Name Last modified time How many licensed drivers live in your home? How many vehicles are registered to your address? 2 0
2 2
3 or more 3
3 or more 4 or more
1 1
3 or more 3
2 3
2 2
2 2
3 or more 3
2 2
2 2
2 4 or more
3 or more 3
2 2
2 2
2 2
3 or more 3
2 2
2 2
0 2
3 or more 3
2 2
1 1
2 2
2 1
2 2
2 2
3 or more 2
3 or more 3
1 1
1 1
2 2
3 or more 3
2 