses for
which the Association is responsible under this Declaration. Common Expenses include the
actual and estimated costs of and reserves for maintaining, managing and operating the
Association Maintenance Areas, as well as the costs and fees attributable to managing and
administering the Association, utilities (including water) serving the Association Maintenance
Areas, compensating accountants, attorneys and employees, insurance covering the Association
Maintenance Areas and the Directors, officers and agents of the Association (as specified in this
Declaration), and bonding the members of the Board.
1.1.13 Community. Community means the real property described in Recital
A of the Preamble. Any references in this Declaration to the Community are references to the
Community as a whole and to portions thereof.
1.1.14 County. County means Orange County, California, and its various
departments,divisions, employees and representatives.
1.1.15 Declarant. Declarant means 25 MOONSTONE PARTNERS, LLC, a
California limited liability company, its successors and any Person to which it shall have
assigned any of its rights by an express written assignment. As used in this Section, "successor"
means a Person who acquires Declarant or substantially all of Declarant's assets by sale, merger,
reverse merger, consolidation, sale of stock or assets, operation of law or otherwise. Declarant
shall determine in its sole discretion the time, place and manner in which it discharges its
obligations and exercises the rights reserved to it under this Declaration.
1.1.16 Declaration. Declaration means this instrument as currently in effect.
1.1.17 Family. Family means natural individuals, related or not, who live as a
single household in a Residence.
1.1.18 Fannie Mae. Fannie Mae means the Federal National Mortgage
Association, a government-sponsored private corporation established pursuant to Title VIII of
the Housing and Urban Development Act of 1968 and its successors.
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1.1.19 FHA. FHA means the Federal Housing Administration of the United
States Department of Housing and Urban Development and its successors.
1.1.20 FHFA. FHFA means the Federal Housing Finance Agency,
established pursuant to the Housing and Economic Recovery Act of 2008.
1.1.21 First Mortgage. First Mortgage means a Mortgage with first priority
over other Mortgages on a Lot.
1.1.22 First Mortgagee. First Mortgagee means the Mortgagee of a First
Mortgage.
1.1.23 Fiscal Year. Fiscal Year means the fiscal accounting and reporting
period of the Association.
1.1.24 Freddie Mac. Freddie Mac means the Federal Home Loan Mortgage
Corporation created by Title II of the Emergency Home Finance Act of 1970 and its successors.
1.1.25 Ginnie Mae. Ginnie Mae means the Government National Mortgage
Association administered by the United States Department of Housing and Urban Development
and its successors.
1.1.26 Governing Documents. Governing Documents means this
Declaration,the Articles of Incorporation, Bylaws and Rules and Regulations.
1.1.27 Improvement. Improvement means the Shared Drive, walls,
landscaping, drainage facilities, water and sewer pipes and any structure and any appurtenance
thereto. The Board may identify additional items that are Improvements.
1.1.28 Include, Including. Whether capitalized or not, include and including
means "includes without limitation" and "including without limitation," respectively.
1.1.29 Lot. Lot means any residential Lot or parcel of land shown on any
Recorded subdivision map or Recorded parcel map of the Community.
1.1.30 Maintain, Maintenance. Whether capitalized or not, maintain and
maintenance mean "maintain, repair and replace" and "maintenance, repair and replacement,"
respectively; provided however, that maintain or maintenance shall not include repair and
replace(ment) where the context or specific language of this Declaration provides another
meaning.
1.1.31 Maintenance Guidelines. Maintenance Guidelines means any current
written guidelines, setting forth procedures and standards for the maintenance and operation of
the Lots and Association Maintenance Areas. Maintenance Guidelines may be provided by
Declarant or by any governmental agency. Maintenance Guidelines include any maintenance
manual initially prepared at Declarant's direction and containing recommended frequency of
inspections and maintenance activities pertaining to a Residence, Lot or Association
Maintenance Area.
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1.1.32 Manager. Manager means the Person retained by the Association to
perform management functions of the Association as limited by the Governing Documents and
the terms of the agreement between the Association and the Person.
1.1.33 Map. Map means Parcel Map No. 2008-118, as described in Recital A
of the Preamble.
1.1.34 Membership. Membership means the voting and other rights,
privileges, and duties established in the Governing Documents for members of the Association.
1.1.35 Mortgage. Mortgage means any Recorded document, including a deed
of trust,by which a Lot or Lots is hypothecated to secure performance of an obligation.
1.1.36 Mortgagee. Mortgagee means a Person to whom a Mortgage is made,
or the assignee of the Mortgagee's rights under the Mortgage by a recorded instrument. For
purposes of this Declaration, the term Mortgagee shall include a beneficiary under a deed of
trust.
1.1.37 Mortgagor. Mortgagor means a person who has mortgaged his
property. For purposes of this Declaration, the term Mortgagor shall include a trustor under a
deed of trust.
1.1.38 Notice and Hearing. Notice and Hearing means written notice and a
hearing before the Board as provided in the Bylaws.
1.1.39 Official Records. Official Records means the Official Records of the
County.
1.1.40 Operating Fund. Operating Fund means that portion of the Common
Expenses allocated for the daily operation of the Association.
1.1.41 Owner. Owner means the Person or Persons, including Declarant,
holding fee simple interest to a Lot. The term "Owner" includes sellers under executory
contracts of sale but excludes Mortgagees. The term "Owner" may be expanded in a
Supplemental Declaration to include other Persons.
1.1.42 Party Wall. Party Wall means any wall or fence that separates
adjacent Lots. Party Walls are not Perimeter Walls.
1.1.43 Perimeter Wall. Perimeter Wall means any wall, retaining wall, or
fence that is constructed by Declarant at the perimeter of the Community and is maintained
partially by the Association, as depicted on Exhibit C attached hereto. Perimeter Walls are not
Party Walls.
1.1.44 Person. Person means a natural individual or any legal entity
recognized under California law. When the word "person" is not capitalized, the word refers
only to natural persons.
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1.1.45 Record or File. Record or File means, with respect to any document,
the entry of such document in Official Records.
1.1.46 Reserve Fund. Reserve Fund means that portion of the Common
Expenses allocated (a) for the future repair and replacement of, or additions to, structural
elements and other major components of Association-maintained Improvements, and (b)
amounts necessary to cover the deductibles under all insurance policies maintained by the
Association.
1.1.47 Residence. Residence means the dwelling unit constructed on a Lot,
excluding the garage area, which is designed and intended for use and occupancy as a residence
by a single Family.
1.1.48 Right to Repair Law. Right to Repair Law means Division 2, Part 2,
Title 7 (commencing with Section 895) of the California Civil Code.
1.1.49 Right to Repair Law Claim. Right to Repair Law Claim means any
claim brought by one or more Owners or by the Association against one or more Declarant
Parties (as defined in Section 10.3) on any design or construction defect matters that are
governed by the Right to Repair Law.
1.1.50 Rules and Regulations. Rules and Regulations or "Rules" means the
current rules and regulations for the Community.
1.1.51 Shared Drive. Shared Drive means the asphalt drive and other street
Improvements as shown on Exhibit D attached hereto. The approximate location of the Shared
Drive is also shown on the Map.
1.1.52 Supplemental Declaration. Supplemental Declaration means an
instrument Recorded by Declarant against all or a portion of the Community in order to
supplement, modify, or clarify conditions, covenants, restrictions or easements established under
this Declaration, if any. A Supplemental Declaration may affect one or more Lots. A
Supplemental Declaration may modify this Declaration only as it applies to the property
encumbered by the Supplemental Declaration.
1.1.53 VA. VA means the Department of Veterans Affairs of the United
States of America and any department or agency of the United States government which
succeeds to the VA's function of issuing guarantees of notes secured by Mortgages on residential
real estate.
1.2 INTERPRETATION.
1.2.1 General Rules. This Declaration shall be liberally construed to
effectuate its purpose of creating a uniform plan for subdividing, maintaining, improving and
selling the Community. 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. Any reference in this Declaration to time of performance of
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obligations or to elapsed time means consecutive calendar days, months or years, as applicable,
unless otherwise expressly provided.
1.2.2 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. Exhibits C, D, E
and F attached to this Declaration are incorporated in this Declaration by this reference. The
Articles of Incorporation and the Bylaws that are attached as Exhibits A and B are attached for
informational purposes only. Either may be amended from time to time without having to amend
this Declaration. In such event, the amended version shall supersede the version attached hereto.
The locations and dimensions of any Improvements depicted on the Exhibits attached hereto are
approximate only and the as-built location and dimension of any such Improvements shall
control.
1.2.3 Priorities and Inconsistencies. If there are conflicts or inconsistencies
between this Declaration and the Articles of Incorporation, Bylaws, or Rules and Regulations,
then the provisions of this Declaration shall prevail; however, the conflicting documents shall be
construed to be consistent with the Declaration to the extent possible.
1.2.4 Supplemental Declarations. Declarant may, concerning any Lot
owned by Declarant, Record one (1) or more Supplemental Declarations, which may (a)
supplement this Declaration with such additional covenants, conditions, restrictions, easements
and land uses as Declarant may deem appropriate for the real property described therein or
affected thereby, and (b) clarify Declarant's intent as to covenants, conditions, restrictions,
easements and land uses in the real property described therein or affected thereby. The
provisions of any Supplemental Declaration may impose such additional, different or more
restrictive conditions, covenants, restrictions, land uses and limitations as Declarant may deem
advisable, taking into account the particular requirements of the real property described therein
or affected thereby. If there is a conflict between any Supplemental Declaration and the
Declaration, the Supplemental Declaration shall control concerning the real property described in
such Supplemental Declaration.
1.2.5 Severability. The provisions of this Declaration are independent and
severable. If for any reason, any provision of this Declaration becomes invalid, partially invalid,
unenforceable, illegal, null and void, or against public policy, or if for any reason, a court of
competent jurisdiction determines that any provision of this Declaration is invalid, partially
invalid, unenforceable, illegal, null and void, or against public policy, the validity and
enforceability of the remaining provisions of this Declaration shall remain in effect to the fullest
extent permitted by law.
1.2.6 Statutory References. All references made in this Declaration to
statutes are to those statutes as currently in effect or to subsequently enacted replacement
statutes.
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ARTICLE 2
MAINTENANCE COVENANTS AND USE RESTRICTIONS
The Community shall be held, used and enjoyed subject to the following restrictions and
subject to the exemptions of Declarant set forth in the Governing Documents.
2.1 REPAIR AND MAINTENANCE.
2.1.1 By Owners.
(a) The Lot. Each Owner shall maintain all of the Owner's Lot
(except for any Improvements that are designated for maintenance by the Association), and the
Residence and all other Improvements on the Owner's Lot in a clean, sanitary and attractive
condition and as directed in the Governing Documents and all applicable Maintenance
Guidelines. Owner-maintained Improvements shall include the following:
(i) Landscaping. All landscaping that is visible from other
Lots shall be properly maintained, evenly cut, evenly edged, free of bare or brown spots, debris
and weeds above the level of the lawn. All trees and shrubs shall be trimmed so they do not
impede pedestrian traffic and root-pruned to prevent root damage to the Shared Drive, driveways
and structures.
(ii) Perimeter Walls. Each Owner shall maintain the surface
area of the Residence-facing side of that portion of any Perimeter Wall which encloses such
Owner's Lot. If a portion of the surface area of the Residence-facing side of a Perimeter Wall
which encloses such Owner's Lot is damaged, such Owner must promptly repaint or replaster the
surface area of the Residence-facing side of such Perimeter Wall using the same design and
identical or substantially equivalent materials as used in the original construction.
(iii) PartWalls. The Party Walls in the Community are the
walls or fences separating adjacent Lots. To the extent not inconsistent with the provisions of
this Section, the general rules of law regarding Party Walls and liability for property damage due
to negligence or willful acts or omissions shall apply, including without limitation California
Civil Code Section 841.
(1) Sharing of Repair and Maintenance. The cost of
reasonable repair and maintenance of a Party Wall shall be shared equally by the Owners of the
Lots connected by such Party Wall. However, each Owner shall be solely responsible for
repainting the side of any Party Wall facing the Owner's Lot.
(2) Destruction by Fire or Other Casualty. If a
Party Wall is destroyed or damaged by fire or other casualty, any Owner whose Lot is affected
thereby may restore it, and the Owner of the other Lot affected thereby shall contribute equally
to the cost of restoration thereof, without prejudice. However, such an Owner may call for a
larger contribution from the other under any rule of law regarding liability for negligence or
willful acts or omissions.
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(3) Negligent and Willful Acts. Notwithstanding any
other provision of this Article, an Owner who by his negligence or willful act causes a Party
Wall to be exposed to the elements, to deteriorate, or to require repair or replacement shall bear
the whole cost of furnishing the necessary protection against such elements or the necessary
repairs or replacement.
(4) Right to Contribution Runs With Land. The right
of any Owner to contribution from any other Owner under this Article is appurtenant to the land
and passes to such Owner's successors in title.
(iv) Mailbox. Each Owner is responsible for replacing the
door, locking mechanism, key and other separate components of the Owner's mailbox located
within the mailbox cluster in the Community.
(v) Fire Sprinklers. Owners are responsible for maintaining
the fire sprinklers within their Residence in good working order at all times.
(vi) Sewer System Lateral. Each Owner is responsible for
the maintenance and repair of the sewer system lateral serving the Owner's Lot.
(vii) Private Water Lines. Each Owner is responsible for
maintaining that portion of the private water line which serves the Owner's Residence and
extends from the back of the curb and gutter within the Shared Drive to the Residence.
2.1.2 By Association. The Association shall maintain everything it is
obligated to maintain in a clean, sanitary and attractive condition reasonably consistent with the
level and frequency of maintenance reflected in the current adopted Budget; provided, however,
that the Association shall at all times at least perform the level and frequency of maintenance
specified in the applicable Maintenance Guidelines.
(a) Commencement of Obligations. The Association's obligation
to maintain the Association Maintenance .Areas shall commence on conveyance of such
Association Maintenance Areas to the Association by maintenance easement. Declarant shall
maintain the Association Maintenance Areas prior to the commencement of the Association's
obligation to maintain the Association Maintenance Areas.
(b) Acceptance of Association Maintenance Areas. The
Association must accept maintenance responsibility for each portion of the Association
Maintenance Areas when maintenance responsibility is tendered by Declarant, whether by
easement or otherwise, and the Association shall execute each deed and any accompanying
escrow instructions if requested to do so by Declarant, and it shall execute any bond exonerations
when presented if the bonded obligations are satisfied (if applicable). No Owner shall interfere
with the exercise of the foregoing obligations by the Association, or with the rights or obligations
of Declarant.
(c) Maintenance Requirements for Certain Improvements.
Unless specifically provided in any Maintenance Guidelines, the Board shall determine, in its
sole discretion, the level and frequency of maintenance of the Association Maintenance Areas.
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The Association shall be responsible for maintaining the Association Maintenance Areas and for
all other maintenance not provided by the Owners pursuant to Section 2.1.1 above or by a
governmental entity.
(i) Landscaping in General. All Association-maintained
landscaping shall be properly maintained, evenly cut, evenly edged, free of bare or brown spots,
debris and weeds above the level of the lawn. All trees and shrubs shall be trimmed so they do
not impede pedestrian traffic and root-pruned to prevent root damage to the Shared Drive,
driveways and structures.
(ii) Ingress and Egress Improvements. The Association
shall maintain all sidewalks, the Shared Drive, ramps and other means of ingress and egress
within the Association Maintenance Areas in accordance with the Governing Documents and
applicable Maintenance Guidelines.
(iii) Mailbox Cluster. The Association shall maintain all
structural and common components of the mailbox cluster located on Parcel 2, and all other
components of the mailbox cluster not designated an Owner maintenance responsibility in this
Declaration.
(iv) Perimeter Walls. The Association is responsible for
maintaining the Association Maintenance Area portions of the Perimeter Walls described in
Section 1.1.4 and depicted in Exhibit C attached hereto.
(v) Private Sewer and Water Lines. The Association shall
maintain all portions of the private sewer main and such portions of the private water lines which
are not designated an Owner maintenance responsibility in this Declaration.
(vi) Additional Items. The Association shall also be
responsible for maintaining any Improvements that a majority of the voting power of the
Association designates for maintenance by the Association. Such Improvements shall be
deemed Association Maintenance Areas and subject to provisions of the Governing Documents
that are applicable to the Association Maintenance Areas.
2.1.3 Inspections. The Board shall periodically cause a compliance
inspection of the Community to be conducted to report any violations of the Governing
Documents. The Board shall also cause condition inspections of the Association Maintenance
Areas and all Improvements thereon to be conducted in conformity 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, to (a) determine whether
the Association Maintenance Areas are being maintained adequately in accordance with the
standards of maintenance established in Section 2.1, (b) identify the condition of the Association
Maintenance Areas and any Improvements thereon, including the existence of any hazards or
defects, and the need for performing additional maintenance, refurbishment, replacement, or
repair or for collecting additional reserves therefor, 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
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activities set forth in any applicable Maintenance Guidelines have been followed and, if not
followed, what corrective steps need to be taken to assure proper inspections and maintenance of
the Association Maintenance Areas. The Board shall keep a record of such determinations in the
Board's minutes. Subject to Section 2.1.4 below, the Board shall keep Declarant fully informed
of the Board's activities under this Section 2.1.3. 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.
2.1.4 Reporting Requirements. The Association shall prepare a report of
the results of the inspection required by Section 2.1.3 (the "Condition Report"). The Condition
Report shall be furnished to Declarant. The report must include at least the following:
(a) a description of the condition of the Association Maintenance
Areas, 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 Association to perform inspections;
(e) a report of the status of compliance with the maintenance,
replacement and repair needs identified in the Condition Reports for preceding years; and
(f) such other matters as the Board considers appropriate.
For a period of ten (10) years after the date of the last Close of Escrow in the
Community, the Board shall also furnish to Declarant (a) each Condition Report performed for
the Board, whenever the inspection described in Section 2.1.3 is performed and for whatever
portion of the Association Maintenance Areas that is inspected, within thirty (30) days after the
completion of such inspection, and (b) the most recent Condition Report prepared for any portion
of the Association Maintenance Areas, no later than the date that is ten (10) days after the
Association receives Declarant's written request.
2.1.5 Damage by Owners. Each Owner is liable to the Association for all
damage to the Association Maintenance Areas that is sustained due to the negligence or willful
act of the Owner, the Owner's Family, tenants or invitees, and any other Persons who derive
their use of the Association Maintenance Areas from the Owner or from the Owner's Family,
tenants or invitees. If a Lot is jointly owned, the liability of its Owners for damage to
Association Maintenance Areas is joint and several, except to the extent that the Association and
the joint Owners have otherwise agreed in writing.
2.2 SINGLE-FAMILY DWELLING. The Residence shall be used as a residential
dwelling for a single Family and for no other purpose.
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2.3 FURTHER SUBDIVISION. Except as otherwise provided in this Declaration,
no Owner may physically or legally subdivide the Owner's Lot in any manner, including
dividing such Owner's Lot into time-share estates or time-share uses. This provision does not
limit the right of an Owner to rent or lease the Lot pursuant to Section 2.4 below.
2.4 LEASING AND RENTAL.
2.4.1 Leasing or Rental to Declarant. Nothing in this Declaration shall be
deemed to prevent an Owner from leasing or renting the Lot to Declarant for use as sales offices,
model home,parking area or for other residential or non-residential purposes.
2.4.2 Leasing or Rental to Non-Declarant Parties. Nothing in this
Declaration shall be deemed to prevent an Owner from leasing or renting the Lot for residential
occupancy by a single Family,provided that: (i) the terms of the lease or rental agreement are set
out in a written lease or rental agreement; (ii) the lease.or rental agreement is expressly made
subject to this Declaration and the other Governing Documents of the Community; (iii) the lease
or rental agreement shall be for a term of not less than thirty (30) days; (iv) the lease or rental
agreement shall limit the number of tenants and occupants to equal to or less than six (6)
Persons; (v) the lessor or landlord shall not provide any services normally associated with
transient occupancy (including hotel, inn, bed &breakfast, vacation rental, time-share or similar
temporary lodging); and (vi) the lease or rental agreement shall provide that all lessees, tenants,
and their Families, agents and invitees are bound by the Governing Documents when present in
the Community, and any violation of the Governing Documents by a lessee, tenant or their
Families, agents or invitees also constitutes a default under the lease or rental agreement.
2.5 RESALE. Nothing in this Declaration shall be deemed to prevent an Owner from
(a) transferring or selling the Lot, either to a single Person, or to more than one (1) Person to be
held by them as tenants-in-common, joint tenants, tenants by the entirety or as community
property.
2.6 BUSINESS AND COMMERCIAL ACTIVITIES.
2.6.1 Generally. No Owner or other occupant of the Community may
undertake any activity in any Lot for any business, commercial or non-residential purposes, nor
for any other purpose that is inconsistent with the Governing Documents. Such purposes include
manufacturing, storage, vending, auctions, vehicle or equipment repair, entering into any lease or
rental agreement under which the Residence would be occupied by numbers of persons in excess
of the maximum occupancy permitted under applicable law, and transient occupancy of the
Residence (such as hotel, inn, bed & breakfast, vacation rental, time-share or similar temporary
lodging). Any lease or rental agreement for a term of fewer than thirty (30) days, and any lease
or rental agreement pursuant to which the lessor provides any services normally associated with
transient occupancy, shall be deemed to be for transient purposes and prohibited under this
Declaration. All of the foregoing activities are prohibited whether they are engaged in full-time
or part-time, whether they are for-profit or non-profit, and whether they are licensed or
unlicensed.
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2.6.2 Exceptions. This Section shall not be interpreted to prohibit any of the
following:
(a) The hiring of employees or contractors to provide maintenance,
construction or repair services that are consistent with the Governing Documents;
(b) Rental or leasing of a Lot to Declarant for use as a sales office,
model home or parking area for any period of time;
(c) Exercise by Declarant of any rights reserved to it under Article
13;
(d) The provision of in-home health care or assisted-living services
to any resident of the Community;
(e) The provision of family home child care services as defined in
California Health and Safety Code Section 1597.40, et seq., so long as such services comply with
all applicable state and local,laws, including licensing, inspection and zoning requirements;
(f) Small home-based service businesses that comply with all of the
following:
(i) The operator of the business lives in the Residence on a
permanent, full-time basis;
(ii) When conducted in the Community, business activities
take place solely inside the Residence;
(iii) The business does not generate in-person visits by
suppliers or clientele;
(iv) The business complies with all laws, regulations and
ordinances applicable to the Community, including zoning,health and licensing requirements;
(v) The business otherwise complies with the Declaration
and is consistent with the residential character of the Community;
(vi) The operator of the business posts no business-related
signage anywhere in the Community,
(vii) There is no visible evidence in the Community of the
business;
(viii) The business complies with all applicable requirements
of the City's zoning code;
(ix) The business does not generate noise or odors that are
apparent outside the Residence; and
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(x) The business does not increase the Association's
liability or casualty insurance obligation or premium.
(g) Other activities that have been determined by governmental
authorities to be consistent with the single-family residential uses in the Community, including,
for example, residential care facilities that are operated in accordance with California Health and
Safety Code Section 1566.5.
2.7 NUISANCES. Noxious or offensive activities are prohibited in the Community
and on any street abutting or visible from the Community. The Board is entitled to determine if
any device, noise, odor, or activity constitutes a nuisance.
2.7.1 Nuisance Devices. Nuisance devices may not be kept or operated in
the Community or on any public street abutting the Community, or exposed to the view of other
Lots. Nuisance devices include the following:
(a) All horns,whistles,bells or other sound devices (except security
devices used exclusively to protect the security of a Residence or a vehicle and its contents);
(b) Noisy or smoky vehicles, power equipment (excluding lawn
mowers and other equipment used in connection with ordinary landscape maintenance), and
Restricted Vehicles (defined below);
(c) Devices that create or emit loud noises or noxious odors;
(d) Construction or demolition waste containers (except as
permitted in writing by the Board);
(e) Devices that unreasonably interfere with television or radio
reception to a Lot;
(f) Plants or seeds infected with noxious insects or plant diseases;
(g) The presence of any other thing in the Community which may
(i) increase the rate of insurance in the Community, (ii) result in cancellation of the insurance,
(iii) obstruct or interfere with the rights of other Owners, (iv) violate any law or provisions of the
Governing Documents, or (v) constitute a nuisance or other threat to health or safety under
applicable law or ordinance.
2.7.2 Nuisance Activities. Nuisance activities may not be undertaken in the
Community or on any street abutting the Community, or exposed to the view of other Lots
without the Board's prior written approval. Nuisance activities include the following:
(a) Hanging, drying or airing clothing, fabrics or unsightly articles
in any place that is visible from other Lots or public streets;
(b) The creation of unreasonable levels of noise from parties,
recorded music, radios, television or related devices, or live music performance;
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(c) The creation of unreasonable levels noise from a barking dog or
other animal kept in the Community(e.g., chronic daily nuisance barking by a dog over extended
periods of time);
(d) Repair or maintenance of vehicles or mechanical equipment,
except in a closed garage;
(e) Outdoor fires, except in barbecue grills and fire pits designed
and used in such a manner that they do not create a fire hazard;
(f) Outdoor storage of bulk materials or waste materials; and
(g) Any activity which may (i) increase the rate of insurance in the
Community, (ii) result in cancellation of the insurance, (iii) obstruct or interfere with the rights
of other Owners, (iv) violate any law or provisions of the Governing Documents, or (v)
constitute a nuisance or other threat to health or safety under applicable law or ordinance.
2.8 SIGNS. Subject to applicable law, no sign, advertising device or other display of
any kind shall be displayed in the Community or on any public street in or abutting the
Community except:
2.8.1 for each Lot, one (1) sign advertising the Lot for sale or lease that
complies with the following requirements:
(a) the sign has reasonable design and dimensions (which shall not
exceed eighteen(18) inches by thirty(30) inches in size),provided the sign is promptly removed
at the close of the resale escrow or the lease, or upon the Owner's withdrawal of the Lot from the
resale or lease market; and
(b) the sign is of a color, style and location authorized by the
Board.
2.8.2 for other signs or displays authorized by the Board.
2.9 PARKING AND VEHICULAR RESTRICTIONS.
2.9.1 Definitions. The following definitions shall apply to parking and
vehicular restrictions set forth in this Declaration:
2.9.2 Authorized Vehicle. An "Authorized Vehicle" is an automobile, a
passenger van designed to accommodate ten (10) or fewer people, a motorcycle, or a pickup
truck having a manufacturer's rating or payload capacity of one (1) ton or less. The Association
has the power to identify additional vehicles as Authorized Vehicles in the Rules and
Regulations in order to adapt this restriction to other types of vehicles that are not listed above.
2.9.3 Restricted Vehicles. The following vehicles are "Restricted
Vehicles:" (a) large commercial-type vehicles (for example, stake bed trucks, tank trucks, dump
trucks, step vans, and concrete trucks), (b)buses, limousines or vans designed to accommodate
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more than ten (10) people, (c)inoperable vehicles or parts of vehicles, (d) aircraft, (e) boats,jet
skis and other water craft, (f) trailers (for example, trailers designed for horses, boats,
motorcycles or other equipment or materials), (g)motor homes and recreational vehicles (for
example, fifth-wheels, folding camping trailers, travel trailers, but not including van conversions
and truck campers), (h) any vehicle or vehicular equipment deemed a nuisance by the
Association, and(i) any other vehicle that is not classified as an Authorized Vehicle. If a vehicle
qualifies as both an Authorized Vehicle and a Restricted Vehicle, then the vehicle is presumed to
be a Restricted Vehicle, unless the vehicle is expressly authorized in writing by the Association.
The Association has the power to identify additional vehicles as Restricted Vehicles in the Rules
and Regulations to adapt this restriction to other types of vehicles that are not listed above.
2.9.4 Shared Drive. All Lots in the Community are served by the Shared
Drive constructed on portions of the Lots in the approximate locations as shown on Exhibit D
attached hereto, as well as the Map. By acceptance of a deed to a Lot in the Community, each
Owner understands and accepts that the Shared Drive is solely to be used for access to and from
such Owner's Residence. Subject to Section 2.9.5(c) below, the Shared Drive may not be used
for the parking of any vehicle. No Owner shall unreasonably interfere with another Owner's
exercise of easement rights over the Shared Drive. Each Owner shall be responsible for the cost
of repair of damage to the Shared Drive to the extent caused by such Owner, or such Owner's
Family, tenants or invitees. Shared Drive Improvements shall be replaced with Improvements
composed of substantially the same materials as the original installed by Declarant.
2.9.5 Parking Restrictions.
(a) Restricted Vehicles. No Restricted Vehicle may be parked,
stored or kept in the Community except for periods of two (2) hours or less in any 24-hour period
during loading, unloading, or emergency repairs, unless such Restricted Vehicle is kept in the
backyard or sideyard areas of a Lot and such Restricted Vehicle is properly screened from view
from all other portions of the Community. The Board, in its sole discretion, shall have the power
to determine whether a Restricted Vehicle parked on an Owner's Lot is properly screened from
view from all other portions of the Community. If the Board determines, in its sole discretion,
that a Restricted Vehicle is not properly screened from view from all other portions of the
Community, the Owner of such Lot that includes such Restricted Vehicle shall either arrange for
the Restricted Vehicle to be removed from the Community, or take whatever reasonable
measures required by the Board to properly screen the Restricted Vehicle from the view of all
other portions of the Community. A resident may also park a Restricted Vehicle in a garage so
long as the garage is kept closed and the presence of the Restricted Vehicle does not prevent at
least one(1)Authorized Vehicle from being parked in the garage at the same time.
(b) Garage Parking. Each Owner shall at all times ensure that the
garage physically accommodates at least the number of Authorized Vehicles for which it was
originally constructed by Declarant. The garages shall be used for parking of vehicles and
storage of personal property only. No garage may be used for any dwelling, commercial,
recreational, or other purpose.
(c) Guest Parking. Guest parking spaces in the Shared Drive are
identified on Exhibit D attached hereto and are for temporary use by invitees of residents only.
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No resident of the Properties may park any vehicle or leave any other property in any guest
parking space. Guest parking spaces are unreserved and unassigned, and they are available on a
strict first-come-first-served basis. Unless more restrictive rules are promulgated by the Board,
no guest may occupy the same guest parking space more than 24 hours in any seven-day period.
2.9.6 Repair, Maintenance and Restoration. No Person may repair,
maintain or restore any vehicle in the Community, unless the work is conducted in the garage.
However, no Person may carry on in any portion of the Community any vehicle repair,
maintenance or restoration business.
2.9.7 Enforcement. The Board has the right and power to enforce all
parking and vehicle use regulations applicable to the Community in accordance with California
Vehicle Code Section 22658 or other applicable laws. The City may enforce all applicable laws
and ordinances with respect to parking in the Community.
2.9.8 Regulation and Restriction by Board. The Board has the power to:
(a) establish additional rules and regulations concerning parking in the Association Maintenance
Areas; (b) prohibit any vehicle parking, operation, repair, maintenance or restoration activity in
the Community if it determines in its sole discretion that the activity is a nuisance; and (c)
promulgate rules and regulations concerning vehicles and parking in the Community as it deems
necessary and desirable.
2.10 ANIMAL REGULATIONS.
2.10.1 General Restrictions on Numbers and Types of Animals. No
commercial or farm livestock, including poultry, may be kept in the Community. Subject to
local ordinances and such Rules and Regulations as may be adopted by the Board, occupants
may keep in the Residence a reasonable number of household pets so long as there is no external
evidence of their presence in the Community. Notwithstanding the foregoing, no Person may
bring or keep in the Community any animal that is determined by the Board to be a nuisance to
other residents in the Community. The Board has the power and discretion to determine whether
the types or numbers of any animals kept in a Residence are a nuisance, and the Board shall have
the power to abate the nuisance through any legal procedure that is available to the Association.
2.10.2 Animal Keeping Areas. Animals belonging to Owners, tenants,
residents or guests in the Community must be kept in the Residence or in fenced areas of the Lot.
Whenever outside the enclosed area of the Lot, animals must be kept under the control of a
Person capable of controlling the animal either on a leash or other appropriate restraint or carrier.
2.10.3 Owner Responsibility. The Owner of the Lot shall be solely
responsible for ensuring that there is no external evidence of the presence of any animals kept by
the Owner or by the other residents of the Lot (including unreasonable noise or noticeable odor).
Furthermore, each Owner shall be absolutely liable to each and all other Owners, their Families,
tenants, residents and guests for damages or injuries caused by any animals brought or kept in
the Community by an Owner, by members of the Owner's Family, or by the Owner's guests,
tenants or invitees. Each Owner shall immediately remove any excrement or clean other
unsanitary conditions caused by such Owner's animals on any portion of the Community.
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2.11 TRASH. Trash and recyclables must be stored in closed sanitary containers. No
trash, recyclable materials or containers may be stored in view of other Lots, except that closed
containers may be set out at curbside for a reasonable period of time on trash collection days. At
all other times, Owners must either store closed containers in the garage or in the enclosed side
yard of such Owner's Residence, out of sight of other Lots,until scheduled collection times.
2.12 OWNER-INSTALLED IMPROVEMENTS.
2.12.1 Outdoors. The Board has the power to require prior review and
approval of outdoor Improvements installed or constructed on a Lot. No Person shall install or
construct any modifications to the Residence exteriors including room additions, story additions
or other cosmetic or structural changes in the architectural elements of the Residence without the
prior approval of the Board.
2.12.2 Paint. No Person may paint or install other surface finishes on a
Residence, unless the paint or finish used is the same as originally used by Declarant on the
Improvement or the paint or other surface finish is approved by a majority of the Membership.
2.12.3 Indoors. No Owner or other resident of the Community may apply
paint, foil, film, or other reflective material to the glass portion of any window in the Residence.
This Section shall not be interpreted to prohibit the installation of blinds, shutters, curtains and
other similar window coverings.
2.12.4 No Liability. Neither the Declarant nor the Association shall be liable
or responsible for any damage that results from Improvements installed, constructed or modified
by or at the direction of an Owner. Owners are advised to consult and use qualified consultants
and contractors when installing, constructing or modifying Improvements on the Owner's Lot.
2.13 MECHANICS' LIENS. No Owner may cause or permit any mechanic's lien to
be filed against another Owner's Lot for labor or materials alleged to have been furnished or
delivered to such Owner. Any Owner who permits a mechanics' lien to be so filed shall cause
the lien to be discharged no later than five (5) days after receipt of written notice to discharge the
lien is received from the Board or the affected Owner.
2.14 DRAINAGE. No Owner shall interfere with or obstruct the established surface
and subsurface drainage pattem(s) over any other Lot within the Community. In addition, no
Owner shall alter the established surface and subsurface drainage patterns for such Owner's Lot
unless an adequate alternative provision is made for proper drainage. Any alteration of the
established drainage pattern must at all times comply with all applicable local governmental
requirements. For the purpose hereof, "established" drainage is defined as the drainage which
exists at the time of the first Close of Escrow for the sale of the Lot by Declarant, or as shown on
any plan approved by the Board and may consist of earthen or concrete drainage swales, concrete
channels, catch basins with underground drainage pipelines, roof-mounted gutters or downspouts
("Surface/Subsurface Drainage Improvements"). Established drainage includes drainage from
Lot to Lot. Each Owner shall maintain, repair, and replace and keep free from debris or
obstructions all Surface/Subsurface Drainage Improvements, if any, located on the Owner's Lot,
except those for which a public authority or utility is responsible. To the extent such drainage
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improvements are shared, the benefited Owners shall share in the cost of maintenance, repair and
replacement thereof. Each Owner, by accepting a grant deed to his Lot, acknowledges and
understands that in connection with the development of the Community, Declarant may have
installed one or more "drain lines" beneath the surface of such Owner's Lot ("Sub Drains').
The Sub-drains and all appurtenant improvements constructed or installed by Declarant, if any,
provide for subterranean drainage of water from and to various portions of the Community. To
ensure adequate drainage within the Community, it is essential that the Surface/Subsurface
Drainage Improvements and the Sub-Drains, if any, not be modified, removed or blocked
without having first made alternative drainage arrangements. Therefore, no Owner may install,
alter, modify, remove or replace any Surface/Subsurface Drainage Improvements or Sub-Drains
located within such Owner's Lot without first making alternative drainage arrangements
approved by the Board and applicable governmental agencies. Owner-installed irrigation
systems must be installed and maintained to prevent excess runoff and accumulation of surface
water.
2.15 VIEW OBSTRUCTIONS. Each Owner acknowledges that (a) there are no
protected views in the Community, and no Lot is assured the existence or unobstructed
continuation of any particular view, and (b) any construction, landscaping (including the growth
of landscaping) or other installation of Improvements by Declarant or other Owners may impair
the view from any Lot, and each Owner hereby consents to such view impairment.
2.16 SOLAR ENERGY SYSTEMS. In accordance with California Civil Code
Sections 714 and 714.1, each Owner may install a solar energy system (as defined in California
Civil Code Section 801.5), on the Owner's Lot to serve the Owner's domestic needs, so long as
the design and location of the solar energy system meet the requirements of all applicable
governmental ordinances and conforin to applicable zoning district ordinances and the California
Building Standards Code.
2.17 TEMPORARY BUILDINGS. No outbuilding, tent, shack, shed or other
temporary building or Improvement may be placed upon any portion of the Community, either
temporarily or permanently,without the prior written approval of the Board.
2.18 PROHIBITED RESIDENTIAL USES. No garage, trailer, camper, motor
home, recreational vehicle or other vehicle may be used as a residence in the Community, either
temporarily or permanently.
2.19 MINERAL EXPLORATION AND EXTRACTION. No oil drilling, oil, gas or
mineral development operations, oil refining, geothermal exploration or development, quarrying
or mining operations of any kind may be conducted on the Community, nor are oil wells, tanks,
tunnels or mineral excavations or shafts permitted upon the surface of any Lot or within five
hundred (500) feet of the surface of the Community. No derrick or other structure designed for
use in boring for water, oil, geothermal heat or natural gas may be erected, maintained or
permitted on any Lot.
2.20 EASEMENTS. The ownership interests in the Lots are subject to the easements
granted and reserved in this Declaration. Each of the easements reserved or granted herein shall
be deemed to be established upon the recordation of this Declaration and shall henceforth be
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deemed to be covenants running with the land for the use and benefit of the Owners and their
Lots, the Association, the Declarant, and the Owner thereof, and each of their respective
properties, superior to all other encumbrances applied against or in favor of any portion of the
Community. Individual grant deeds to Lots may, but shall not be required to, set forth the
easements specified in this Article or elsewhere in this Declaration.
2.21 POLLUTANT CONTROLS. The Community 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. The City has adopted a water quality management plan
for the Community to reduce the discharge of pollutants to storm water facilities. The water
quality management plan for the Community may impose so-called best management practices
(`BMPs'� to regulate pollutant discharge by Owners. Each Owner shall comply with the
applicable post-construction BMPs. The Association shall include in its annual Budget funding
for implementation, monitoring and maintenance of water quality BMPs and appurtenances per
the approved Water Quality Management Plan (the "WQMP'� which is an engineering study
that identifies potential impacts on nearby water sources caused by the Community's post-
construction water runoff. The approved WQMP has identified Community-related pollutants
and the BMPs required for mitigation on the surrounding areas. The approved WQMP includes
specific maintenance schedules for post-construction operation of the BMPs that may impose
long-term maintenance obligations on the Association and each Owner in the Community. The
BMPs are in addition to any local ordinances established by the City and any rules and
regulations imposed by the Association with regard to discharge of non-storm water into storm
drains. The approved WQMP is hereby incorporated into this Declaration by this reference, and
shall be updated as required by local, state or federal law or regulation and the City of
Huntington Beach Local Implementation Plan ("LIP"). The Association is prohibited from
revising or amending the WQMP except as may be dictated by either local, state or federal law
and the LIP. Additionally, the Association shall either self-certify or receive certification from a
third-party state licensed professional engineer that the annual BMP Operations and Maintenance
outlined in the project WQMP are being complied with by the Association. Such certification
shall be obtained by the Association and the Association shall forward a completed Annual BMP
Operation and Maintenance Self Certification Form, a copy of which is attached hereto as
Exhibit G, to the City annually, no later than September 1 st of that year. In addition, copies of
the NPDES General Permit and any BMPs that are applicable to the Community are on file with
the City.
2.22 FIRE SPRINKLERS. Each Owner shall regularly inspect any fire sprinklers
and smoke detectors that are in the interior of the Residence, arrange for regular pressure testing
of the fire sprinkler system and conduct regular inspection and testing of the smoke detectors.
Keep sources of direct heat away from fire sprinklers. Owners should report any leaking or
malfunctioning fire sprinklers and malfunctioning smoke detectors to a suitable servicer
immediately.
2.23 FLOOR LOAD LIMITATIONS. The second floor of the Residence are
designed to support a forty (40) pound per square-foot live load plus a twelve (12) pound per
square foot dead load as outlined in the Uniform Building Code. Prior to installation of any
heavy furnishings or equipment into the Residence, Owners are required to consult with a
structural engineer or other qualified professional to confirm that the heavy furnishings or
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equipment will not exceed the structural design of the Residence and that the flooring system
(whether on second story floors) will not be overloaded, damaged or otherwise adversely
affected by such heavy furnishings or equipment. Heavy furnishings or equipment include,
without limitation, waterbeds, safes, weight benches, heavy exercise equipment, large fish tanks,
spas and pool tables. Declarant does not accept responsibility for damage resulting from Owners
placing anything in the second floor of the Residence that exceeds this weight limit.
ARTICLE 3
DISCLOSURES
This Article discloses information that was obtained from third-party sources such as
consultants, government and public records. No Person should rely on the ongoing accuracy or
completeness of the information discussed in this Article because many of the matters discussed
below are outside the control of Declarant and the Association. Accordingly, Declarant does not
make any guarantee as to the accuracy or completeness of the matters disclosed below.
Furthermore, Declarant is under no obligation to update or revise any matter disclosed in this
Article. This Article is intended to provide Owners with information known or provided to
Declarant as of the date this Declaration was Recorded, to be used as a starting point for further
independent investigation.
3.1 NO REPRESENTATIONS OR WARRANTIES. No representations or
warranties, express or implied, have been given by Declarant, the Association or their agents, in
connection with the Community, its physical condition, zoning, compliance with law, fitness for
intended use, or in connection with the subdivision, sale, operation, maintenance, cost of
maintenance, taxes or regulation of the Community as a residential development, except as
expressly provided in this Declaration, as provided by Declarant to the first Owner of each Lot,
or provided in the standard warranty required by the VA and FHA.
3.2 ASSOCIATION NOT SUBJECT TO DAVIS-STIRLING ACT OR BRE. As
discussed in Recital C of the Preamble to this Declaration, Declarant does not intend that the
Association be deemed an "association" subject to the Davis-Stirling Common Interest
Development Act (Division 4, Part 5 of the California Civil Code at Sections 4000 to 6150) (the
"Davis-Stirling Act"). While there may be certain similarities between the Association and an
"association" formed pursuant to the Davis-Stirling Act, particularly with respect to the
operation and functionality of the Association, the Association does not (a) own any "common
area," nor do the Owners own an interest as tenants-in-common in "common area," as such terin
is defined in California Civil Code Section 4095; or (b) have the right to enforce the obligations
of the Owners as set forth in the Governing Documents by creating a lien on any of the Lots in
the Community that is subject to non judicial foreclosure in accordance with California Civil
Code Section 5740 or any other provision of the Davis-Stirling Act; with either(a) or (b)being a
pre-requisite for making the Community and Association subject to the requirements of the
Davis-Stirling Act and the jurisdiction of the California Bureau of Real Estate (`BRE"). Hence,
Declarant is not subject to the disclosure requirements of the BRE, nor is Declarant required to
form the Association pursuant to the requirements of the BRE and Davis-Stirling Act. Rather,
the Association has been formed pursuant to the California Non-Profit Mutual Benefit
Corporation Law. As such, the California Non-Profit Mutual Benefit Corporation Law, not the
Davis-Stirling Act, is the body of law governing the formation and operation of the Association.
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Any reference to a provision of the Davis-Stirling Act in this Declaration or the Bylaws is solely
for purposes of helping to ensure the continued. and efficient operation of the Association, and
shall not be deemed to imply that the Association must follow all requirements of the Davis-
Stirling Act.
3.3 SURROUNDING USES. This disclosure is intended to provide Owners with
information on surrounding uses as of the date of Recordation. Uses and Improvements in the
immediate vicinity of the Community include the items listed below:
North of the Community: Residential.
South of the Community: Yorktown Avenue; Residential.
East of the Community: Residential; McCallen Park; Commercial.
West of the Community: Multi-Family Residential; City Hall; Office.
Existing and proposed uses in the surrounding areas may change without notice. Neither
Declarant nor the Association has any control over uses outside the Community. Owners are
advised to contact applicable local governmental agencies for updated information concerning
the development plan for the surrounding community.
3.4 METHANE; VAPOR BARRIER SYSTEM. Declarant has installed a vapor
membrane (the "Liquid Boot' under the foundations of each Residence within the Conum mity,
which includes passive venting inside the perimeter walls and out roof vents(the "Vapor Barrier
System"). The Liquid Boot is a water-based cold spray membrane used to prevent particles,
moisture, and vapor penetration into homes and underground areas (such as parking garages).
You must not penetrate or otherwise disturb the Vapor Barrier System. Declarant is not
responsible for any damage caused to any Residence by an Owner which results from damage to
the Vapor Barrier System. For more infonnation on the Liquid Boot, please visit
http://www.liquidboot.com/gvb/index.asp.
Methane is a lighter than air, colorless, odorless gas, which is non-toxic and non-
carcinogenic, and which is the primary constituent (about 85%) of the gas burned in kitchen
stoves and ranges. Methane is potentially combustible if present within a confined space at
concentrations greater than approximately 5.0% by volume or approximately 50,000 parts per
million by volume. In very high concentrations, in a confined space, methane gas can dilute the
air, thereby lowering the oxygen concentration to the point that the mixture becomes an
asphyxiant.
Each Owner is responsible for notifying future Owners of the existence of methane gas
within the Community and the existence of the Liquid Boot and Vapor Barrier System. Each
Owner hereby covenants to and must provide all disclosures and related infonnation to any
subsequent buyers of such Owner's Lot.
3.5 FORMER OIL WELLS IN AND AROUND THE COMMUNITY.
Huntington Beach and surrounding cities have been an area of oil exploration and development
during the last century. Land within the Community was formerly used for petroleum
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exploration and production activities. There are abandoned oil wells in and around the
Community,the locations of which may be viewed online via the State of California, Department
of Conservation, Division of Oil, Gas and Geothermal Resources ("DOGGR") website at
http://maos.conservation ca gov/doms/index.btml, as well as Abandoned Oil Well in the
locations approximately shown on Exhibit F attached hereto. The term "abandoned"when used
in this context means the oil well has ceased operation, and has been removed, plugged, and
capped in conformance with DOGGR, and the oil well has been inspected and approved by the
City Building Department, DOGGR and the Huntington Beach Fire Department ("HBFD'�.
Abandonment to current standards includes an inspection and test for leakage of natural gas
(methane) to the satisfaction of the HBFD and the DOGGR. No detectable leakage is the
standard applied by both agencies. Both agencies also review engineering reports of the actual
well abandonment conditions and issue separate approvals indicating that a well meets current
standards. Owners and the Association are advised that building near an abandoned well
requires DOGGR approval and that approval is dependent on meeting current standards as
defined by the DOGGR. Prior to entering into a contract to purchase a Lot in the Community,
you should investigate this matter to your satisfaction with the DOGGR and the City to obtain
any such additional documentation or information as such party may deem necessary or
appropriate prior to purchasing a Lot in the Community.
3.6 SEISMIC ACTIVITY; EARTHQUAKE FAULT ZONE. California is subject
to a wide range of earthquake activity. California has many known faults as well as yet
undiscovered faults. Pursuant to the "Fault Activity Investigation, 19601 Yorktown Avenue,
Tentative Tract 2000-128, Huntington Beach, Orange County, California" prepared by Geosoils,
Inc., the Community lies within at least one active Alquist-Priolo Earthquake Fault Zone and is
likely to be subject to strong seismic ground shaking. You must evaluate the potential for future
seismic activity that might seriously damage your Lot. A major earthquake, which some have
predicted will occur in our lifetimes, could cause very serious damage to Lots located even many
miles from the epicenter of the earthquake. A more moderate earthquake occurring on a more
minor fault, or on an undiscovered fault, could also cause substantial damage. Seller makes no
representations or warranties as to the degree of earthquake risk within the Community. All
Owners should read "The Homeowner's Guide to Earthquake Safety," which is published by the
California Seismic Safety Commission and is available from their offices or by free download
from their website at http://www.seisimic.ca.gov/ and consult with the City, other public
agencies, and appropriate experts to evaluate the potential risk. Pursuant to City requirements,
habitable structures, which are occupied for more than two thousand (2,000)hours per year, shall
be located outside of setback zones in accordance with the provisions of the Alquist-Priolo Act.
No development shall be allowed within a fifty (50) foot structural zone on either side of a
Alquist-Priolo Earthquake Fault Zone located within the Community. Prior to entering into a
contract to purchase a Lot in the Community, you should investigate this matter to your
satisfaction and obtain any such additional documentation or information as such party may
deem necessary or appropriate prior to purchasing a Lot in the Community.
3.7 ELECTRIC POWER LINES, COMMUNICATIONS FACILITIES AND
HUMAN HEALTH. Underground or overhead electric transmission and distribution lines and
transformers may be located in and around the Community. The lines and transformers are
owned, operated and maintained by one or more public utility companies. Power lines and
transformers produce some noise and electromagnetic fields ("EMF") when operating. Like all
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wireless communications facilities, these facilities produce radio-frequency fields ("RF'). For
some time, there has been speculation in the scientific community about health risks associated
with living near EMF and RF sources. Numerous studies concerning the effects of EMF and/or
RF on human health have been undertaken over the past several years and some are ongoing. In
1992, the United States Congress authorized the Electric and Magnetic Fields Research and
Public Information Dissemination Program to perform research on these issues and to analyze
the existing scientific evidence in order to clarify the potential for health risks from exposure to
EMT and RF. The National Institute of Environmental Health Sciences ("NIEHS") issued a
report to Congress summarizing its review of scientific data from over three hundred (300)
studies on EMF and RF health risks. The EMF and RF studies consist of both epidemiological
studies (studies of exposure in human populations) and controlled laboratory experiments on
animal and cell models. While some epidemiological studies suggested some link between
certain health conditions, the laboratory experiments did not support such a link. According to
the NIEHS report, the scientific evidence shows no clear pattern of health hazards from EMF or
RF exposure, and the NIEHS report did not find evidence of any link sufficient to recommend
widespread changes in the design or use of electrical transmission equipment. However, because
the evidence does not clearly rile out any effect, NIEHS advocated continuing inexpensive and
safe reductions in exposure to EMF and RF and endorsed current utility practices regarding
design and siting of new transmission and distribution lines. Further information on this subject
currently is available from:
3.7.1 the World Health Organization's International EMF Project website at
http://www.who.int/topics/electromagnetie—fields/en/;
3.7.2 Southern California Edison website at https://www.see.com/wps/portal/
home/safety/family/environmental-health;
3.7.3 the U.S. National Institute of Environmental Health Sciences website at
http://www.niehs.nih.gov/health/topies/agents/emf/;
3.7.4 San Diego Gas & Electric website at http://www.sdge.com
/safety/electric-and-magnetic-fields/emf-issue;
3.7.5 Electric and Magnetic Fields Program, at http://www.ehib.org/emf/;
and
3.7.6 Pacific Gas & Electric Company website at
http://www.pge.com/mybusiness/edusafety/systemworks/electric/emf/#theepucaffmnedit.
This list is not meant to be all-inclusive.
3.8 PROPERTY LINES. The boundaries of each Lot in the Community are
delineated on subdivision(tract) snaps, lot line adjustments or parcel maps that are public records
and are available at the County Recorder's office.
3.9 UTILITY IMPROVEMENTS. There may be above-ground and subterranean
utility Improvements such as transformers, lift stations, water or sewer facilities,
telecommunications vaults and other visible Improvements necessary for the delivery of utilities
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or other services either on or adjacent to each Lot. Each Owner understands that the placement
of such Improvements is dictated by the needs of the applicable utility or service provider, and
the presence of such Improvements in the Community is in accordance with easements created
prior to or during the development of the Community. Each Owner, by accepting a deed to a Lot
in the Community, understands that each Lot is subject to one or more such easements for
placement of utility Improvements. No Owner may modify, remove or otherwise interfere with
utility Improvements on any Lot or other portion of the Community.
3.10 MOLD. Molds are simple, microscopic organisms, present virtually everywhere,
indoors and outdoors. Mold can be any color, but is usually green, gray, brown or black. Mold
requires a food source (such as paper, wood, leaves or dirt), a source of moisture and a suitable
temperature(generally 40-100 degrees Fahrenheit)to grow.
Individuals are exposed to molds on a daily basis, and in most instances there are no
harmful effects. However, the buildup of molds in the indoor environment may contribute to
serious health problems for some individuals. Due to a variety of factors, including the fact that
sensitivities to various types of molds and other potential contaminants vary from person to
person, there are currently no state or federal standards concerning acceptable levels of exposure
to mold. Sources of indoor moisture that may lead to mold problems include, but are not limited
to flooding, leaks, seepage, sprinkler spray hitting the Residence, overflow from sinks or sewers,
damp basement or crawl space, steam from shower or cooking, humidifiers, wet clothes drying
indoors, watering house plants, and clothes dryers exhausting indoors.
Each Owner should take precautions to prevent the growth of mold in the Residence from
these and other sources. Preventative measures include, but are not limited to the following: (1)
regularly cleaning the Residence; (2) regularly checking for accumulated moisture in corners and
unventilated areas; (3) running fans, dehumidifiers and air conditioners to reduce indoor
humidity; (4) stopping the source of any leak or flooding; (5) removing excess water with mops
or a wet vacuum; (6) moving wet items to a dry, well-ventilated area; (7) regularly cleaning and
disinfecting indoor and outdoor surfaces that may contain mold; (8) having major appliances,
such as fumaces, heat pumps, central air conditioners, ventilation systems and furnace-attached
humidifiers inspected, cleaned and serviced regularly by a qualified professional; (9) cleaning
the refrigerator, air conditioner and dehumidifier drip pans and filters regularly and ensuring that
refrigerator and freezer doors seal properly; and(10) avoiding over-watering of landscaping.
It is the Owner's responsibility to monitor the Residence and Lot on a continual basis for
excessive moisture, water and mold accumulation. For additional information regarding mold,
please refer to the following websites: California Department of Public Health -
http://www.edph.ca.gov; Centers for Disease Control and Prevention—http://www.ede.gov/neeh;
U.S. Environmental Protection Agency — http://www.epa.gov; Illinois Department of Public
Health — http://www.idph.state.il.us; and Washington State Department of Health —
http://www.doh.wa.gov.
3.11 SUPPLEMENTAL REAL PROPERTY TAXES. The County Assessor has the
authority to reassess new homes after the Close of Escrow based on the difference between its
appraised value and the home's unimproved value for the period after escrow closes. The
Assessor will issue a supplemental tax bill to Owners for the difference in the taxes due based
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upon the reassessment. Declarant has no control over the valuation, timing or the amount of the
supplemental bill resulting from the reassessment. Owner is solely responsible for the payment
of the supplemental tax bill.
The following notice is given pursuant to Section 1102.6c of the California Civil Code:
"California property tax law requires the Assessor to revalue
real property at the time the ownership of the property
changes. Because of this law, you may receive one or two
supplemental tax bills, depending on when your loan closes.
The supplemental tax bills are not mailed to your lender. If
you have arranged for your property tax payments to be paid
through an impound account, the supplemental tax bills will
not be paid by your lender. It is your responsibility to pay
these supplemental bills directly to the Tax Collector. If you
have any question concerning this matter, please call your local
Tax Collector's Office."
Neither Declarant nor any of its authorized agents, representatives, employees or sales
people have made any representations or warranties regarding supplemental property taxes.
3.12 MEGAN'S LAW NOTICE. The following- notice is given pursuant to
Section 2079.10a of the California Civil Code:
"Pursuant to Section 290.46 of the Penal Code, information
about specified registered sex offenders is made available to
the public via an Internet Web site maintained by the
Department of Justice at www.meganslaw.ca.gov. Depending
on an offender's criminal history, this information will include
either the address at which the offender resides or the
community of residence and ZIP Code in which he or she
resides."
Declarant makes no representations, warranties or guarantees regarding the presence or
absence of registered sex offenders within the Community or in the surrounding area. Declarant
has no obligation or duty to investigate existing residents or buyers to determine whether they
are sex offenders. Owners are solely responsible for making their own investigation.
3.13 NO ENHANCED PROTECTION AGREEMENT. No language contained in
this Declaration or any Supplemental Declaration shall constitute, or be interpreted to constitute,
an enhanced protection agreement ("EPA"), as defined in Section 901 of the California Civil
Code. Further, no express or implied representations or warranties made by Declarant in any
other writing are intended to constitute, or to be interpreted to constitute, an EPA.
3.14 ADDITIONAL PROVISIONS. There may be provisions of various laws,
including the Federal Fair Housing Act codified at Title 42 United States Code, Section 3601, et
seq., which may supplement or override the Governing Documents. Declarant makes no
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representations or warranties regarding the future enforceability of any portion of the Governing
Documents.
ARTICLE 4
THE ASSOCIATION
4.1 GENERAL DUTIES AND POWERS. The Association has the duties and
powers enumerated and described in the Governing Documents, in addition to the general and
implied powers described in the California Non-Profit Mutual Benefit Corporation Law,
generally to do all things that a corporation organized under the laws of the State of California
may lawfully do which are necessary or proper in operating for the general welfare of the
Owners, subject only to the limits on the exercise of such powers listed in the Governing
Documents. Unless otherwise indicated in the Articles of Incorporation, Bylaws, this
Declaration, or any Supplemental Declaration, the powers of the Association may be exercised
by the Board.
4.2 SPECIFIC DUTIES AND POWERS. In addition to its general powers and
duties,the Association has the following specific powers and duties.
4.2.1 Association Maintenance Areas. The power and duty to accept,
maintain and manage the Association Maintenance Areas in accordance with the Governing
Documents. The Association may install or remove capital Improvements on the Association
Maintenance Areas. The Association may reconstruct, replace or refinish any Improvement on
the Association Maintenance Areas.
4.2.2 Employ Personnel. The power to employ Persons necessary for the
effective operation and maintenance of the Association Maintenance Areas, including legal,
management and accounting services.
4.2.3 Insurance. The power and duty to keep insurance for the Association
Maintenance Areas in accordance with this Declaration.
4.2.4 Maintenance Guidelines. The power and duty to (a) operate, maintain
and inspect the Association Maintenance Areas and their various components in conformity with
any Maintenance Guidelines and any maintenance manual, and (b) review any maintenance
manual for necessary or appropriate revisions no less than annually after the Board has prepared
the Budget.
4.2.5 Rules and Regulations. The power, but not the duty, to adopt, amend,
repeal and create exceptions to, the Rules and Regulations.
(a) Standards for Enforceability. To be valid and enforceable, a
Rule must satisfy all the following requirements:
(i) The Rule must be in writing;
(ii) The Rule is within the authority of the Board conferred
by law or by this Declaration, the Articles of Incorporation or the Bylaws;
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(iii) The Rule is not inconsistent with governing law, this
Declaration,the Articles of Incorporation or the Bylaws; and
(iv) The Rule is reasonable.
(b) Areas of Regulation. The Rules and Regulations may concern
use of the Community, signs, parking restrictions, minimum standards of property maintenance,
and any other matter under the Association's jurisdiction.
(c) Limits on Regulation. The Rules and Regulations must apply
uniformly to all Owners and must comply with this Declaration and all applicable state and local
laws. The rights of Owners to display in or on their Residences religious, holiday and political
signs, symbols and decorations of the kinds normally displayed in single family residential
neighborhoods shall not be abridged. However, the Association may adopt time, place and
manner restrictions for such displays if they are visible outside the Residence. No modification
to the Rules and Regulations may require an Owner to dispose of personal property that was in
compliance with all rules previously in force; however, this exemption shall apply only during
the period of such Owner's ownership of the Lot and it shall not apply to: (i) subsequent Owners
who take title to a Lot after the modification is adopted; or (ii) clarifications to the Rules and
Regulations.
(d) Procedure for Adoption, Amendment and Repeal. Rules or
procedures concerning (1) the use of a Lot, including any aesthetic standards that affect Lots,
(2) Owner discipline, including any schedule of monetary penalties for violation of the
Governing Documents, (3) any procedure for the imposition of penalties, (4) any standards for
delinquent assessment payment plans, (5) any procedures adopted by the Association for
resolution of assessment disputes, (6) any procedures for reviewing and approving or
disapproving a proposed physical change to a Lot, and (7)procedures for elections (each, a
"Covered Rule') may only be adopted, amended or repealed (each, a "Rule Change") in
accordance with the following procedure:
(i) The Board must provide written notice ("Notice") of a
proposed Rule Change to the members at least thirty (30) days before making the Rule Change,
except for an Emergency Rule Change (defined below). The Notice must include the text of the
proposed Rule Change and a description of the purpose and effect of the proposed Rule Change;
(ii) The decision on a proposed Rule Change shall be made
at a Board meeting after consideration of comments made by the members of the Association;
(iii) The Board shall deliver Notice of the Rule Change to
every member of the Association within fifteen (15) days of adoption. If the change was an
Emergency Rule Change, the Notice shall include the text of the Emergency Rule Change, and
the date on which the Emergency Rule Change expires;
(iv) If the Board determines that an immediate Rule Change
is required to address an imminent threat to public health or safety, or an imminent risk of
substantial economic loss to the Association, it may make the change on an emergency basis
("Emergency Rule Change' and no Notice will be required. An Emergency Rule Change is
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effective for one hundred-twenty (120) days, unless the Emergency Rule Change provides for a
shorter effective period. Any Rule Change that is adopted as an Emergency Rule Change may
not be re-adopted under authority of this subpart.
(e) Exceptions to Procedure. The procedure in Section 4.2.5(d)
does not apply to:
(i) Rules that do not meet the defmition of Covered Rules
above;
(ii) Decisions of the Board regarding maintenance of
Association Maintenance Areas;
(iii) A decision on a specific matter that is not intended to
apply generally;
(iv) A decision setting the amount of an Annual Assessment;
(v) A Rule Change that is required by law if the Board has
no discretion as to the substantive effect of the changes; or
(vi) Issuance of a document that merely repeats existing law
or the Governing Documents.
4.2.6 Contracts. The power, but not the duty, to enter into contracts. This
includes contracts with Owners or other Persons to provide services or to maintain
Improvements in the Community and elsewhere which the Association is not otherwise required
to provide or maintain by this Declaration.
4.2.7 Indemnification.
(a) For Association Representatives. To the fullest extent
authorized by law, the Association has the power and duty to indemnify Board members,
Association officers, and all other Association committee members for all damages, pay all
expenses incurred, and satisfy any judgment or fine levied as a result of any action or threatened
action brought because of performance of an act or omission within what such person reasonably
believed to be the scope of the Person's Association duties ("Official Act"). Board members,
Association officers, and all other Association committee members are deemed to be agents of
the Association when they are performing Official Acts for purposes of obtaining
indemnification from the Association pursuant to this Section. The entitlement to
indemnification under this Declaration inures to the benefit of the estate, executor, administrator
and heirs of any person entitled to such indemnification.
(b) For Other Agents of the Association. To the fullest extent
authorized by law, the Association has the power, but not the duty, to indemnify any other
Person acting as an agent of the Association for damages incurred, pay expenses incurred, and
satisfy any judgment or fine levied as a result of any action or threatened action because of an
Official Act.
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(c) Provided by Contract. The Association also has the power, but
not the duty, to contract with any Person to provide indemnification in addition to any
indemnification authorized by law on such terms and subject to such conditions as the
Association may impose.
4.2.8 Vehicle and Parking Restrictions. The power granted in Section 2.9
to identify Authorized Vehicles or Restricted Vehicles and to modify the vehicle and parking
restrictions in the Governing Documents.
4.2.9 Prohibited Functions.
(a) Off-site Nuisances. The Association shall not use any
Association funds or resources to abate any annoyance or nuisance emanating from outside the
physical boundaries of the Community.
(b) Political Activities. The Association shall not conduct, sponsor,
participate in or expend funds or resources toward any activity, campaign or event, including any
social or political campaign, event or activity which does not directly and exclusively pertain to
the authorized activities of the Association. Furthermore, the Association shall not participate in
federal, state or local activities or activities intended to influence a governmental action affecting
areas outside the Community(e.g. endorsement or support of legislative or administrative actions
by a local governmental authority), nor shall it support or campaign for or against candidates for
elected or appointed office or ballot proposals. There shall be no amendment of this Section so
long as Declarant owns any portions of the Community.
4.2.10 Standing to Resolve Disputes. The Association shall have standing to
institute, defend, settle or intervene in litigation, alternative dispute resolution or administrative
proceedings (each, an "Action") in its own name as the real party in interest and without joining
the Owners, in matters pertaining to damage to the Association Maintenance Areas (each, a
"Claim"). The Association may, in its sole discretion, elect to institute, intervene in, continue,
settle or dismiss an Action at any time: If the Association institutes or intervenes in an Action on
a Claim, the Association's standing shall be exclusive, and the Owners shall thereafter be barred
from instituting a new Action or maintaining a pending Action on the same Claim. The
Association's election to institute or intervene in an Action on a particular Claim shall not create
any affirmative obligation on the part of the Association to maintain, settle or dismiss the Action,
except in the Association's sole discretion, and subject to Article 10. If the Association elects to
settle an Action, the terms of the settlement shall be binding on the Owners, and the Owners
shall be barred from instituting or continuing any other Action on the same Claim. If the
Association elects to dismiss an Action, the dismissal shall be with prejudice to the institution or
continuation by one or more Owners of any Action on the same Claim.
4.3 STANDARD OF CARE, NON-LIABILITY.
4.3.1 Scope of Powers and Standard of Care.
(a) General Scope of Powers. Rights and powers conferred on the
Board or other committees or representatives of the Association by the Governing Documents
are not duties, obligations or disabilities charged upon those Persons unless the rights and powers
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are explicitly identified as including duties or obligations in the Governing Documents or law.
Unless a duty to act is imposed on the Board or other committees or representatives of the
Association by the Governing Documents or law, the Board and the committees have the right to
decide to act or not act. Any decision not to act is not a waiver of the right to act in the future.
(b) Business Affairs. This Section 4.3.1(b) applies to Board
member actions in connection with management, personnel, maintenance and operations,
insurance, contracts and finances. Each Board member shall perform the duties of a Board
member in good faith, in a manner the Board member believes to be in the best interests of the
Association and with such care, including reasonable inquiry, as an ordinarily prudent person in
a like position would use under similar circumstances. When performing his duties, a Board
member is entitled to rely on information, opinions, reports or statements, including financial
data prepared or presented by:
(i) One (1) or more officers or employees of the
Association whom the Board member believes to be reliable and competent in the matters
presented;
(ii) Counsel, independent accountants or other Persons as to
matters which the Board member believes to be within such Person's professional or expert
competence; or
(iii) A committee of the Board upon which the Board
member does not serve, as to matters under its designated authority, which committee the Board
member believes to merit confidence, so long as, in any such case, the Board member acts in
good faith, after reasonable inquiry when the need therefor is indicated by the circumstances and
without knowledge that would cause such reliance to be unwarranted.
This Section 4.3.1(b)is intended to be a restatement of the business judgment rule
established in applicable law as it applies to the Association. All modifications and
interpretations of the business judgment rule applicable to the Association shall be interpreted to
modify and interpret this Section 4.3.1(b).
(c) Association Governance. This Section 4.3 applies to Board
actions and decisions in connection with interpretation and enforcement of the Governing
Documents, architectural and landscaping control, regulation of uses within the Community,
rule-making and oversight of committees. Actions taken or decisions made in connection with
these matters shall be reasonable, fair and nondiscriminatory.
4.3.2 Non-liability. No Person is liable to any other Person (other than the
Association or a party claiming in the name of the Association) for injuries or damage resulting
from such Person's Official Acts, except to the extent that such injuries or damage result from
the Person's willful or malicious misconduct. No Person is liable to the Association (or to any
party claiming in the name of the Association) 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. The Association is not liable for
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damage to property in the Community unless caused by the negligence of the Association, the
Board, the Association's officers, the Manager or the Manager's staff.
4.4 MENWERSIIIP.
4.4.1 Generally. Every Owner shall automatically acquire a Membership in
the Association and retain the Membership until such Owner's Lot ownership ceases, at which
time such Owner's Membership shall automatically cease. Ownership of a Lot is the sole
qualification for Membership. Memberships are not assignable except to the Person to whom
title to the Lot is transferred, and every Membership is appurtenant to and may not be separated
from the fee ownership of the Lot. The rights, duties, privileges and obligations of all Owners
are as provided in the Governing Documents.
4.4.2 Transfer. The Membership of any Owner may not be transferred,
pledged or alienated in any way, except on the transfer or encumbrance of such Owner's Lot, and
then only to the transferee or Mortgagee of the Owner's Lot. A prohibited transfer is void and
will not be reflected in the records of the Association. Any Owner who has sold the Owner's Lot
to a contract purchaser under an agreement to purchase may delegate the Owner's Membership
Tights to the contract purchaser. The delegation must be in writing and must be delivered to the
Association before the contract purchaser may vote. The contract seller shall remain liable for
all Assessments attributable to the contract seller's Lot which accrue before title to the Lot is
transferred. If the contract seller fails or refuses to delegate his Membership rights to the
contract purchaser before the Close of Escrow, the Association may record the transfer to the
contract purchaser in the Association's records. However, no contract purchaser will be entitled
to vote at Association meetings during the term of a purchase contract without satisfactory
evidence of the delegation of the contract seller's Membership rights to the contract purchaser.
The Association may levy a reasonable transfer fee against a new Owner and such Owner's Lot
(which fee shall be paid through escrow or added to the Annual Assessment chargeable to such
new Owner) to reimburse the Association for the administrative cost of transferring the
Membership to the new Owner on the Association's records. Such fee may not exceed the
Association's actual cost involved in changing its records.
4.4.3 Classes of Membership. The Association classes of voting
Membership are as follows:
(a) Class A. Class A members are all Owners except Declarant for
so long as a Class B Membership exists. Class A members are entitled to one (1) vote for each
Lot owned by such Class A members. Declarant shall become a Class A member on conversion
of Declarant's Class B Membership as provided below. The vote for each Lot shall be exercised
in accordance with Section 4.5.1, but no more than one (1) Class A vote may be cast for any Lot.
(b) Class B. The Class B member is Declarant. The Class B
member is entitled to three (3) votes for each Lot owned by Declarant. The Class B Membership
shall convert to Class A Membership upon the second Close of Escrow in the Community.
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4.4.4 . Board Appointment Right. Declarant shall have a limited right to
appoint a simple majority of the members of the Board of Directors (the "Board Appointment
Right'.
(a) Limits on Exercise of Board Appointment Right. Until the
expiration of the Board Appointment Right as determined below, Declarant shall not be
permitted to cast any Class A or Class B vote to elect any member of the Board of Directors.
Declarant's power to fill seats on the Board shall during that time be limited to exercise of the
Board Appointment Right.
(b) Term of Board Appointment Right. The Board Appointment
Right shall remain effective until the date on which Declarant no longer owns any portion of the
Community.
(c) No Amendment without Declarant Consent. Notwithstanding
anything to the contrary in this Declaration, this Section 4.4.4 shall not be amended without the
prior written consent of Declarant until Declarant no longer owns any portion of the Community.
4.5 VOTING RIGHTS. Voting rights attributable to the Lots in the Community
shall be exercised only after Annual Assessments have commenced in the Community.
4.5.1 Limits Generally. All voting rights are subject to the Governing
Documents. Except as provided in Sections 4.5.2 and 11.2 of this Declaration and as provided in
the Bylaws, as long as there is a Class B Membership, any provision of the Governing
Documents which expressly requires the vote or written consent of a specified percentage
(instead of a majority of a quorum) of the Association's voting power before action may be
undertaken shall require the approval of such specified percentage of the voting power of both
the Class A and the Class B Memberships. Except as provided in the Bylaws, on termination of
the Class B Membership, any provision of the Governing Documents which expressly requires
the vote or written consent of Owners representing a specified percentage (instead of a majority
of a quorum) of the Association's voting power before action may be undertaken shall then
require the vote or written consent of Owners representing such specified percentage of both
(a)the Association's total Class A voting power, and (b) the Association's Class A voting power
represented by Owners other than Declarant.
4.5.2 Vote to Initiate Right to Repair Law Claim. Commencing on the
date of the first annual meeting of the Owners: (i) Declarant, (ii) any Board member appointed
by Declarant, and (iii) any Board member who is a current employee of Declarant, is prohibited
from voting or otherwise participating in any decision by the Association or the Owners to
initiate a Right to Repair Law Claim against Declarant or Declarant Parties (as such term is
defined in Section 10.3 hereof).
4.5.3 Joint Ownership. When more than one (1) Person holds an interest in
any Lot ("Co-Owners"), each Co-Owner may attend any Association meeting, but only one (1)
Co-Owner shall be entitled to exercise the single vote to which the Lot is entitled. Co-Owners
owning the majority interests in a Lot may designate in writing one (1) of their number to vote.
Fractional votes shall not be allowed and the vote for each Lot shall be exercised, if at all, as a
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unit. Where no voting Co-Owner is designated or if the designation is revoked, the vote for the
Lot shall be exercised as the Co-Owners owning the majority interests in the Lot agree. Unless
the Association receives a written objection in advance from a Co-Owner, it shall be
conclusively presumed that the voting Co-Owner is acting with his Co-Owners' consent. No
vote may be cast for any Lot if the Co-Owners present in person or by proxy owning the majority
interests in such Lot fail to agree to the vote or other action. The nonvoting Co-Owner or Co-
Owners are jointly and severally responsible for all obligations imposed on the jointly-owned
Lot and are entitled to all other benefits of ownership. All agreements and determinations
lawfully made by the Association-in accordance with the voting percentages established in the
Governing Documents are binding on all Owners and their successors in interest.
ARTICLE 5
PROPERTY EASEMENTS AND RIGHTS
5.1 EASEMENTS.
5.1.1 Maintenance and Repair. Declarant reserves for the benefit of the
Association and all Association agents, officers and employees, nonexclusive easements over the
Community as necessary to fulfill the powers and obligations, as well as perform the duties of
the Association.
5.1.2 Utility Easements. Each Owner agrees, by acceptance of the deed to a
Lot in the Community, that the Owner's Lot is granted subject to easements for utility
installations and maintenance (a) as shown on the Recorded Map of the Community, (b) of
Record prior to the Close of Escrow for the Owner's Lot, and (c) or recorded by Declarant in
accordance with the terms of the deed to the Lot. Within these easements, no structure, planting,
or other material shall be placed or permitted to remain which may damage or interfere with the
installation and maintenance of utilities and drainage facilities. The utility easement areas of
each Lot and all Improvements therein shall be maintained continuously by the Owner of such
Lot, except for those Improvements for which a public authority or utility company is
responsible.
5.1.3 Shared Drive. Subject to Section 2.9.4 above, Declarant reserves, for
the benefit of every Owner, and each Owner's Family, tenants and invitees, reciprocal
nonexclusive easements for pedestrian and vehicular access, ingress and egress over the Shared
Drive constructed on a portion of each Lot in the Community. This easement is appurtenant to
and passes with title to every Lot in the Community.
5.1.4 Encroachments. Declarant reserves, for its benefit and for the benefit
of all Owners and their Lots, a reciprocal easement appurtenant to each Lot over the other Lots to
accommodate (a) any existing encroachment of any wall or any other Improvement installed by
Declarant or approved by the Board, and (b) shifting, movement or natural settling of the
Residences or other Improvements. Use of the easements may not unreasonably interfere with
each Owner's use and enjoyment of the burdened Residences. Should any Improvement
installed by Declarant or any Owner on a Lot, including walls or fences, encroach on any portion
of any adjacent Lot due to engineering errors, errors in original construction, settlement or
shifting of structures or other inadvertent causes, the Owner of the adjacent Lot shall be deemed
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to have granted an appurtenant easement for such encroachment for so long as such
Improvement, as constructed or reconstructed, shall remain in a useful state; provided, however,
that no valid easement for encroachment shall exist if such encroachment occurred due to the
negligence or willful misconduct of the Owner constructing or installing same.
5.1.5 Easements for Public Service Use. Declarant reserves easements over
the Community for public services of the local government agencies, including but not limited
to, the right of law enforcement and fire protection personnel to enter upon the Community to
carry out their official duties.
5.1.6 Easements for Water and Utility Purposes. Declarant reserves
easements over the Community for public and private utility purposes, including but not limited
to, the right of any public utility or mutual water district of ingress and egress over the
Community to read and maintain meters, and use and maintain fire hydrants.
5.1.7 Completion of Improvements. Declarant reserves the right and
easement to enter the Community to complete any Improvement which Declarant considers
desirable to implement Declarant's development plan.
5.1.8 Access to Drainage Ways. Each Owner agrees for such Owner and
such Owner's successors in interest, by the acceptance of the deed to a Lot, to permit free access
by Owners of other Lots to drainage ways, if any, located on the Lot, which drainage ways affect
said other Lots, when such access is essential for the maintenance of drainage ways for the
protection or use of said other Lots.
5.1.9 Easements for Maintenance of Association Maintenance Areas.
Declarant reserves, for the benefit of the Association, nonexclusive easements over each Lot in
the Community as necessary for access and maintenance of Association Maintenance Areas
described herein or depicted on Exhibit C. No owner may interfere with the Association's
exercise of its rights under the easements reserved in this Section.
5.1.10 Perimeter Wall Easements. Declarant reserves for the benefit of the
Association the following easements:
(a) An easement over all Lots that are enclosed by a portion of the
Perimeter Wall, consisting of a three (3) foot-wide strip of land bounded on one side by the
Residence-facing surface of the Perimeter Wall, and extending along the entire length of that
portion of the Perimeter Wall that encloses the Lot, in order to accommodate the footings and
other structural components of the Perimeter Wall; and
(b) An easement for access over such Lots as reasonably necessary
for maintaining the Perimeter Walls and related Improvements. If a Perimeter Wall is damaged,
the Association shall have the right to enter upon the Lot as necessary to reconstruct the
Perimeter Wall in the easement area, and the easements reserved hereby shall continue in effect
so long as the Perimeter Wall remains in place.
5.1.11 Mailbox Cluster. Declarant reserves nonexclusive easements over a
portion of Parcel 2 for (a) placement of mailbox cluster in the location determined by the United
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States Postal Service, (b) delivery, deposit and pickup of United States mail, and(c) access to the
clustered mailbox by the Owners in the Community (collectively, the "Mailbox Cluster
Easement'). The approximate location of the Mailbox Cluster Easement is depicted on Exhibit
E attached hereto; provided, however, that the actual location and dimensions of the Mailbox
Cluster Easement shall be defined by the physical location of the clustered mailbox
improvements as built by Declarant or rebuilt substantially in accordance with the original plans
(if available). Within the Mailbox Cluster Easement, no structure, planting, or other material
shall be placed or permitted to remain which may damage or interfere with the installation and
maintenance of the clustered mailbox. The Mailbox Cluster Easement reserved hereby is
appurtenant to each Lot in the Community, as reasonably necessary to ensure the Owners
reasonable access to their respective mailboxes therein.
5.1.12 Support, Settlement and Encroachment. Should any Improvement
installed by Declarant or any Owner on a Lot, including walls or fences, encroach on any portion
of any adjacent Lot due to engineering errors, errors in original construction, settlement or
shifting of structures or other inadvertent causes, the Owner of the adjacent Lot shall be deemed
to have granted an appurtenant easement for such encroachment for so long as such
Improvement, as constructed or reconstructed, shall remain in a useful state; provided, however,
that no valid easement for encroachment shall exist if such encroachment occurred due to the
gross negligence or willful misconduct of the Owner constructing or installing same. In addition,
Declarant hereby reserves easements for encroachment of the footings of walls and fences in the
Community over the Lots for the benefit of each affected Owner.
5.2 RIGHT OF ENTRY.
5.2.1 Association. The Association has the light to enter the Lots to inspect
the Community, and may take whatever corrective action it determines to be necessary or proper.
Entry onto any portion of a Lot (that is not also an Association Maintenance Area) under this
Subsection may be made after at least three (3) days' advance written notice to the Owner of the
Lot except for emergency situations, which shall not require notice. Nothing in this Subsection
limits the right of an Owner to exclusive occupancy and control over the portion of the Owner's
Lot that is not an Association Maintenance Area. Any damage to a Residence or Lot caused by
entry under this Subsection shall be repaired by the Association.
5.2.2 Declarant. The Declarant has the right to enter the Lots (i) to complete
and repair any Improvements located thereon as deternined necessary or proper by the
Declarant, in its sole discretion, (ii)to comply with requirements for the recordation of
subdivision maps or lot line adjustments in the Community, (iii) for repair of Improvements in
accordance with the provisions of the Right to Repair Law, (iv)to accommodate grading or
construction activities, and (v) to comply with requirements of applicable governmental
agencies. Declarant shall provide reasonable notice to the Owner prior to entry into the Owner's
Lot under this Section 5.1.1 except for emergency situations, which shall not require notice.
Nothing in this Section 5.1.1 limits the right of an Owner to exclusive occupancy and control
over the Lot. Any damage to a Residence or Lot caused by entry under this Section 5.1.1 shall
be repaired by the Declarant. Unless otherwise specified in the initial grant deed of a Lot from
Declarant, this right of entry shall automatically expire on the date that is twelve (12) years after
the date of Recordation of the deed by which Declarant first conveyed title to an Owner.
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5.2.3 Owners. Each Owner shall permit other Owners, and their
representatives, to enter the Owner's Lotto to perform installations, alterations or repairs to the
mechanical or electrical services to a Lot if(a)requests for entry are made in advance, (b) entry
is made at a time reasonably convenient to the Owner whose Lot is to be entered; and (c) the
entered Lot is left in substantially the same condition as existed immediately preceding such
entry. Any damage to the Lot caused by entry under this Subsection shall be repaired by the
entering Owner.
ARTICLE 6
ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS
6.1 PERSONAL OBLIGATION TO PAY ASSESSMENTS. Each Owner shall
pay to the Association all Assessments established and collected pursuant to this Declaration.
The Association shall not levy or collect any Assessment that exceeds the amount necessary for
the purpose for which it is levied. Each Assessment, together with late payment penalties,
interest, costs and reasonable attorney fees, is the personal obligation of the Person who was the
Owner of the Lot when the Assessment accrued. The personal obligation for delinquent
Assessments may not pass to any new Owner ("Purchaser") unless expressly assumed by the
Purchaser.
6.2 ASSOCIATION MAINTENANCE FUNDS. The Association shall establish no
fewer than two (2) separate Association Maintenance Fund accounts into which shall be
deposited all money paid to the Association and from which disbursements shall be made, as
provided in this Declaration. The Association Maintenance Funds may be established as trust
accounts at a banking or savings institution and shall include: (a) an Operating Fund for current
Common Expenses; (b) an adequate Reserve Fund for the portion of Common Expenses
allocated to (i) reserves for Improvements which the Board does not expect to repair or replace
on an annual or more frequent basis, and(ii)payment of deductible amounts under the insurance
policies kept in effect by the Association; and (c) any other funds which the Association may
elect to establish.
6.3 PURPOSE OF ASSESSMENTS. The Assessments shall be used exclusively to
(a)promote the Owners' welfare, (b) operate and maintain the Association Maintenance Areas,
and (c) discharge any other Association obligations under this Declaration. All amounts
deposited into the Association Maintenance Funds must be used solely for the common benefit
of all Owners for purposes authorized by this Declaration. Disbursements from the Operating
Fund generally shall be made by the Association to discharge Association responsibilities which
cannot be discharged by disbursements from the Reserve Fund. However, if the Board
determines that the Operating Fund contains excess funds, the Board may transfer the excess
funds to any other Association Maintenance Fund. Disbursements from the Reserve Fund shall
be made by the Association only for the purposes specified in this Article.
6.4 WAIVER OF USE. No Owner may exempt himself from personal liability for
Assessments duly levied by the Association by abandoning such Owner's Lot.
6.5 LIMITS ON ANNUAL ASSESSMENT INCREASES. The following shall
apply to the general component of Annual Assessments:
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6.5.1 Maximum Authorized Annual Assessment For Subsequent Fiscal
Years. The Board may levy Annual Assessments which exceed the Annual Assessments for the
immediately preceding Fiscal Year only as follows:
(a) If the increase in Annual Assessments is less than or equal to
thirty percent(30%) of the Annual Assessments for the immediately preceding Fiscal Year, then
the Board must either (i)have distributed the Budget for the current Fiscal Year in substantial
compliance with the procedure set forth in California Civil Code Section 5300, or (ii) obtain the
approval of Owners casting a majority of votes in an Increase Election; or
(b) If the increase in Annual Assessments is greater than thirty
percent (30%) of the Annual Assessments for the immediately preceding Fiscal Year, then the
Board must obtain the approval of Owners casting a majority of votes in an Increase Election.
This Section does not limit Annual Assessment increases necessary for addressing
an"Emergency Situation" as defined in Section 6.5.3.
6.5.2 Supplemental Annual Assessments. If the Board determines that the
Association's essential functions may be properly funded by an Annual Assessment in an
amount less than the maximum authorized Annual Assessment described above, it may levy such
lesser Annual Assessment. If the Board determines that the estimate of total charges for the
current year is or will become inadequate to meet all Common Expenses, it shall immediately
determine the approximate amount of the inadequacy. Subject to the limits described in
Sections 6.5.1 and 6.5.3, the Board may levy a supplemental Annual Assessment reflecting a
revision of the total charges to be assessed against each Lot.
6.5.3 Emergency Situations. For purposes of Sections 6.5.1 and 6.7, an
"Emergency Situation"is any one of the following:
(a) An extraordinary expense required by an order of a court;
(b) An extraordinary expense necessary to maintain the portion of
the Community for which the Association is responsible where a threat to personal safety on the
Community is discovered; and
(c) An extraordinary expense necessary to maintain the portion of
the Community for which the Association is responsible that could not have been reasonably
foreseen by the Board when preparing the Budget. Before imposing or collecting an Assessment
pursuant to this subsection (c), the Board shall adopt a resolution containing written findings
regarding the necessity of the extraordinary expense involved and why the expense was not or
could not have been reasonably foreseen in the budgeting process. The resolution shall be
distributed to the Owners with the notice of the assessment.
6.6 ANNUAL ASSESSMENTS.
6.6.1 Commencement of Annual Assessments. Annual Assessments shall
commence on a Lot at the Close of Escrow for such Lot.
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6.6.2 Assessment and Proration. Annual Assessments for fractions of a
month shall be prorated. The Board shall fix the amount of the Annual Assessment against each
Lot at least thirty (30) days in advance of each Annual Assessment period. However, unless
otherwise established by the Board, the initial Annual Assessments shall be assessed in
accordance with the most recent Association Budget prepared by Declarant. Written notice of
any change in the amount of any Annual Assessment shall be sent via first-class mail to every
Owner subject thereto not less than thirty(30)nor more than sixty(60) days before the increased
Assessment becomes due.
6.6.3 Apportionment of Annual Assessments. All Annual Assessments
shall be assessed uniformly and equally against the Owners and their Lots based on the number
of Lots owned by each Owner. The Board may determine that funds in the Operating Fund at
the end of the Fiscal Year be retained and used to reduce the following Fiscal Year's Annual
Assessments. On dissolution of the Association, any amounts remaining in any of the
Association Maintenance Funds shall be distributed to or for the benefit of the Owners in the
same proportions as such money was collected from the Owners.
6.6.4 Payment of Annual Assessments. Each Owner shall pay Annual
Assessments in monthly installments at such time, in such amounts and by such methods as are
established by the Board. If the Association incurs additional expenses because of a payment
method selected by an Owner,the Association shall charge the additional expenses to the Owner.
Each installment of Annual Assessments may be paid to the Association in one (1) check or in
separate checks as payments attributable to specified Association Maintenance Funds. If any
payment of an Annual Assessment installment (a) is less than the amount assessed and (b) does
not specify the Association Maintenance Fund or Funds into which it should be deposited, then
the amount received shall be credited in order of priority first to the Operating Fund, until that
portion of the Annual Assessment has been satisfied, and second to the Reserve Fund.
6.7 CAPITAL IMPROVEMENT ASSESSMENTS. The Board may levy, in any
Fiscal Year, a charge against the Owners and their Lots representing their share of the
Association's cost for repair or replacement of a capital Improvement on the Association
Maintenance Area (a "Capital Improvement Assessment'). Capital Improvement Assessments
shall be levied in the same proportions as Annual Assessments, and may only be levied if the
reserve contribution attributable to the subject Improvement in the then current Budget is
insufficient to complete necessary repairs or replacement of the subject Improvement. The
Board may levy, in any Fiscal Year, a Capital Improvement Assessment applicable to that Fiscal
Year if such increase is necessary for addressing an Emergency Situation as defined in
Section 6.5.3.
ARTICLE 7
INSURANCE
7.1 DUTY TO OBTAIN INSURANCE; TYPES. The Association shall obtain and
keep in effect at all times the following insurance coverages:
7.1.1 Commercial General Liability. A policy of commercial general
liability insurance (including coverage for medical payments), insuring the Association and the
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Owners against liability for bodily injury, death and property damage arising from or relating to
the ownership or use of the Association Maintenance Areas. If economically feasible and then
currently available, such policy shall specify amounts and include protection from liability and
risks as are customarily covered in developments with homeowners associations in the area of
the Community, and shall include a severability of interest endorsement or the equivalent which
shall preclude the insurer from denying the claim of an Owner because of negligent acts or
omissions of other Owners, or the Association or the Association's officers and directors acting
in their capacity as officers and directors.
7.1.2 Fidelity Insurance. Fidelity insurance coverage for any Person
handling funds of the Association, whether or not such persons are compensated for their
services, in an amount not less than the estimated maximum of funds, including reserve funds, in
the custody of the Person during the term of the insurance. The aggregate amount of the fidelity
insurance coverage may not be less than the sum equal to one-fourth (1/4) of the Annual
Assessments on all Lots in the Community,plus reserve funds.
7.1.3 Requirements of Fannie Mae, Ginnie Mae, Freddie Mac and
FHFA. Notwithstanding anything in the Governing Documents to the contrary, the amount,
term and coverage of any policy of insurance required under this Article 7 (including the
endorsements, the amount of the deductible, the named insureds, the loss payees, standard
mortgage clauses, notices of changes or cancellations, and the insurance company rating) shall
also satisfy the minimum requirements established for this type of development(if applicable) by
Fannie Mae, Ginnie Mae, Freddie Mac and FHFA, and any successor to those entities, so long as
any of those entities is a Mortgagee or Owner of a Lot in the Community, except to the extent
such coverage is not reasonably available or has been waived in writing by the entity requiring
the insurance coverage. If the above entities have not established requirements on any policy
required hereunder, the term, amount and coverage of such policy shall, subject to Section 7.1.1
above, be no less than that which is customary for similar policies on similar projects in the area
of the Community.
7.1.4 Other Insurance. Such other insurance insuring other risks
customarily insured by homeowners associations managing developments similar in
construction, location and use in the area of the Community. Such additional insurance may
include general liability insurance and director's and officer's errors and omissions insurance.
The Association may also procure fire and casualty insurance for the Improvements located
within the Association Maintenance Areas if such action is approved by a majority of the
Membership. The premiums for any such insurance shall be deemed a Common Expense.
7.1.5 Beneficiaries. The Association's insurance shall be kept for the benefit
of the Association, the Owners and the Mortgagees, as their interests may appear as named
insureds, subject,however,to loss payment requirements established in this Declaration.
7.2 WAIVER OF CLAIM AGAINST ASSOCIATION. All policies of insurance
kept by or for the benefit of the Association and the Owners must provide that the Association
and the Owners waive and release all claims against one another, the Board and Declarant, to the
extent of the insurance proceeds available, whether or not the insurable damage or injury is
caused by the negligence or breach of any agreement by any of the Persons.
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7.3 RIGHT AND DUTY OF OWNERS TO INSURE. Each Owner is responsible
for acquiring fire and casualty insurance for the Owner's Lot, and for insuring his personal
property and all other property and Improvements on the Owner's Lot for which the Association
has not purchased insurance in accordance with Section 7.1. Nothing in this Declaration
precludes any Owner from carrying any public liability insurance he considers desirable;
however, Owners' policies may not adversely affect or diminish any coverage under any of the
Association's insurance policies. Duplicate copies of Owners' insurance policies shall be
deposited with the Association on request. If any loss intended to be covered by the
Association's insurance occurs and the proceeds payable are reduced due to insurance carried by
any Owner, such Owner shall assign the proceeds of the Owner's insurance to the Association, to
the extent of such reduction, for application to the same purposes as the reduced proceeds are to
be applied.
7.4 NOTICE OF EXPIRATION REQUIREMENTS. If available, each of the
Association's insurance policies must contain a provision that the policy may not be canceled,
terminated, materially modified or allowed to expire by its terms, without at least ten (10) days'
prior written notice to the Board and Declarant, and to each Owner and Mortgagee, insurer and
guarantor of a First Mortgage who has filed a written request with the carrier for such notice and
every other Person in interest who requests such notice of the insurer. In addition, fidelity
insurance shall provide that it may not be canceled or substantially modified without at least ten
(10) days' prior written notice to any insurance trustee named pursuant to Section 7.5 and to each
Fannie Mae servicer who has filed a written request with the carrier for such notice.
7.5 TRUSTEE FOR POLICIES. The Association is trustee of the interests of all
named insureds under the Association's insurance policies. Unless an insurance policy provides
for a different procedure for filing claims, all claims must be sent to the insurance carrier or
agent by certified mail and be clearly identified as a claim. The Association shall keep a record
of all claims made. All insurance proceeds under any Association insurance policies must be
paid to the Board as trustees. The Board has the authority to negotiate loss settlements with
insurance carriers, with participation, to the extent the Board desires, of First Mortgagees who
have filed written requests within ten (10) days of receipt of notice of any damage or destruction
as provided in Section 9.2.1. The Board is authorized to make a settlement with any insurer for
less than full coverage for any damage, so long as the Board acts in accordance with the standard
of care established in this Declaration. Any two (2) officers of the Association may sign a loss
claim form and release form in connection with the settlement of a loss claim, and such
signatures are binding on all the named insureds. A representative chosen by the Board may be
named as an insured, including a trustee with whom the Association may enter into an insurance
trust agreement and any successor to such trustee, who shall have exclusive authority to
negotiate losses under any insurance policy and to perform such other functions necessary to
accomplish this purpose.
7.6 ACTIONS AS TRUSTEE. Except as otherwise specifically provided in this
Declaration, the Board has the exclusive right to bind the Association and the Owners to all
matters affecting insurance carried by the Association, the settlement of a loss claim, and the
surrender, cancellation and modification of all such insurance. Duplicate originals or certificates
of all policies of insurance kept by the Association and of all renewals thereof, together with
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proof of payment of premiums, shall be delivered by the Association to all Owners and
Mortgagees who requested them in writing.
7.7 ANNUAL INSURANCE REVIEW. The Board shall review the Association's
insurance policies at least annually.
7.8 REQUIRED WAIVER. All of the Association's insurance policies insuring
against physical damage must provide, if reasonably possible, for waiver of
7.8.1 Subrogation of claims against the Owners and tenants of the Owners;
7.8.2 Any defense based on coinsurance;
7.8.3 Any right of setoff, counterclaim, apportionment, proration or
contribution due to other insurance not carried by the Association;
7.8.4 Any invalidity, other adverse effect or defense due to any breach of
warranty or condition caused by the Association, any Owner or any tenant of any Owner, or
arising from any act or omission of any named insured or the respective agents, contractors and
employees of any insured;
7.8.5 Any right of the insurer to repair, rebuild or replace, and, if the
Iinprovement 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;
7.8.6 Notice of the assignment of any Owner of the Owner's interest in the
insurance by virtue of a conveyance of any Lot;
7.8.7 Any right to require any assignment of any Mortgage to the insurer;
7.8.8 Any denial of an Owner's claim because of negligence or willful acts
by the Association or other Owners; and
7.8.9 Prejudice of the insurance by any acts or omissions of Owners that are
not under the Association's control.
ARTICLE 8
DESTRUCTION OF IMPROVEMENTS
If all or any portion of any Residence or other Improvements on a Lot is damaged or
destroyed by fire or other casualty, the Owner of the damaged Lot shall rebuild, repair or
reconstruct the Residence and Improvements in accordance with all applicable laws and codes
and in a manner which will restore them substantially to their appearance and condition
immediately before the casualty or as otherwise approved by the Board. If all or any portion of
an Owner's Lot is destroyed to such an extent that it would be impractical to restore the Lot or
rebuild damaged Improvements, the Owner shall install landscaping Improvements on the Lot in
accordance with the Rules and Regulations. The Owner of any damaged Lot or Residence and
the Board shall proceed with all due diligence, and the Owner shall cause reconstruction or
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installation of landscape Improvements (as applicable) to commence within six (6) months after
the damage occurs and to be completed within twelve (12) months after damage occurs, unless
prevented by causes beyond such Owner's reasonable control. The transfer of a damaged Lot or
a Lot with a damaged Residence to another Person will not extend the time allowed in this
Section for commencement and completion of reconstruction or installation of landscape
Improvements by the transferee. However, no such transferee will be required to commence or
complete reconstruction or installation of landscape Improvements in less than thirty (30) days
from the date the transferee acquired title to the Lot.
ARTICLE 9
RIGHTS OF MORTGAGEES
9.1 GENERAL PROTECTIONS. No amendment or violation of this Declaration
defeats or renders invalid the rights of the Mortgagee under any Mortgage encumbering one (1)
or more Lots made in good faith and for value, provided that after the foreclosure of any such
Mortgage, the foreclosed Lot(s) will remain subject to this Declaration. For purposes of any
provisions of the Governing Documents which require the vote or approval of a specified
percentage of First Mortgagees, such vote or approval is determined based on one (1) vote for
each Lot encumbered by each such First Mortgage.
9.2 ADDITIONAL RIGHTS. In order to induce the VA, FHA, Freddie Mac, Ginnie
Mae and Fannie Mae to participate in the financing of the sale of Lots, the following provisions
are added hereto (and to the extent these added provisions conflict with any other provisions of
the Governing Documents, these added provisions shall control):
9.2.1 Notices. Each Mortgagee, insurer and guarantor of a Mortgage
encumbering one (1) or more Lots, upon filing a written request for notification with the Board,
is entitled to written notification from the Association of: (a) any condemnation or casualty loss
which affects either a material portion of the Community or the Lot(s) securing the respective
First Mortgage; (b) any delinquency of sixty (60) days or more in the performance of any
obligation under the Governing Documents, including the payment of Assessments or charges
owed by the Owner(s) of the Lot(s) securing the Mortgage, which notice each Owner hereby
consents to and authorizes; and (c) a lapse, cancellation, or material modification of any policy
of insurance or fidelity bond kept by the Association.
9.2.2 Right of First Refusal. Each Owner who obtains title to a Lot
(including a First Mortgagee who obtains title to a Lot pursuant to (a) the remedies provided in
such Mortgage, (b) foreclosure of the Mortgage, or(c) deed or assignment in lieu of foreclosure),
is exempt from any "right of first refusal" created or purported to be created by the Governing
Documents.
9.2.3 Unpaid Assessments. If the First Mortgagee of a Lot obtains fee title
to the Lot either by foreclosure or by any other remedy provided under the Mortgage, then the
Mortgagee shall take title to the Lot free and clear of any claims for unpaid Assessments or
charges against the Lot to the extent the Assessments or charges accrued before the date on
which the Mortgagee acquired title to the Lot.
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9.2.4 Association Records. All Mortgagees, insurers and guarantors of First
Mortgages, on written request to the Association, shall have the right to:
(a) examine current copies of the Association's books, records and
financial statements and the Governing Documents during normal business hours;
(b) receive written notice of all meetings of Owners; and
(c) designate in writing a representative who shall be authorized to
attend all meetings of Owners.
9.2.5 Contracts. The Board may enter into such contracts or agreements on
behalf of the Association as are required in order to satisfy the guidelines of the VA, FHA,
Freddie Mac, Ginnie Mae, Fannie Mae or any similar entity, so as to allow for the purchase,
insurance or guaranty, as the case may be, by such entities of First Mortgages encumbering Lots
improved with Residences. Each Owner hereby agrees that it will benefit the Association and
the Owners, as a class of potential Mortgage borrowers and potential sellers of their Lots, if such
agencies approve the Community as a qualifying subdivision under their respective policies,
rules and regulations. Each Owner hereby authorizes his Mortgagees to furnish information to
the Board concerning the status of any Mortgage encumbering a Lot.
ARTICLE 10
ENFORCEMENT AND DISPUTE RESOLUTION
10.1 ENFORCEMENT OF GOVERNING DOCUMENTS. All disputes arising
under the Governing Documents, other than those described in Sections 10.2 and 10.3, shall be
resolved as follows:
10.1.1 Violations Identified by the Association. If the Board determines that
there is a violation of the Governing Documents, or the Board determines that an huprovement
which is the maintenance responsibility of an Owner needs installation, maintenance, repair,
restoration or painting, then the Board shall give written notice to the responsible Owner
identifying(a) the condition or violation complained of, and(b)the length of time the Owner has
to remedy the violation including, if appropriate, the length of time the Owner has to submit
plans to the Board and the length of time the Owner has to complete the work proposed in the
plans submitted to the Board. If an Owner does not perform such corrective action as is required
by the Board within the allotted time, the Board, after Notice and Hearing, may remedy such
condition or violation complained of, and the cost thereof shall be charged to the Owner and
collected by the Association using any legal means necessary. If the violation involves
nonpayment of any Assessment, then the Board may collect such delinquent Assessment
pursuant to the procedures established in Section 10.2.
10.1.2 Violations Identified by an Owner. If an Owner alleges that another
Person is violating the Governing Documents (other than nonpayment of any Assessment), the
complaining Owner must first submit the matter to the Board for Notice and Hearing before the
complaining Owner may resort to litigation for relief.
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10.1.3 Legal Proceedings. Failure to comply with the Declaration is grounds
for relief which may include, without limitation, an action to recover sums due for damages,
injunctive relief, or any combination thereof. However, the procedures established in Sections
10.1.1 and 10.1.2 above must first be followed, if they are applicable.
10.1.4 Attorney's Fees and Costs. In an action to enforce the Governing
Documents, the prevailing party shall be awarded reasonable attorney's fees and costs.
10.1.5 No Waiver. Failure to enforce any provision of this Declaration does
not waive the right to enforce that provision, or any other provision of this Declaration.
10.1.6 Limit on Expenditures. The Association may not incur litigation
expenses, including attorneys' fees, or borrow money to fund litigation, where the Association
initiates legal proceedings or is joined as a plaintiff in legal proceedings, unless the Association
first obtains the consent of a majority of the Owners (excluding the voting power of any Owner
who would be a defendant in such proceedings). Such approval is not necessary if the legal
proceedings are initiated (a) to enforce the use restrictions contained in Article 2, (b) to collect
any unpaid Assessments levied pursuant to the Governing Documents, (c) for a claim, the total
value of which is less than Five Hundred Thousand Dollars ($500,000), or (d) as a cross-
complaint in litigation to which the Association is already a party. If the Association decides to
use or transfer reserve funds or borrow funds to pay for any litigation, the Association must
notify the Owners of the decision by mail. Such notice shall provide an explanation of why the
litigation is being initiated or defended, why Operating Funds cannot be used, how and when the
reserve funds will be replaced or the loan will be repaid, and a proposed budget for the litigation.
The notice must state that the Owners have a right to review an accounting for the litigation that
will be available at the Association's office. The accounting shall be updated monthly. If the
litigation discussed in this Section 10.1.6 concerns a construction defect claim against the
Declarant and Declarant Parties (as such term is defined in Section 10.3 of this Declaration)
pursuant to the Right to Repair Law, then the requirements of Section 4.5.2 of this Declaration
must be met in addition to the requirements of this Section 10.1.6.
10.2 DELINQUENT ASSESSMENTS.
10.2.1 Delinquency. Assessments are delinquent if not paid within fifteen
(15) days after the due date established by the Association. Assessments not paid within thirty
(30) days after the due date, plus all reasonable costs of collection (including attorneys' fees) and
late charges bear interest at the maximum rate permitted by law commencing thirty (30) days
after the due date until paid. The Association need not accept any tender of a partial payment of
an Assessment and all costs and attorneys' fees attributable thereto. Acceptance of any such
tender does not waive the Association's right to demand and receive full payment.
10.2.2 Remedy. The Association may, after Notice and Hearing, collect all
delinquent assessments using any legal means necessary.
10.3 DISPUTES WITH DECLARANT PARTIES. The following dispute resolution
procedure is implemented for the Community with the intent to avoid costly and potentially
lengthy traditional court proceedings. Any dispute between the Association or any Owners (for
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purposes of this Section 10.3, the term "Owner" shall also include, to the extent permitted by
law, any guest, invitee, licensee, or lessee of an Owner), on the one hand, and the Declarant, or
any director, officer, partner, shareholder, member, employee, representative, contractor,
subcontractor, design professional, parent or subsidiary entity, affiliate, successor, assign or
agent of the Declarant (each, a "Declarant Party,"and collectively the "Declarant Parties"), on
the other hand, is a "Dispute"that shall be resolved in accordance with the following alternative
dispute resolution procedures, if the Dispute:
(a) Arises under this Declaration or otherwise relates to the Community,
including Right to Repair Law Claims; and
(b) Does not involve an amount in controversy that is subject to the Small
Claims Act(California Civil Procedure Sections 116.110, et seq.).
In addition, Owners and the Association are advised that Sections 10.3.1, 10.3.2 and
10.3.3 below are Declarant's alternative contractual non-adversarial procedures for the resolution
of Disputes concerning matters governed by the Right to Repair Law. These procedures are
different from and replace the "Pre-litigation Procedure" described in Chapter 4 of the Right to
Repair Law. All Disputes shall be resolved in accordance with the following alternative dispute
resolution procedures:
10.3.1 Notice. Any Person with a Dispute shall give written notice of the
Dispute by personal or mail service as authorized by California 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
("Respondent") describing the nature of the Dispute and any proposed remedy (the "Dispute
Notice'.
10.3.2 Right to Inspect and Correct. Commencing on the date the Dispute
Notice is delivered to the Respondent and continuing until the Dispute is resolved, the
Respondent and its representatives have the right to (a) meet with the party alleging the Dispute
at a reasonable time and place to discuss the Dispute, (b) enter the Community to inspect any
areas that are subject to the Dispute, and (c) conduct inspections and testing (including
destructive or invasive testing) in a manner deemed appropriate by the Respondent. If
Respondent elects to take any corrective action, Respondent and its representatives shall be
provided full access to the Community to take and complete the corrective action. Respondent is
not obligated to take any corrective action. Respondent, with the consent of Declarant, has the
right to select the corrective action Respondent believes is appropriate.
10.3.3 Mediation. If the Dispute is not resolved within ninety (90) days after
the Respondent receives the Dispute Notice, any party may submit the Dispute to mediation by
delivering a request for mediation ("Mediation Notice' in the same manner as allowed for
delivery of the Dispute Notice. The Dispute shall be mediated pursuant to (a) the Judicial
Arbitration and Mediation Service ("JAMS") mediation procedures in existence when the
Dispute Notice is delivered, as modified by this Section, or (b) the mediation procedures of any
successor to JAMS in existence when the Dispute Notice is delivered, as modified by this
Section, or (c) mediation procedures approved by the parties of any entity offering mediation
services that are acceptable to the parties to the Dispute (each, a "Party" and collectively, the
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"Parties'. Except as provided in Section 10.3.5, no Person shall commence litigation regarding
a Dispute without complying with this Section 10.3.3.
(a) Selection of Mediator. The mediator shall be selected within
sixty(60) days after delivery of the Mediation Notice. The mediator shall be selected by mutual
agreement of the Parties. If the Parties cannot agree on a mediator, the mediator shall be selected
by the entity providing the mediation service. No Person shall serve as a mediator in any
Dispute in which the Person has any financial or personal interest in the result of the mediation,
except by the written consent of all Parties. Before accepting any appointment, the prospective
mediator shall disclose any circumstances likely to create a presumption of bias or to prevent a
prompt commencement of the mediation process.
(b) Position Letter; Pre Mediation Conference. No later than
sixty (60) days after selection of the mediator, each Party to the Dispute shall submit a letter
("Position Statement's containing (i) a description of the Party's position concerning the issues
that need to be resolved, (ii) a detailed description of the defects allegedly at issue, and (iii) a
suggested plan of repair, remediation or correction. The mediator may schedule a pre-mediation
conference. All Parties shall attend unless otherwise mutually agreed. The mediation shall be
commenced within twenty (20) days after submittal of all Position Statements and shall be
concluded within fifteen (15) days after the mediation began unless either (A) the mediator
extends the mediation period, or (B) the Parties mutually agree to extend the mediation period.
The mediation shall be held in the County or another place mutually acceptable to the Parties.
(c) Conduct of Mediation. The mediator has discretion to conduct
the mediation in the manner in which the mediator believes is most appropriate to achieve the
goal of settling the Dispute. The mediator is authorized to conduct joint and separate meetings
with the Parties and to make oral and written recommendations for settlement. The mediator
may also obtain expert advice concerning technical aspects of the Dispute, provided the Parties
agree to and do assume the expenses of obtaining such advice. The mediator shall not have the
authority to impose a settlement on the Parties.
(d) Application of Evidence Code. The provisions of California
Evidence Code Sections 1115 through 1128 shall be applicable to the mediation process. Use
and disclosure of statements, evidence and communications offered or made in the course of the
mediation shall be governed by these sections, including the sections which preclude use of
material in future proceedings and the sections which provide for confidentiality of material.
(e) Parties Permitted at Mediation. Persons other than the Parties,
their liability insurers, Declarant, attorneys for the Parties and the mediator may attend mediation
sessions only with the permission of the Parties and the consent of the mediator. Declarant has
the right to attend the mediation session even if Declarant is not one of the Parties.
(f) Record. There shall be no stenographic, video or audio record
of the mediation process.
(g) Expenses. Each Party shall bear its own attorneys' fees and
costs incurred in connection with the mediation. All other expenses of the mediation including
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the fees charged by the mediator and the cost of any proof or expert advice requested by the
mediator shall be borne equally by each of Declarant and the Declarant Parties to whom the
Dispute is directed, unless the Parties agree otherwise. This provision does not modify any
provision of a contract between Declarant and any Declarant Party requiring indemnification or
establishing a different allocation of costs between the Declarant and the Declarant Party.
10.3.4 Mandatory Binding Arbitration. If the Parties are unable to resolve a
Dispute using the mediation procedure described in Section 10.3.3 above, then such Dispute
shall be submitted to neutral binding arbitration ("Arbitration") pursuant to the following
provisions:
(a) Waiver of Trial by Jury. By agreeing to resolve all Disputes
through binding arbitration, the Parties give up their rights to have their respective claims and
defenses decided by a judge or a jury. Instead, all Disputes will be decided by the arbitrator, or
by the appeal arbitrator(s), if applicable.
(b) Damages Pursuant To Title 7. For all Disputes, including a
breach or non-compliance of a standard set forth in the Right to Repair Law, Owners and the
Association are only entitled to actual damages. Actual damages are measured by the lesser of
the (i) cost to repair or (ii) diminution in current value of real property caused by the
nonconformity. Declarant shall not be responsible for, and shall be excused from, any
obligation, damage, loss or liability to the extent that Declarant can demonstrate any of the
affirmative defenses set forth in California Civil Code Section 945.5.
(c) Rules Applicable To All Disputes. The Parties shall use the
procedures adopted by JAMS or such other entity offering alternative 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:
(i) Location. The Arbitration shall be held in the County in
which the Community is located.
(ii) Qualifications of the Arbitrator. The Arbitration shall be
administered by a neutral and impartial person. The arbitrator shall be a retired judge or a
member or former member of the California State Bar with at least fifteen (15) years of
experience as a practicing lawyer. The arbitrator shall not have any relationship to the Parties or
interest in the Community.
(iii) Appointment of the Arbitrator. The arbitrator shall be
appointed pursuant to the stipulation of the Parties. If the Parties cannot agree on the arbitrator,
an arbitrator shall be appointed by the court with jurisdiction over the Arbitration.
(iv) Expenses. All fees charged by JAMS and the arbitrator
shall be advanced by the Declarant Parties. If a Declarant Party is the prevailing Party in the
Arbitration, the arbitrator may, in his or her discretion and only to the extent permitted by law
and the JAMS Minimum Standards of Procedural Fairness, direct the non-prevailing Parties to
reimburse the Declarant Parties all or part of the JAMS fee and arbitrator's fee advanced by the
Declarant Parties.
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(v) Participation by Other Parties. The Parties have the
right to have all necessary and appropriate Parties included as Parties to the Arbitration.
(vi) Commencement and Timing of the Arbitration. The
Arbitration shall be commenced in a prompt and timely manner in accordance with the rules of
the person or entity administering the Arbitration; or, if the rules do not specify such a date, then
a date agreed to by the Parties; or, if the Parties cannot agree,the arbitrator shall determine a date
for the commencement of the Arbitration.
(vii) Rules of Law. The arbitrator must follow California
substantive law (including statute of limitations). The arbitrator shall conduct all evidentiary
proceedings in accordance with the rules of evidence, unless expressly waived by both Parties.
The arbitrator shall be authorized to provide all recognized remedies available at law or equity
for any cause of action.
(viii) Discovery. The Parties shall be entitled to discovery,
and the arbitrator shall oversee discovery and may enforce all discovery orders in the same
manner as a trial court judge.
(ix) Statutes of Limitation. Except for procedural issues, the
Arbitration and the ultimate decisions of the arbitrator shall be subject to and bound by existing
California case and statutory law, including but not limited to, applicable statutes of limitation
established by the Right to Repair Law.
(x) Motions. The arbitrator shall have the power to hear and
dispose of motions, including but not limited to, demurrers, motions to dismiss, motions for
judgment on the pleadings, post-trial motions and summary adjudication motions, in the same
manner as a trial court judge, except the arbitrator shall also have the power to adjudicate
summarily issues of fact or law including the availability of remedies, whether or not the issue
adjudicated could dispose of an entire cause of action or defense.
(xi) Record. A confidential stenographic record of the
hearing shall be made, provided that the record shall remain confidential except as may be
necessary for post-hearing motions and any appeals.
(xii) Attorney's Fees and Costs. Each Party shall bear its
own attorneys' fees and costs, including expert witness costs, in the Arbitration.
(xiii) Written Decision. Within thirty (30) days after the
hearing is closed, the arbitrator must issue a written decision. If either Party requests it, the
arbitrator must issue a reasoned award.
(d) Procedures for Appeal of Certain Cases. In any Arbitration in
which a claim or arbitration award exceeds $500,000 in value, the Parties hereby adopt and agree
to the JAMS Optional Appeal Procedure. The following additional rules will supplement the
JAMS Optional Appeal Procedure and govern in the event of a conflict between the following
rules and the JAMS Optional Appeal Procedure.
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(i) Right of Appeal. There shall be no right to appeal
unless the oral evidence received by the arbitrator was preserved in a manner such that it can be
converted to an accurate and reliable written transcript.
(ii) Appellate Panel. An appeal shall be decided by one (1)
neutral appeal arbitrator unless either Party, within the time permitted for the appointment of the
appeal arbitrator, elects to have the appeal decided by a panel of three (3) appeal arbitrators.
Any Party who elects to have an appeal decided by a panel of three (3) appeal arbitrators agrees
to be solely responsible for the cost of having two (2) additional appeal arbitrators. The sole
appeal arbitrator, or at least one member of any panel of three (3) arbitrators, shall have prior
experience as a member of an appellate panel of the California Court of Appeal.
(iii) Issues on Appeal. The only issues that may be
considered on appeal are: (1) the award of money was excessive; (2) the award of money was
insufficient; (3) the arbitrator awarded non-monetary relief that was inappropriate; and (4) a
party who received non-monetary relief should have received other or additional relief. A
majority of the appeal arbitrators may affirm the arbitration award or make any alternative award
they find to be just, but they must not reject the arbitrator's decisions (a) that a particular Party is
entitled to relief of some nature or amount or(b) that a particular Party is responsible to provide
relief of some nature or amount.
(iv) Expenses and Costs on Appeal. The fees charged by
JAMS and the appeal arbitrator(s) shall be advanced by the Declarant Parties, except as provided
in Section 10.3.4(c)(iv) above. The Party who files the appeal must, at its sole expense, provide
JAMS and all non-appealing Parties with a certified copy of the hearing transcript, and must
provide JAMS with copies of all documentary evidence and all other tangible evidence received
by the arbitrator. If more than one Party appeals, the appealing Parties must share equally the
cost of the transcript and copies of all other documentary and tangible evidence received by the
arbitrator. The appeal arbitrators may, within thirty(30) days award costs of the nature provided
in the Federal Rules of Appellate Procedure. If a Declarant Party is the prevailing Party on
appeal, the appeal arbitrator(s) may, in his, her or their discretion and only to the extent
permitted by law and the JAMS Minimum Standards Of Procedural Fairness, include all or part
of the JAMS fee and arbitrator's fee advanced by the Declarant Parties in the award of costs on
appeal.
(v) New Evidence. The appeal arbitrators may not receive
new evidence. The appeal arbitrators must make their decision based only on the evidence that
was presented to the arbitrator, except that the appeal arbitrators may visit any site or property
involved in the Dispute.
(e) Federal Arbitration Act. Declarant, each Owner and the
Association acknowledge that because many of the materials and products incorporated into the
home are manufactured in other states, the arbitration agreement in this Section 10.3.4 evidences
a transaction involving interstate commerce and the Federal Arbitration Act set forth in 9 U.S.C.
§ 1, et seq., now in effect and as it may be hereafter amended, will govern the interpretation and
enforcement of the arbitration provisions of this Section 10.3.4. This Section 10.3.4 is to be
interpreted in accordance with Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 115
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S.Ct. 834, Basura v. U.S. Home Corp. (2002) 98 Cal. App. 4th 1205, and other Federal court
rulings. Arbitration shall be conducted pursuant to the Federal Arbitration Act and, to the extent
not inconsistent, the procedures set forth in this Section. References to California procedural law
are for guidance and shall not be construed as a waiver of any rights of the parties under the
Federal Arbitration Act.
STATUTORY NOTICE:
ARBITRATION OF DISPUTES. ASSOCIATION, EACH OWNER AND DECLARANT
AGREE TO HAVE ANY DISPUTE DECIDED BY NEUTRAL ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA
ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA ARBITRATION ACT IS
CONSISTENT WITH THE FEDERAL ARBITRATION ACT, AND ASSOCIATION,
EACH OWNER AND DECLARANT ARE GIVING UP ANY RIGHTS ASSOCIATION,
EACH OWNER AND DECLARANT MIGHT POSSESS TO HAVE THE DISPUTE
LITIGATED IN A COURT OR JURY TRIAL. ASSOCIATION, EACH OWNER AND
DECLARANT ARE GIVING UP THEIR RESPECTIVE JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THIS DECLARATION. IF THE ASSOCIATION, AN OWNER OR
DECLARANT REFUSES TO SUBMIT TO ARBITRATION, THEY 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.
WAIVER OF JURY TRIAL. IN THE EVENT THE FOREGOING ARBITRATION
PROVISION IS HELD NOT TO APPLY OR IS HELD INVALID, VOID OR
UNENFORCEABLE IN ITS ENTIRETY FOR ANY REASON, ASSOCIATION, EACH
OWNER AND DECLARANT AGREE THAT ALL DISPUTES SHALL BE TRIED
BEFORE A JUDGE IN A COURT OF COMPETENT JURISDICTION WITHOUT A
JURY. THE JUDGE IN SUCH COURT OF COMPETENT JURISDICTION SHALL
HAVE POWER TO GRANT ALL LEGAL AND EQUITABLE REMEDIES AND
AWARD COMPENSATORY DAMAGES. ASSOCIATION, EACH OWNER AND
DECLARANT HEREBY WAIVE AND COVENANT NOT TO ASSERT THEIR
CONSTITUTIONAL RIGHT TO TRIAL BY JURY OF ANY DISPUTES INCLUDING,
BUT NOT LIMITED TO, RIGHT TO REPAIR LAW CLAIMS,
MISREPRESENTATION, OR DECLARANT'S FAILURE TO DISCLOSE MATERIAL
FACTS. DECLARANT, ASSOCIATION AND EACH OWNER HEREBY COVENANT
AND AGREE THAT THEIR MUTUAL WAIVER OF JURY TRIAL SHALL BE
BINDING ON THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AND UPON ALL
PERSONS AND ENTITIES ASSERTING THEIR RIGHTS OR. CLAIMS OR
OTHERWISE ACTING ON BEHALF OF DECLARANT, ASSOCIATION OR ANY
OWNER AND THEIR SUCCESSORS AND ASSIGNS.
10.3.5 Statutes of Limitation. Nothing in this Section 10.3 shall be
considered to toll, stay, reduce or extend any applicable statute of limitations; provided,
however, that Declarant, the Declarant Parties, the Association and any Owners may commence
a legal action which in the good faith determination of that Person is necessary to preserve that
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Person's rights under any applicable statute of limitations so long as no further steps in
processing the action are taken except those authorized in this Section 10.3.
10.3.6 Limitation on Amendment. THIS SECTION 10.3 MAY NOT BE
AMENDED WITHOUT DECLARANT'S PRIOR WRITTEN CONSENT.
10.3.7 Covenant Regarding Proceeds. If the Association or any Owner
prevail in a Dispute, and the judgment thereon or settlement terms thereof includes a monetary
award, then the proceeds of the award shall be first applied to the remediation of the condition
that gave rise to the Dispute.
ARTICLE 11
DURATION AND AMENDMENT
11.1 DURATION. This Declaration shall continue in full force unless a declaration of
termination satisfying the requirements of an amendment to this Declaration established in
Section 11.2 is Recorded.
11.2 TERMINATION AND AMENDMENT.
11.2.1 Amendment Approval. Notice of the subject matter of a proposed
amendment to this Declaration or a Supplemental Declaration in reasonably detailed form must
be included in the notice of any Association meeting or election at which a proposed amendment
is to be considered. To be effective, a proposed amendment (other than amendment or
termination by Declarant as described in Section 11.2.7(a) or minor corrections by Declarant or
by the Board, as described in Sections 11.2.7(b) or 11.2.8 respectively) must be adopted by the
vote, in person or by proxy, or written consent of Owners representing not less than (a) two-
thirds (2/3) of the voting power of each Class of the Association, and (b)two-thirds (2/3) of the
Association's voting power represented by Owners other than Declarant. So long as Declarant
has the right to appoint a majority of the members of the Board, and the VA or FHA is making or
insuring a Mortgage in the Community, the prior approval of the VA or FHA (whichever is
making or insuring a Mortgage) is required for any amendment to the Declaration for the
purpose of terminating the Declaration or dissolving the Association (except pursuant to merger
or consolidation).
11.2.2 Mortgagee Consent. In addition to the consents required by
Section 11.2.1, the Mortgagees of at least fifty-one percent (51%) of the First Mortgages on all
the Lots in the Community who have requested the Association notify them of proposed action
requiring the consent of a specified percentage of First Mortgagees must approve any
amendment which is of a material nature, as follows:
(a) Any amendment which affects or purports to affect the validity
or priority of Mortgages or the rights or protection granted to Mortgagees, insurers or guarantors
of First Mortgages.
(b) Any amendment which would require a Mortgagee after it has
acquired a Lot through foreclosure to pay more than its proportionate share of any unpaid
Assessment or Assessments accruing before such foreclosure.
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(c) Any amendment which would or could result in a Mortgage
being canceled by forfeiture, or in a Lot not being separately assessed for tax purposes.
(d) Any amendment relating to the insurance provisions in Article
7.
(e) Any amendment which would restrict an Owner's right to sell
or transfer his or her Lot.
(f) Any amendment which would subject any Owner to a right of
first refusal or other such restriction, if such Lot is proposed to be transferred.
11.2.3 Amendment of Right to Repair Law Provisions. Except for any
amendment made by Declarant as authorized in Section 11.2.7, neither this Section 11.2.3 nor
**[Sections 1.1.30, 1.1.46, 1.1.47, 2.1.1, 2.1.1(a)(vi), 2.1.2(c)(i), 3.9, 4.2.4, 4.5, 10.1.6, 10.3,
11.2.7, 11.2.8, 13.5 or 13.61** may be amended without the prior written approval of Declarant
until the expiration of all applicable statutes of limitation or repose for the filing of a complaint
or suit or other legal remedies against Declarant or its affiliates under the Right to Repair Law
(including tolling periods).
11.2.4 Termination Approval. Termination of this Declaration requires
approval of the Owners as provided in Section 11.2.1, and until the expiration of all applicable
statutes of limitation or repose for the filing of a complaint or suit or other legal remedies against
Declarant or its affiliates under the Right to Repair Law (including tolling periods), the prior
written approval of Declarant.
11.2.5 Notice to Mortgagees. Each Mortgagee of a First Mortgage on a Lot
in the Community which receives proper written notice of a proposed amendment or termination
of this Declaration or any Supplemental Declaration with a return receipt requested is deemed to
have approved the amendment or termination if the Mortgagee fails to submit a response to the
notice within thirty(30) days after the Mortgagee receives the notice.
11.2.6 Certificate. A copy of each amendment must be certified by at least
two (2) Association officers. The amendment becomes effective when a Certificate of
Amendment is Recorded. The certificate, signed and sworn to by two (2) Association officers
that the requisite number of Owners and Mortgagees have approved the amendment, when
Recorded, is conclusive evidence.of that fact. The Association shall keep in its files for at least
four (4) years the record of all such approvals. The certificate reflecting any termination or
amendment which requires the written consent of any of the Mortgagees of First Mortgages must
include a certification that the requisite approval of such First Mortgagees was obtained.
11.2.7 Amendment or Termination by Declarant.
(a) Before First Closing. Notwithstanding any other provisions in
this Article, (i) Declarant may unilaterally amend or terminate this Declaration for any purpose,
until the first Close of Escrow in the Community, and (ii) Declarant may unilaterally amend or
terminate a Supplemental Declaration for any purpose, until the Close of Escrow for the Lot or
Lots affected by the Supplemental Declaration to be amended or terminated. Amendment or
_53_ 6177-120122\CCRS\l 197966.7
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termination shall not be effective until Declarant has Recorded in the Official Records an
instrument signed and acknowledged by Declarant.
(b) Minor Corrections. Notwithstanding any other provisions of
this Article, Declarant (as long as Declarant owns any portion of the Community) may
unilaterally amend this Declaration or a Supplemental Declaration by Recording a written
instrument signed by Declarant to: (1)conform this Declaration or any Supplemental Declaration
to the rules, regulations or requirements of FHFA, VA, FHA, the California Bureau of Real
Estate, Fannie Mae, Ginnie Mae, Freddie Mac, or the County or City, (2) amend, replace or
substitute any exhibit to correct typographical or engineering errors, (3) include any exhibit that
was inadvertently omitted at the time of Recording, (4) comply with any City, County, State or
Federal laws or regulations, (5) correct typographical errors, (6) supplement this Declaration
with provisions which pertain to rights and obligations of Declarant, the Association or Owners
arising under the Right to Repair Law, and (7) change any exhibit or portion of an exhibit to
conform to as-built conditions.
Nothing in this Section 11.2.7 may be amended or terminated without the prior
written approval of Declarant.
11.2.8 Minor Corrections by the Board. The Board may amend this
Declaration or a Supplemental Declaration for the reasons stated in parts (2), (3), (4), (5), or (7)
of Section 11.2.7(b) above by Recording a written instrument signed by two officers of the
Association certifying that the Board approved the amendment for the purposes described
therein. However, until the end of all applicable statutes of limitation or repose for the filing of a
complaint or suit or other legal remedies against Declarant or its affiliates under the Right to
Repair Law (including tolling periods), the Board must obtain the prior written approval of
Declarant to any amendment approved by the Board, or any other amendment by the Board or
Association that affects the rights of Declarant under the Right to Repair Law, this Declaration or
any Supplemental Declaration, or for any amendment by the Board concerning matters discussed
in Article 3 or Article 13.
ARTICLE 12
GENERAL PROVISIONS
12.1 MERGERS OR CONSOLIDATIONS. In a merger or consolidation of the
Association with another association, the property, rights and obligations of the Association may,
by operation of law, be transferred to another surviving or consolidated association or,
alternatively, the property, rights and obligations of another association may, by operation of
law, be added to the property, rights and obligations of the Association as a surviving
corporation pursuant to a merger. The surviving or consolidated association may administer and
enforce the covenants, conditions and restrictions established by this Declaration governing the
Community, together with the covenants and restrictions established on any other property, as
one (1)plan. Any such merger or consolidation requires the prior written approval of the VA.
12.2 NO PUBLIC RIGHT OR DEDICATION. Nothing in this Declaration is a gift
or dedication of all or any part of the Community to the public, or for any public use.
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12.3 NOTICES. Except as otherwise provided in this Declaration, notice to be given
to an Owner must be in writing and may be delivered personally to the Owner. Personal delivery
of such notice to one (1) or more co-Owners, or any general partner of a partnership owning a
Lot, constitutes delivery to all Owners. Personal delivery of such notice to any officer or agent
for the service of process on a corporation or limited liability company constitutes delivery to the
corporation or limited liability company. Such notice may also be delivered by regular United
States mail, postage prepaid, addressed to the Owner at the most recent address furnished by
such Owner to the Association or, if no such address has been furnished, to the street address of
such Owner's Lot. Such notice is deemed delivered three (3) business days after the time of such
mailing, except for notice of a meeting of Owners or of the Board, in which case the notice
provisions of the Bylaws control. Any notice to be given to the Association may be delivered
personally to any member of the Board, or sent by United States mail,postage prepaid, addressed
to the Association at such address as may be fixed and circulated.to all Owners.
12.4 CONSTRUCTIVE NOTICE AND ACCEPTANCE. Every Person who owns,
occupies or acquires any right, title, estate or interest in or to any Lot or other portion of the
Community consents and agrees to every limit, restriction, easement, reservation, condition and
covenant contained in this Declaration, whether or not any reference to these restrictions is in the
instrument by which such Person acquired an interest in the Community. As soon as practicable
before sale or transfer of title to a Lot or other separate interest in the Community or execution of
a real property sales contract therefor, the Owner of the Lot or other separate interest shall
provide to the purchaser copies of the Governing Documents.
ARTICLE 13
DECLARANT'S RIGHTS AND RESERVATIONS
If there is a conflict between any other portion of the Governing Documents and this
Article, this Article shall control.
13.1 CONSTRUCTION RIGHTS. Until Declarant no longer owns any portion of
the Community, Declarant has the right, without obtaining the approval of the Association, to
(a) subdivide or re-subdivide the portions of the Community owned by Declarant, (b) complete
or modify Improvements in any portion of the Community that is owned or leased solely or
partially by Declarant, (c) alter Improvements and Declarant's construction plans and designs,
(d)modify Declarant's development plan for the Community, including reshaping the Lots, and
constructing dwellings of larger or smaller sizes, values, and of different types, (e) modify,
extend, postpone or terminate the completion of the Community, for any purpose, including
changed economic conditions, changes in Declarant's business plans or other factors determined
by Declarant in its sole discretion, and (f) construct additional or different Improvements, all as
Declarant considers advisable in the course of development of the Community. Declarant may
temporarily erect barriers, close off and restrict access to portions of the Community as
reasonably necessary to allow Declarant to exercise the rights reserved in this Section so long as
an Owner's access to that Owner's Lot is not eliminated.
13.2 SALES AND N I RKETING RIGHTS. Declarant shall have the following
rights related to sales and marketing, all of which may be exercised unilaterally by Declarant in
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Declarant's sole discretion. The rights reserved in this Section will terminate on the date of the
last Close of Escrow for sale of a Lot in the Community.
13.2.1 Marketing and Sales Facilities. Declarant's rights under this
Declaration include the right to install and maintain such structures, displays, signs, billboards,
flags and sales offices in the Community, and the right to use any land, Lots or mobile homes
owned or leased by Declarant in the Community for model home purposes, or for the operation
of real estate sales offices or leasing offices, all as may be reasonably necessary to conduct the
business of completing construction and disposing of the Lots by sale,resale, lease or.otherwise.
13.2.2 Use of Shared Drive. Declarant reserves for its benefit, and for the
benefit of its prospective purchasers of Lots who are entitled to the nonexclusive use of the
Shared Drive, without further cost for access, ingress, egress, use or enjoyment, the right to use
the Shared Drive to (a) show the Community to prospective purchasers, and (b) dispose of the
Community as provided in this Declaration. Declarant, its employees, agents and prospective
purchasers are also entitled to the nonexclusive use of parking spaces and any sidewalks for
ingress, egress and vehicle parking as necessary in connection with the marketing and sale of the
Lots. Neither Declarant, nor its employees, agents nor prospective purchasers shall make any
use of the Shared Drive, parking spaces or any sidewalks that will unreasonably interfere with
the use and enjoyment thereof by the Owners.
13.3 CREATING ADDITIONAL EASEMENTS. At any time before the Close of
Escrow for a Lot, Declarant reserves the right to establish on that Lot additional licenses,
easements, reservations and rights-of-way to itself, to utility companies, or to others as Declarant
determines are reasonably necessary to the proper development and disposal of the Community.
13.4 ARCHITECTURAL RIGHTS. Declarant and any Person to whole Declarant
may assign all or a portion of its exemption under this Declaration need not seek or obtain Board
approval of any Improvements constructed anywhere on the Community by Declarant or such
Person.
13.5 DEVELOPER EXEMPTION. Declarant is exempt from the application of
Article 2 of this Declaration and from all other restrictions on the use and enjoyment of real
property and all maintenance covenants that are established for Owners under this Declaration,
or in a Supplemental Declaration or in any other Governing Documents, except to the extent that
a particular provision expressly includes Declarant among the parties covered thereby.
13.6 ASSIGNMENT OF RIGHTS. Declarant may assign any or all of its rights and
exemptions under this Article 13, and any other Declarant rights, exemptions, appointment
powers, veto powers or easements in the Governing Documents to any successor in interest to
any portion of Declarant's interest in the Community by a Recorded written assignment.
13.7 AMENDMENT. No amendment may be made to this Article without the prior
written approval of Declarant.
13.8 PARTICIPATION IN ASSOCIATION. The Association shall provide
Declarant with written notice of the transfer of any Lot and all notices and other documents to
which a Mortgagee is entitled pursuant to this Declaration, provided that Declarant shall not be
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required to make written request for such notices and other documents. Commencing on the date
on which Declarant no longer has a representative on the Board, the Association shall provide
Declarant with written notice of all meetings of the Board that any Owner is entitled to attend
(each, an "Open Meeting') as if Declarant were an Owner, and Declarant shall be entitled to
have a representative ("Declarant's Representative') present at all Open Meetings. However,
the Board has the power to withhold information from the Declarant's Representative and to
exclude the Declarant's Representative from any Open Meeting or portion thereof if, in the good
faith judgment of the Board, access to such information or attendance at the Open Meeting
would adversely affect the attorney-client privilege between the Association and its counsel or if,
in the good faith judgment of the Board, access to such information or attendance at an Open
Meeting would not be in the best interest of the Association or the Owners. The Declarant's
Representative shall not be entitled to attend executive sessions of the Board. The Declarant's
Representative will attend any Open Meeting it is permitted to attend in an observer capacity
only, and it shall not have any right to vote on matters coming before the Board or Owners.
Declarant's Representative shall be entitled to receive copies of the minutes of all Open
Meetings. The Declarant's rights to receive written notice of meetings and to have a Declarant's
Representative present at such meeting shall continue until the later of the date that is ten (10)
years after the first Close of Escrow in the Community, or the date of expiration of all applicable
statutes of limitations or repose for the filing of a complaint or suit or other legal remedies
against Declarant under the Right to Repair Law(including any tolling periods).
13.9 DECLARANT APPROVAL OF ACTIONS.
13.9.1 General Rights. Until Declarant no longer owns a portion of the
Community, Declarant's prior written approval is required for any amendment to the Governing
Documents which would impair or diminish Declarant's right to complete the Community or sell
or lease dwellings therein.
13.9.2 Limit on Actions. Until the expiration of all applicable statutes of
limitations or repose for the filing of a complaint or suit or other legal remedies against Declarant
under the Right to Repair Law (including any tolling periods), the following actions, before
being undertaken by the Association, must first be approved in writing by Declarant:
(a) Any amendment or action requiring the approval of First
Mortgagees;
(b) Any significant reduction of Association maintenance or other
services; or
(c) Any modification or termination of any provision of the
Governing Documents benefiting Declarant.
SIGNATURES ON FOLLOWING PAGE]
-57- 6177-120122\CCRS\1197966.7
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ISIGNATUREPAGEToDECLARATIONOFCOVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS]
This Declaration is dated for identification purposes AM11. , 2015.
25 MOONSTONE PARTNERS, LLC,
a California limited liability company,
By:
Print Name:
Title:
Declarant
A:notary public or other officer completing this certificate verifies only the identity of the individual who signed the
doment to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
STATE OF CALIFORNIA
COUNTY OF -" /r
On before me, —+`c��✓ 1 �.� C(.��/ c� ���1' L/!s
(here insert name and title of the offi er)
personally appeared DA/V/eL %��y 1 1�261
who proved to me on the basis of satisfactory evidence to be the persort('s) whose name(.81 is/�
subscribed to the within instrument and acknowledged to me that he/sfe/tVy executed the same
in his/126r/thef authorized capacity(ie95, and that by his/Vr/tliefr signature(s) on the instrument
the person,(, or the entity upon behalf of which the personk6 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. JUDY PASSERELLO
_ - �• Commission # 1929562
�.
a -E`; ��,,�� Notary Public-California z
_ Z '�"' ., Orange County >.
Si ature: FfL %�` My Comm.Expires Apr 17,2015
(SEAL)
-58- 6177-120122\CURS\1197966.7
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SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in and under that certain Deed
of Trust dated September 10, 2014, and recorded on October 1, 2014, as Instrument No.
2014000399428, in the Official Records of Orange County, California (the "Deed of Trust',
which Deed of Trust is by and between 25 MOONSTONE PARTNERS, LLC, a California
limited liability company, as Trustor, and CHICAGO TITLE COMPANY, a California
corporation as Trustee, and CATHAY BANK, a California Banking Corp, as Beneficiary,
expressly subordinates said Deed of Trust and its beneficial interest thereunder to the foregoing
Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for
Moonstone, as amended or restated ("Declaration"), to any Supplemental Declaration, as
amended or restated, and to all easements to be conveyed to the Association in accordance with
the Declaration and any Supplemental Declaration. By executing this Subordination, the
undersigned agrees that should the undersigned acquire title to all or any portion of the
Community by foreclosure (whether judicial or nonjudicial), deed-in-lieu of foreclosure or any
other remedy in or relating to the Deed of Trust, the undersigned will acquire title subject to the
provisions of the Declaration and any applicable Supplemental Declaration, which shall remain
in full force and effect.
Dated: ,, ��— , 2015 CATHAY BANK,
a California Banking C rp
r
By:
Print Name: _Eddie Chang
Title: E.V.P. & Manager
By:
Print Name: <
Title:
NOTARIAL ACKNOWLEDGMENT ONFOLL0WING PAGE]
-59- 6177-120122\CCRS\I 197966.7
3/11/15
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
COUNTY OF Los Angeles
On March 11, 2016 ,before me, Suet Shan Sun, a Notary Public
(here insert name and title of the officer)
personally appeared PHd i P change ---
who proved to me on the basis of satisfactory evidence to be the personN whose name(ij is/
subscribed to the within instrument and acknowledged to me that he%bL&tbxycexecuted the same
in his/bnc6dxir authorized capacity(iex), and that by hisi11wrWak signature(* on the instrument
the person(s), or the entity upon behalf of which the person(x) 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.
SUET SHAH SUN
01
(Seal) O�� #F 2014ssion 411
Signature $ '� Notary Public-Calitornia
Los Angeles.County
y Comm.Ex ires Mar 24,11 2017
_60_ 6177-120122\CCRS\l 197966.7
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EXHIBIT A
ARTICLES OF INCORPORATION OF THE ASSOCIATION
6177-120122\CCRS\1197966.6
3/9/15
ARTICLES OF INCORPORATION
OF
MOONSTONE MAINTENANCE ASSOCIATION
ONE: The name of this corporation is Moonstone Maintenance Association (the
"Corporation'.
TWO: This Corporation is a nonprofit mutual benefit corporation organized under the
California Nonprofit Mutual Benefit Corporation Law. The purpose of this Corporation is to engage in
any lawful act or activity, other than credit union business, for which a corporation may be organized
under such law.
THREE: The Corporation's initial agent for service of process is Ray Dorame, whose
business address is 20201 SW Birch Street, Suite 100,Newport Beach, California 92660.
FOUR: The Corporation's street and mailing address is 20201 SW Birch Street, Suite 100,
Newport Beach, California 92660.
FIVE: The Corporation is organized and operated exclusively as a homeowner's
association within the meaning of Section 23701t of the California Revenue and Taxation Code and
shall have and exercise any and all powers, rights and privileges which a corporation organized under
the California Nonprofit Mutual Benefit Corporation Law may now or hereafter have or exercise,
provided that the Corporation shall not, except to an insubstantial degree, engage in any activities or
exercise any powers that are not in furtherance of the specific purpose of the Corporation, which is to
operate a homeowners association within the meaning of Section 23701t of the California Revenue and
Taxation Code and Section 528 of the Internal Revenue Code.
SIX: The classes of membership in the Corporation and the voting and other rights and
privileges of members are set forth in the Bylaws of the Corporation. So long as two classes of
membership make up the voting power of the Corporation, the amendment of these Articles of
Incorporation shall require the assent(by vote or written consent) of(i) a bare majority of the Board of
Directors of the Corporation, and (ii) Corporation members representing a bare majority of the voting
power of each class of members. After conversion of the Corporation's Class B membership to Class
A membership, the amendment of these Articles of Incorporation shall require the assent (by vote or
written consent) of (i) a bare majority of the Board of Directors of the Corporation, (ii) Corporation
members representing a bare majority of the total voting power of the members of the Corporation, and
(iii) Corporation members representing a bare majority of the voting power of the members other than
the subdivider of the Community. Notwithstanding the foregoing, the percentage of voting power
required to amend a specific clause of these Articles shall not be less than the prescribed percentage of
affirmative votes required for action to be taken under that clause.
SEVEN: The Corporation has no managing agent.
The undersigned, who is the incorporator of the Corporation, has executed these Articles of
Incorporation on , 2015.
Incorporator
2294-00159\AMC689\ARTINCRP\1244986.1
3/10/15
EXIIIBIT B
BYLAWS OF THE ASSOCIATION
6177-120122\CCRS\l 197966.6
3/9/15
BYLAWS
OF
MOONSTONE MAINTENANCE ASSOCIATION,
a California nonprofit mutual benefit corporation
2294-00159\BYLAW S\1244985.1
3/10/15
TABLE OF CONTENTS
BYLAWS
OF
MOONSTONE MAINTENANCE ASSOCIATION,
a California nonprofit mutual benefit corporation
Page
ARTICLE I GENERAL PLAN .............................................................................................I
1.1 Definitions..................................................................................................... 1
1.2 Name..................................................................................................................1
1.3 Principal Office..................................................................................................1
1.4 Other Offices......................................................................................................1
1.5 Limitations.........................................................................................................I
ARTICLEII MEMBERS........................................................................................................2
2.1 Members ............................................................................................................2
2.2 Rights of Members.............................................................................................2
2.3 Meetings of the Members ........................... .....................2
..................................
2.4 Special Meetings................................................................................................2
2.5 Notice Requirements for Member Meetings......................................................2
2.6 Quorum.........................................:....................................................................3
2.7 Adjournment and Notice of Adjourned Meetings .............................................3
2.8 Voting................................................................................................................4
2.9 Action by Written Consent................................................................................4
2.10 Action By Electronic Transmission...................................................................4
ARTICLE III DIRECTORS .....................................................................................................4
3.1 General Corporate Powers.................................................................................4
3.2 Specific Powers..................................................................................................4
3.3 Authorized Number of Directors.......................................................................5
3.4 Election, Term of Office and Removal..............................................................6
3.5 Vacancies on Board...........................................................................................6
3.6 Directors' Meetings .......................................................... ........6
.........................
3.7 Action Without A Meeting................................................................................8
3.8 Compensation and Reimbursement...................................................................8
3.9 Committees........................................................................................................8
ARTICLEIV OFFICERS.........................................................................................................9
4.1 Officers ..............................................................................................................9
4.2 Selection of Officers..........................................................................................9
4.3 Other Officers .....................................................................................................9
4.4 Responsibilities of Officers..............................................................................10
4.5 Reimbursement................................................................................................10
4.6 Removal of Officers.........................................................................................11
4.7 Resignation of Officers....................................................................................11
_i_ 2294-00159\BYLAWS\1244985.1
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TABLE OF CONTENTS
(continued)
Page
4.8 Vacancies in Office..........................................................................................I I
ARTICLE V INDEMNIFICATION......................................................................................11
5.1 Definitions........................................................................................................11
5.2 Subject to California Non-Profit Mutual Benefit Corporation Law................12
5.3 Limitations.......................................................................................................12
5.4 Advance of Expenses.......................................................................................12
5.5 Contractual Rights of Non-Directors and Non-Officers..................................12
5.6 Insurance..........................................................................................................12
ARTICLE VI RECORDS AND REPORTS...........................................................................12
6.1 Maintenance of Corporate Records.................................................................12
6.2 Inspection by Directors....................................................................................12
6.3 Annual Report..................................................................................................13
6.4 Annual Statement of Certain Transactions and Indemnifications...................13
ARTICLE VII NOTICE AND HEARING PROCEDURE.....................................................13
7.1 Initial Complaint..............................................................................................13
7.2 Scheduling Hearings............................................. ...13
........................................
7.3 Conduct of Hearing..........................................................................................14
7.4 Imposition of Sanctions ...................................................................................14
7.5 Limits on Remedies.........................................................................................14
ARTICLE VIII MISCELLANEOUS........................................................................................14
8.1 Checks, Drafts and Documents........................................................................14
8.2 Execution of Documents..................................................................................15
8.3 Reference to Specific Statute...........................................................................15
8.4 Construction.....................................................................................................15
8.5 Amendment of Bylaws ....................................................................................15
CERTIFICATE OF SECRETARY
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BYLAWS
OF
MOONSTONE MAINTENANCE ASSOCIATION,
a California nonprofit mutual benefit corporation
ARTICLE I
GENERAL PLAN
1.1 DEFINITIONS.
1.1.1 Electronic Transmission. Electronic transmission by or to the
Association as defined in Sections 20 and 21 of the California Corporations Code,respectively.
1.1.2 IRC. The Internal Revenue Code of 1986, as amended and any
subsequent United States internal revenue law.
1.1.3 Members. Owners of Lots within the Community.
1.1.4 Principal Office. The principal executive office for transaction of the
activities and affairs of the Association.
1.1.5 R&TC. The California Revenue and Taxation Code.
1.1.6 Other Definitions. Any capitalized terms not otherwise defined in
these Bylaws shall have the same meaning given the terms in the Declaration of Covenants,
Conditions, Restrictions and Reservation of Easements for Moonstone("CC&R's'�.
1.2 NAME. The name of this corporation is Moonstone Maintenance Association.
1.3 PRINCIPAL OFFICE. The Principal Office shall be located at the specific
location designated by resolution of the Board. The Board may change the Principal Office from
one location to another.
1.4 OTHER OFFICES. The Board may at any time establish branch or subordinate
offices at any place or places where the Association elects and is qualified to conduct its
activities.
1.5 LIMITATIONS.
1.5.1 The Association is organized exclusively for the purpose of operating
as a homeowners association within the meaning of Section 528 of the IRC and Section 23701t
of the R&TC, and carrying out such duties as described in the CC&Rs. The Association shall
not, except to an insubstantial degree, engage in any activities or exercise any powers that are
not in furtherance of the purposes of the Association. The Association shall not carry on any
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other activities not permitted to be carried on by a homeowners association within the meaning
of Section 528 of the IRC and Section 23701t of the R&TC, and as described in the CC&Rs.
1.5.2 The Association is not organized, and shall not be operated, for
pecuniary gain or profit.
ARTICLE II
MEMBERS
2.1 MEMBERS. The Members of the Association are the Owners of Lots in the
Community, as described in the CC&Rs.
2.2 RIGHTS OF MEMBERS. The Members shall have the right to vote, as set
forth in these Bylaws, on the election of directors, on the disposition of all or substantially all of
the assets of the Association, on any merger and its principal terms and any amendment of those
terms, on any election to dissolve the Association and on any matter provided in these Bylaws.
The Members shall have all such other rights afforded members under the California Non-Profit
Mutual Benefit Corporation Law.
2.3 MEETINGS OF THE MEMBERS.
2.3.1 Place of Meeting. Meetings of the Members shall be held at any place
within or outside California designated by the Board or by the consent of the Members, given
before or after the meeting. In the absence of any such designation, meetings of the Members
shall be held at the Principal Office of the Association.
2.3.2 Annual Meeting. An annual meeting of the Members shall be held at
such time, on such date, and at such place as the Board may fix. At this meeting, directors shall
be elected and any other proper business may be transacted, subject to Sections 2.5.1 and 2.9 of
these Bylaws.
2.4 SPECIAL MEETINGS. Special meetings of the Members may be called
pursuant to the procedure described in the California Non-Profit Mutual Benefit Corporation
Law.
2.5 NOTICE REQUIREMENTS FOR MEMBER MEETINGS.
2.5.1 General Notice Requirements. Whenever the Members are required
or permitted to take any action at a meeting, a written notice of the meeting shall be given, in
accordance with this Section 2.5. The notice shall specify the place, date, and hour of the
meeting, the means of Electronic Transmission by and to the Association or electronic video
screen communication, if any, by which the Members may participate in the meeting, and, (1)
for a special meeting, the general nature of the business to be transacted and that no other
business may be transacted, or (2) for the annual meeting, those matters that the Board, at the
time notice is given, intends to present for action by the Members, but any proper matter may
be presented at the meeting for such action. The notice of any meeting at which directors are to
be elected shall include the names of all persons who are nominees when notice is given.
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2.5.2 Notice of Certain Agenda Items. Approval by the Members of any of
the following proposals is valid only if the notice or written waiver of notice states the general
nature of the proposal or proposals so approved:
(a) Removing a director without cause;
(b) Filling vacancies on the Board;
(c) Amending the Articles; or
(d) Electing to wind up and dissolve the Association.
2.5.3 Manner of Giving Notice. Notice of any meeting of the Members
shall be in writing and shall be given at least ten (10), but no more than sixty(60) days, before
the meeting date; provided, however, that if notice is given by third class mail, and the notice is
not mailed by first-class, registered or certified mail, that notice shall be given not less than
thirty (30) days before the meeting. The notice shall be given personally, by Electronic
Transmission by the Association, or by mail, or by other means of written communication, and
shall be addressed to the Members, at the addresses of the Members appearing on the books of
the Association or at the addresses given by the Members to the Association for purposes of
notice. If no address appears on the books of the Association and no address has been so given,
notice shall be deemed to have been given if either (1) notice is sent to the Member at the
Principal Office, or(2) notice is published at least once in a newspaper of general circulation in
the county in which the Principal Office is located.
2.5.4 Affidavit of Mailing Notice. An affidavit of the mailing of any notice
of any Member meeting, or of the giving of such notice by other means,may be executed by the
Secretary, Assistant Secretary, or any transfer agent of the Association, and if so executed, shall
be filed and maintained in the minute book of the Association.
2.6 QUORUM. Except as otherwise provided in these Bylaws, the presence in
person or by proxy of at least fifty percent (50%) of the Association's voting power constitutes a
quorum of the Members. Members present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment, despite the withdrawal of enough
Members to leave less than a quorum, if any action taken (other than adjournment) is approved
by at least a majority of a quorum. Unless otherwise provided in the Governing Documents,
any action which may be taken by the Members may be taken by a majority of a quorum of the
Association's voting power.
2.7 ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any
meeting of the Members may be adjourned from time to time by the vote of a majority of the
Members present. No meeting may be adjourned for more than forty-five (45) days. When a
meeting of the Members is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place to which the meeting is adjourned (or the means of
Electronic Transmission by and to the Association or electronic video screen communication, if
any,by which the Members may participate) are announced at the meeting at which adjournment
is taken. If after adjournment a new record date is fixed for notice or voting, a notice of the
adjourned meeting shall be given to the Members.
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2.8 VOTING.
2.8.1 Eligibility to Vote. Subject to the provisions of the California Non-
Profit Mutual Benefit Corporation Law, all Members in good standing with the Association
shall be entitled to vote at any meeting of the Members.
2.8.2 Manner of Casting Votes. Voting may be by voice or ballot, except
that any election of directors must be by ballot if demanded by a member at the meeting before
the voting begins.
2.9 ACTION BY WRITTEN CONSENT. Any action required or permitted to be
taken by the Members may be taken without a meeting, if a majority of the Members consent in
writing to the action. The written consent shall be filed with the minutes of the proceedings of
the Members. The action by written consent shall have the same force and effect as the vote of
the Members.
2.10 ACTION BY ELECTRONIC TRANSMISSION. If authorized by the Board in
its sole discretion, and subject to the requirement of Member consent found at California
Corporations Code Section 20(b) and any Rules and Regulations as the Board may adopt,
Members not physically present at a meeting of Members may participate and vote in such
meeting by Electronic Transmission, whether that meeting is to be held at a designated place or
in whole or in part by means of Electronic Transmission, in accordance with Corporations Code
Section 7510(f).
ARTICLE III
DIRECTORS
3.1 GENERAL CORPORATE POWERS. As provided in the California Non-
Profit Mutual Benefit Corporation Law and subject to applicable laws and any limitations in the
Articles or the Bylaws, the Association's activities and affairs shall be managed, and all
corporate powers shall be exercised, by or under the direction of the Board. The Board may
delegate the management of the activities of the Association to any person or persons, a
management company or committees however composed, provided that the activities and affairs
of the Association shall be managed and all corporate powers shall be exercised under the
ultimate direction of the Board.
3.2 SPECIFIC POWERS. Without prejudice to the general powers set forth in
Section 3.1, but subject to the same limitations, the directors shall have the following powers:
3.2.1 Administrative.
(a) Officer, Agents & Employees. Select, appoint and remove, in
the sole discretion of the Board, all officers, agents, and employees of the Association; prescribe
powers and duties for them that are consistent with the law, the Articles, and these Bylaws; fix
their compensation, if any; and require from them any security they deem necessary for faithful
performance of their duties;
(b) Principal Office. Change the locations of the Principal Office;
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(c) Corporate Seal. Adopt and use a corporate seal and alter the
form of the seal;
(d) Incur Indebtedness. Borrow money and incur indebtedness on
behalf of the Association and cause to be executed and delivered for the Association's purposes,
in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecations, and other evidences of debt and securities;
(e) Indemnification. Indemnify the Association's agents against
expenses,judgments, fines, settlements and other amounts received as a result of such agency as
provided in Article V of these Bylaws;
(f) Insurance. Contract and pay for insurance covering and
protecting against such damages or injuries as the Board deems advisable (which may include,
without limitation, medical expenses of persons injured on property the Association owns or
uses and indemnification of the Association's agents as discussed in Article V);
(g) Delegation. Delegate some of its powers in accordance with
applicable law and these Bylaws;
(h) Records. Keep, or cause to be kept, a complete record of all
acts and affairs of the Association;
(i) Funding. Collect assessments as provided in the CC&Rs; and
0) Power to Contract and Assume Obligations. Enter into
agreements with any third party, including any affiliated or related third party, which agreements
will be legally binding upon the Association when executed by any one of the officers identified
in Section 4.1 below, and assume obligations, incur liabilities, and secure its obligation.
3.2.2 CC&Rs. Perform such duties as are specified in the CC&Rs.
3.3 AUTHORIZED NUMBER OF DIRECTORS.
3.3.1 Authorized Number of Directors. The number of Directors of the
Association shall be three (3) persons, unless changed by a duly adopted amendment to this
Section.
3.3.2 Criteria for Directors. The directors of the Association shall satisfy
the following criteria:
(a) A director shall be a Member in Good Standing of the
Association and a resident of the Community. "Good Standing" shall mean that (i) the
Member's Membership rights have not been suspended as provided for in the Governing
Documents for the Association; (ii) the Member has been in compliance with the Governing
Documents for the three (3) months immediately preceding the date of the election at which the
Member is being considered for election to the Board; and (iii) the Member has been current in
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the payment of all Annual Assessments for the three (3) months immediately preceding the date
of the election at which the Owner is being considered for election to the Board.
(b) The director shall comply with the Governing Documents and
correct, within five (5) days after receipt of notice, any violation of the Governing Documents
for which that director has been determined to be responsible pursuant to applicable due process
requirements.
(c) Not act in a manner determined by a majority vote of the
directors to be grossly detrimental to the general safety, health or welfare of the Association and
its Members.
3.4 ELECTION, TERM OF OFFICE AND REMOVAL. Directors shall be
elected at the annual meeting of the Members, or by written ballot of the Members, to hold office
until the next annual meeting or election. Each director, including a director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected and until a successor
has been elected and qualified. Subject to the California Non-Profit Mutual Benefit Corporation
Law, any or all directors may be removed without cause by the majority vote of the Members.
3.5 VACANCIES ON BOARD.
3.5.1 Events Causing Vacancy. A vacancy or vacancies on the Board shall
exist on the occurrence of the following: (a) the death, resignation or removal of any director;
(b) the declaration by resolution of the Board of a vacancy in the office of a director who has
been declared of unsound mind by an order of court, or convicted of a felony; (c) an increase of
the authorized number of directors; (d) the failure of the Board, at any meeting of the Board at
which any director or directors are to be elected, to elect the number of directors required to be
elected at such meeting; or (e) the occurrence of any other events resulting in a vacancy as
provided under the California Non-Profit Mutual Benefit Corporation Law.
3.5.2 Resignations. Except as provided below, any director may resign by
giving written notice to the President, the Secretary or the Board. The resignation shall be
effective when the notice is given unless it specifies a later time for the resignation to become
effective. Unless otherwise specified in the notice, the resignation need not be accepted to be
effective. If a director's resignation is effective at a later time, the Board may elect a successor
to take office as of the date when the resignation becomes effective.
3.5.3 Filling Vacancies. Upon the death, resignation, or disability of any
member of the Board, the vacancy shall be filled by a majority vote from the remaining
members thereof, and the new director so chosen shall fill the unexpired term of the director he
or she replaces.
3.5.4 No Vacancy on Reduction of Number of Directors. No reduction of
the authorized number of directors shall have the effect of removing any director before that
director's term of office expires.
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3.6 DIRECTORS' MEETINGS.
3.6.1 Place of Meetings. Meetings of the Board shall be held at any place
within or outside California that has been designated by resolution of the Board or in the notice
of the meeting or, if not so designated, at the Principal Office.
3.6.2 Meetings by Telephone and Other Means. Directors of the
Association may participate in a Board meeting by any means or method permitted by law,
including the use of conference telephone, electronic video screen communication, or
Electronic Transmission by and to the Association. Participation in a meeting through use of a
conference telephone or electronic video screen communication pursuant to this Section 3.6.2
constitutes presence in person at that meeting as long as all directors participating in the
meeting are able to hear one another.
3.6.3 Annual Meeting of Board. The Board of Directors shall hold an
annual meeting for purposes of organization, election of officer(s) or director(s), and transaction
of other business within one hundred and twenty (120) days of the Association's fiscal year
end, or on such other date as the Board shall determine. Annual meetings may be held without
notice if the time and place is fixed by the Board.
3.6.4 Other Regular Meetings. Other regular meetings of the Board may be
held without notice if the time and place is fixed by the Board.
3.6.5 Special Meetings.
(a) Authority to Call. Special meetings of the Board for any
purpose may be called at any time by the Chair of the Board, or the President, any Vice President
or the Secretary, or any two (2) directors of the Association, or as permitted by law.
(b) Notice.
(i) Manner of Giving Notice to Directors. Notice of the
time and place of special meetings shall be given to each director by one of the following
methods: (a) by personal delivery of written notice; (b) by first-class mail, postage prepaid; (c)
by telephone, including a voice messaging system or other system or technology designed to
record and communicate messages; (d) facsimile; (e) electronic mail; (f) other electronic means
or any other means permitted by law. All such notices shall be given or sent to the director's
address or telephone number as shown on the records of the Association.
(ii) Time Requirements. Notices sent by first-class mail
shall be deposited in the United States mail at least four (4) days before the time set for the
meeting. Notices given by personal delivery, telephone, facsimile, electronic mail or electronic
devices shall be delivered, telephoned, or otherwise sent at least forty-eight (48) hours before the
time set for the meeting.
(iii) Notice Contents. The notice shall state the time of the
meeting and the place if the place is other than the Principal Office. It need not specify the
purpose of the meeting.
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3.6.6 Waiver of Notice. Notice of a meeting need not be given to any
director who, either before or after the meeting, signs a waiver of notice, a written consent to
the holding of the meeting, or an approval of the minutes of the meeting. The waiver of notice
of consent need not specify the purpose of the meeting. All such waivers, consents and
approvals shall be filed with the corporate records or made a part of the minutes of the
meetings. Notice of a meeting need not be given to any director who attends the meeting and
does not protest,before or at the commencement of the meeting, the lack of notice.
3.6.7 Quorum. A majority of the number of directors authorized by
Section 3.3.1 of these Bylaws shall constitute a quorum for the transaction of business, except
to adjourn. Every action taken or decision made by a majority of the directors present at a duly
held meeting at which a quorum is present shall be the act of the Board,unless a greater number
is required by law or these Bylaws. A meeting at which a quorum is initially present may
continue to transact business, despite the withdrawal of directors, if any action taken or decision
made is approved by at least a majority of the required quorum for that meeting.
3.6.8 Adjournment. A majority of the directors present, whether or not a
quorum is present, may adjourn any meeting to another time and place.
3.6.9 Notice of Adjourned Meeting. Notice of the time and place of the
holding of an adjourned meeting need not be given unless the original meeting is adjourned for
more than twenty-four (24) hours. If the original meeting is adjourned for more than twenty-
four (24) hours, notice of any adjournment to another time and place shall be given, before the
time of the adjourned meeting, to the directors who were not present at the time of the
adjournment.
3.7 ACTION WITHOUT A MEETING. Any action that the Board is required or
permitted to take may be taken without a meeting if all members of the Board consent in writing
to the action. Subject to Corporations Code Sections 20 and 7211(b) and all other relevant
provisions of the California Non-Profit Mutual Benefit Corporation Law, such consent may be
given via Electronic Transmission. Such action by written consent shall have the same force and
effect as any other validly approved action of the Board. All such consents shall be filed with
the minutes of the proceedings of the Board.
3.8 COMPENSATION AND REIMBURSEMENT. Directors may receive
reimbursement of expenses that the Board may determine by resolution to be just and reasonable
as to the Association at the time that the resolution is adopted. Directors shall not be
compensated for their service as directors, but nothing in these Bylaws precludes any director
from serving the Association in some other capacity for which he or she is compensated.
3.9 COMMITTEES.
3.9.1 Committees of the Board.
(a) Creation. The Board may create one or more committees, each
consisting of two (2) or more directors to serve at the pleasure of the Board. Appointments to
committees of the Board shall be by majority vote of the directors then in office.
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(b) Appointment. The Board may appoint one (1) or more
directors as alternate members of any such committee, who may replace any absent members at
any meeting. Any such committee, to the extent provided in the Board resolution, shall have all
the authority of the Board. However, no committee may take any of the following actions:
(i) Any action for which the California Non-Profit Mutual
Benefit Corporation Law also requires approval of the Members;
(ii) Fill vacancies on the Board or on any committee that has
the authority of the Board;
(iii) Amend, restate or repeal these Bylaws or adopt new
bylaws;
(iv) Amend or repeal any Board resolution that by its express
terms is not so amendable or repealable;
(v) Create any other committees of the Board; or
(vi) Any action specifically prohibited or not allowed by law
to be taken by a committee of the Board.
(c) Meetings and Actions of Committees of the Board. Meetings
and actions of committees comprised of directors of the Association shall be governed by, held
and taken in accordance with the provisions of these Bylaws concerning Board meetings and
other Board actions, except that the time for regular meetings of such committees and the calling
of special meetings of such committees may be determined either by Board resolution or, if there
is none, by resolution of the committee of the Board. Minutes of each committee meeting shall
be kept and filed with the corporate records. The Board may adopt rules governing any
committee that are consistent with these Bylaws or, in the absence of rules adopted by the Board,
the committee may adopt such rules.
ARTICLE IV
OFFICERS
4.1 OFFICERS. The officers of the Association shall be a President, a Secretary,
and a Treasurer with such duties and responsibilities as determined by the Board. The President
is the general manager and chief executive officer of the Association. Any number of offices
may be held by the same person.
4.2 SELECTION OF OFFICERS. The officers of the Association shall be chosen
by the Board, except those appointed under Section 4.3 of these Bylaws. The term of office for
each officer shall be selected by the Board, which term shall not be less than one (1) year nor
more than three (3) years. Each officer shall serve at the pleasure of the Board subject to the
rights, if any, of any officer under any contract of employment. Each officer shall hold office
until his or her resignation, removal or other disqualification from service, or until his or her
respective successor is elected or appointed.
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4.3 OTHER OFFICERS. The Association may also have, at the Board's discretion,
one or more Vice Presidents, one or more Assistant Secretaries, one or more assistant financial
officer and such other officers as may be appointed by the Board. The Board may elect or
appoint and may authorize the President or other officer, to appoint any other officers that the
Association may require. Each officer so elected or appointed shall have the title, the authority
and shall perform the duties as specified in these Bylaws or as determined by the Board.
4.4 RESPONSIBILITIES OF OFFICERS.
4.4.1 President. The President shall be the general manager and chief
executive officer of the Association and shall supervise, direct, and control the Association's
activities, affairs and officers, subject to such supervisory powers of the Board. The President
shall preside and serve as Chair at all Board meetings. The President shall have such other
powers and duties as the Board or laws may prescribe.
4.4.2 Vice Presidents. If the President is absent or disabled, the Vice
Presidents, if any, in order of their rank as fixed by the Board, or, if not ranked, a Vice
President designated by the Board, shall perform all duties of the President. When so acting, a
Vice President shall have all the powers of, and be subject to all the restrictions on, the
President. The Vice Presidents shall have such other powers and perform such other duties as
the Board or the Bylaws may prescribe.
4.4.3 Secretary. The Secretary shall keep or cause to be kept, at the
Association's Principal Office or such other place as the Board may direct, a book of minutes of
all meetings, proceedings and actions of the Board and of the committees of the Board. The
Secretary shall keep or cause to be kept, at the Principal Office, a copy of the Articles and
Bylaws, as amended or restated to date. The Secretary shall give, or cause to be given, notice
of all meetings of the Board and of the committees of the Board required by these Bylaws to be
given.
4.4.4 Treasurer.
(a) Books of Account. The Treasurer shall maintain adequate and
correct books and records of accounts of the Association's properties and transactions. The
Treasurer shall send or cause to be given to the directors such financial statements and reports as
are required to be given by law, these Bylaws, or the Board.
(b) Deposit and Disbursement of Money and Valuables. The
Treasurer shall deposit all money and other valuables in the name and to the credit of the
Association with such depositories as the Board may designate, shall disburse the Association's
funds as the Board may order, shall render to the President and the Board, when requested, an
account of all transactions and of the financial condition of the Association, and shall have such
other powers and perform such other duties as the Board or the Bylaws may prescribe.
(c) Bond. If required by the Board, the Treasurer shall give the
Association a bond in the amount and with the surety or sureties specified by the Board for
faithful performance of the duties of the office and for restoration to the Association of all of its
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books, papers, vouchers, money and other property of every kind in the possession or under the
control of the Treasurer on his termination of office.
4.5 REIMBURSEMENT. Any officer may be reimbursed for actual expenses
incurred in the performance of corporate duties if authorized by the Board. An officer shall not
be compensated for services rendered as an officer, but nothing in these Bylaws precludes any
officer from serving the Association in some other capacity for which he or she is compensated.
4.6 REMOVAL OF OFFICERS. Without prejudice to any'rights of an officer
under any contract of employment, any officer may be removed with or without cause by
majority vote of the Board. If the officer was not chosen by the Board, the officer may be
removed with or without cause by any officer on whom the Board may confer such power of
removal. Any removal of an officer shall be without prejudice to the rights, if any, of the
Association under any contract to which the officer is a party.
4.7 RESIGNATION OF OFFICERS. Any officer may resign at any time by giving
written notice to the Association. The resignation shall take effect as of the date the notice is
received or at any later time specified in the notice. Unless otherwise specified in the notice, the
resignation need not be accepted to be effective. Any resignation shall be without prejudice to
the rights, if any, of the Association under any contract to which the officer is a party.
4.8 VACANCIES IN OFFICE. A vacancy in any office shall exist on the
occurrence of the following: (a) the death or resignation of any officer; (b) the declaration by
resolution of the Board of a vacancy in an office of an officer who has been declared of unsound
mind by an order of court or convicted of a felony; (c) creation of a new officer position; (d) the
failure of the Board to appoint an officer; or (e) the occurrence of any other events resulting in a
vacancy as provided under the California Non-Profit Mutual Benefit Corporation Law. A
vacancy in any office shall be filled in the manner prescribed in these Bylaws for regular
appointments to that office, provided, however, that vacancies may be filled as they occur and
not necessarily on an annual or term basis.
ARTICLE V
INDEMNIFICATION
5.1 DEFINITIONS. For purposes of this Article V of these Bylaws, the following
definitions shall apply:
5.1.1 "Agent"means any person who is or was a director, officer, employee,
or other agent of the Association, or is or was serving at the request of the Association as a
director, officer, employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, or other enterprise, or was a director, officer, employee, or agent of a
foreign or domestic corporation that was a predecessor corporation of the Association or of
another enterprise at the request of the predecessor corporation;
5.1.2 "Proceeding" means any threatened, pending, or completed action or
proceeding, whether civil, criminal, administrative, or investigative; and
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5.1.3 "Expenses" includes, without limitation, all attorneys' fees, costs, and
any other expenses reasonably incurred in the defense of any claims or Proceedings against an
Agent by reason of his position or relationship as Agent and all attorneys' fees, costs, and other
expenses reasonably incurred in establishing a right to indemnification under this Article V.
5.2 SUBJECT TO CALIFORNIA NON-PROFIT MUTUAL BENEFIT
CORPORATION LAW. The Association may indemnify any Agent in any Proceeding to the
extent authorized under the California Non-Profit Mutual Benefit Corporation Law.
5.3 LIMITATIONS. No indemnification or advance shall be made under this
Article V in any circumstances when it appears:
5.3.1 That the indemnification or advance would be inconsistent with a
provision of the Articles, Bylaws, a resolution of the Members or an agreement in effect at the
time of the accrual of the alleged cause of action asserted in the Proceeding in which the
expenses were incurred or other amounts were paid, which prohibits or otherwise limits
indemnification; or
5.3.2 That the indemnification would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
5.4 ADVANCE OF EXPENSES. Expenses incurred in defending any Proceeding
may be advanced by the Association before the final disposition of the Proceeding on receipt of
an undertaking by or on behalf of the Agent to repay the amount of the advance unless it is
determined ultimately that the Agent is entitled to be indemnified as authorized in this Article V.
5.5 CONTRACTUAL RIGHTS OF NON-DIRECTORS AND NON-OFFICERS.
Nothing contained in this Article V shall affect any right to indemnification to which persons
other than directors and officers of the Association, or any subsidiary hereof, may be entitled by
contract or otherwise.
5.6 INSURANCE. The Board may adopt a resolution authorizing the purchase and
maintenance of insurance on behalf of any Agent of the Association against any liability asserted
against or incurred by any Agent in such capacity or arising out of the Agent's status as such,
whether or not the Association would have the power to indemnify the Agent against the liability
under the provisions of this Article V.
ARTICLE VI
RECORDS AND REPORTS
6.1 MAINTENANCE OF CORPORATE RECORDS. The Association shall keep:
6.1.1 adequate and correct books and records of account; and
6.1.2 written minutes of the proceedings of its Board and committees of the
Board.
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Minutes shall be kept in written form. Other books and records shall be kept
either in written form or in any other form capable of being converted into written form.
6.2 INSPECTION BY DIRECTORS. Every director shall have the absolute right at
any reasonable time to inspect the Association's books, records, documents of every kind,
physical properties, and the records of any of its subsidiaries. The inspection may be made in
person or by the director's agent or attorney. The right of inspection includes the right to copy
and make extracts of documents.
6.3 ANNUAL REPORT. An annual report shall be provided to the directors and
Members as required by Section 8321 of the California Non-Profit Mutual Benefit Corporation
Law, within one hundred and twenty (120) days after the end of the Association's fiscal year.
That report shall contain any information required by law, including Section 8322 of the
California Non-Profit Mutual Benefit Corporation Law as specified in Section 6.4,below.
The annual report shall be accompanied by any report on it of independent
accountants or, if there is no such report, by the certificate of an authorized officer of the
Association that such statements were prepared without audit from the Association's books and
records.
6.4 ANNUAL STATEMENT OF CERTAIN TRANSACTIONS AND
INDEMNIFICATIONS. As part of the annual report, the Association shall annually prepare
and mail or deliver to the Members and each director a statement of any transaction involving an
interested person or indemnification, if any such transaction or indemnification took place, as
required by Section 8322 of the California Non-Profit Mutual Benefit Corporation Law.
ARTICLE VII
NOTICE AND HEARING PROCEDURE
7.1 INITIAL COMPLAINT. Persons who believe a violation of the Governing
Documents has occurred may file a complaint with a Person designated by the Board on a form
approved by the Board. The Board will commence the enforcement process and determine
whether a violation has occurred. In its discretion, the Board may issue one or two violation
letters to the Person alleged to have committed the violation ("Respondent's or set a hearing
described in Section 7.2 below. The Board may direct the Manager to assist the Board in any of
the steps the Board chooses to take in enforcing the Governing Documents except that decisions
made at hearings must be made by the Board.
7.2 SCHEDULING HEARINGS. A hearing before the Board to determine whether
a sanction should be imposed may be initiated by the Board after receipt of at least one
complaint. To initiate a hearing, the Board must deliver to the Respondent a notice which
includes the following:
7.2.1 Complaint. A written statement setting forth in ordinary and concise
language the acts or omissions with which the Respondent is charged;
7.2.2 Basis for Violation. A reference to the specific provisions of the
Governing Documents which the Respondent is alleged to have violated;
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7.2.3 hearing Schedule. The date, time and place of the scheduled hearing;
and
7.2.4 Sanctions. A list of sanctions which may be imposed at the hearing.
The date for the hearing may be no less than fifteen (15) days after the date the notice of
hearing is mailed or delivered to the Respondent. The Respondent is entitled to attend the
hearing, submit a statement of defense to the Board in advance of the hearing, or present a
statement of defense and supporting witnesses at the hearing. If the Respondent does not attend
the hearing, the Respondent waives these rights.
7.3 CONDUCT OF HEARING. The Board shall conduct the hearing in executive
session (if so requested by the Respondent), and shall afford the Respondent a reasonable
opportunity to be heard. Before a sanction will be effective, proof of notice and the invitation to
be heard must be placed in the minutes of the meeting. Such proof is adequate if a copy of the
notice together with a statement of the date and manner of delivery is entered by the Association
officer or Board member who mailed or delivered such notice. The record of the meeting must
contain a written statement of the results of the hearing and the sanction imposed(if any).
7.4 IMPOSITION OF SANCTIONS. After affording the Respondent an
opportunity for a hearing before the Board, the Board may impose any one or more of the
following sanctions: (a) suspend the Respondent's voting privileges established under the
Declaration; (b) enter into a Lot to perform maintenance which, according to the Declaration, is
the responsibility of the Respondent; or(c) record a notice of noncompliance if allowed by law.
Any suspension of Membership privileges may not be for a period of more than thirty (30) days
for any non-continuing infraction, but in the case of a continuing infraction(including continuing
failure to pay any assessment after it becomes delinquent) may be imposed as long as the
violation continues. Written notice of any sanctions to be imposed must be delivered to the
Respondent personally, by any system or technology designed to record and communicate
messages, facsimile, electronic mail, or other electronic means, by first class mail or certified
mail return receipt requested, or any combination of the foregoing. No action against the
Respondent arising from the alleged violation may take effect before five (5) days after the
hearing. The Board shall not impose any sanction that will interfere with or prevent Declarant's
exercise of any rights reserved in Article VIII of the Declaration.
7.5 LIMITS ON REMEDIES. The Board's failure to enforce the Governing
Documents does not waive the right to enforce them. The remedies provided by the Governing
Documents are cumulative and not exclusive. However, any individual Owner must exhaust all
available internal Association remedies prescribed by the Governing Documents before that
Owner may resort to a court of law for relief concerning any alleged violation of the Governing
Documents by another Owner.
ARTICLE VIII
MISCELLANEOUS
8.1 CHECKS, DRAFTS AND DOCUMENTS. All checks, drafts, orders for
payment of money, notes and other evidence of indebtedness issued in the name of or payable to
the Association must be signed or endorsed in the manner and by the person or persons the
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Board designates by resolution, subject to the requirements of these Bylaws for the withdrawal
of money from the Association's accounts.
. 8.2 EXECUTION OF DOCUMENTS. The Board may authorize any officer or
other agent to enter into any contract or execute any instrument in the name of and on behalf of
the Association, and such authority may be general or confined to specific instances.
8.3 REFERENCE TO SPECIFIC STATUTE. Any reference to a specific statute
in these Bylaws shall include a reference to any amendment or subsequently enacted statute.
Such reference shall also include a reference to any corresponding provision of law regulating
the same subject matter.
8.4 CONSTRUCTION. Unless the context requires otherwise, the general
provisions, rules of construction, and definitions in the California Non-Profit Mutual Benefit
Corporation Law shall govern the construction of these Bylaws. Without limiting the generality
of the preceding sentence, the masculine gender includes the feminine and neuter, the singular
includes the plural, the plural includes the singular and the term "person" includes both a legal
entity and a natural person.
8.5 AMENDMENT OF BYLAWS. Except as otherwise provided in these Bylaws
and the California Non-Profit Mutual Benefit Corporation Law, the Board may,by majority vote,
adopt, amend, or repeal these Bylaws. If any provision of these Bylaws requires the vote of a
larger proportion of the Board than is otherwise required by law, that provision may not be
altered, amended or repealed except by that greater vote.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify that:
1. I am the duly elected and acting secretary of Moonstone Maintenance
Association, a California nonprofit mutual benefit corporation; and
2. The foregoing Bylaws, consisting of 19 pages, including this page, constitute the
Bylaws of Moonstone Maintenance Association duly adopted and effective as of
, 2015.
IN WITNESS THEREOF, I have subscribed my hand and affixed the seal of Moonstone
Maintenance Association effective , 2015.
Secretary
(SEAL)
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60 30 0 60
SCALE IN FEET
TV 1 inch =60 ft.
ASSOCIATION
MAINTENANCE
AREA
PARC 1
PA CEL 2
PA CEL 3
YORKTOWN AVENUE
2.V*LDEN &
SS®CIATES EXHIBIT "C"
ASSOCIATION MAINTENANCE AREA
CIVIL ENGINEERS-LAND SURVEYORS-PLANNERS PARCEL MAP NO.2008-118
2552 WHITE ROAD,SUITE B•IRVINE,CA 92614-6236
(949)660-0110 FAX:660-0418
60 30 0 60
SCALE IN FEET
1 inch =60 ft.
SHARED ACCESS AREA
PARCEL 1
PA CEL 2
PA CEL 3
YORKTOWN AVENUE
wSSOCIATES
EN & EXHIBIT "D"SHARED ACCESS
FOR RECIPROCAL INGRESS/EGRESS AND PARKING
CIVIL ENGINEERS-LAND SURVEYORS-PLANNERS PARCEL MAP NO.2008-118
2552 WHITE ROAD,SUITE B•IRVINE,CA 92614-6236 IN FAVOR OF PARCEL OWNERS
(949)660-0110 FAX:660-0418
60 30 0 60
SCALE IN FEET
TV 1 inch =60 ft.
PARCEL 1
PA CEL 2 APPROXIMATE
LOCATION OF
PA CEL 3 MAILBOXES
r
N14,
/
M
°
YORKTOWN AVENUE
ALDEN &
SSOCIATES EXHIBIT °'E"
MAILBOX CLUSTER LOCATION
CIVIL ENGINEERS-LAND SURVEYORS-PLANNERS PARCEL MAP NO. 2008-118
2552 WHITE ROAD,SUITE B-IRVINE,CA 92614-6236
(949)660-0110 FAX:660-0418
60 30 0 60
SCALE IN FEET
1 inch =60 ft.
APPROXIMATE
LOCATION OF
ABANDONED
OIL WELLS
—9
PARC 1
C-10
C-11
PA CEL 2
PA CEL 3
2 /
YORKTOWN AVENUE
*SSOCIATES
LIEN &
EXHIBIT "F"
ABANDONED OIL WELL LOCATIONS
CIVIL ENGINEERS-LAND SURVEYORS-PLANNERS PARCEL MAP NO.2008-118
2552 WHITE ROAD,SUITE B-IRVINE,CA 92614-6236
(949)660-0110 FAX:660-0418
i
EXHIBIT G
per t-1®n aft a-m' enance
i
Self a cat ion:. oran
City of Huntington BeachJti
Taus form must be completed by the properly owner or deslgnated-:
p>operty manager and submitted to tha City of ITuntlligtol B each ::
Due annuail ,nalater than September l5�
Property Owner or Designated Manager:
Phone number: ) Date Prepared:
i
Property Address: APN#:
Project Engineer: Phone Number: ( )
The purpose of this form is to verify that the site's low impact development design features and
treatment control best management practices (BMPs) to control pollutants in urban runoff and
storm water are being operated and maintained in conformance with the approved WQMP
documents.and the project's BMP operation and maintenance plan.
Annual completion and submittal of this form, no later than September Vt of each year, is
required in order to comply with the City's Storm Water ordinances and NPDES permit order no.
R8-2009-0030 (MS4 PERMTT).Failure to submit this form may result in inspection by the City,
fees,penalties, or fines, as applicable.
Attach copies of related inspection or maintenance service logs, orders, or receipts.
Certification:
I
As owner or property manager of the subject property, I certify that the approved Operation and
Maintenance(O&M) Plan for Low Impact Development(LID) site design and treatment control
BMPs are being implemented according to the approved schedule and all requirements described
in the approved WQMP.
I understand that failure to adequately operate and/or maintain the treatment control BMPs j
located on my property may result in fines or corrective action by the City for which I will bear
financial responsibility.
Signature:
Printed Name: Date Prepared:
Title: Phone Number: ( )
Submit to: Public Works Dept. (NPDES)
Director of Public Works
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
6393-116700T-NMI 183182.1
12/31/13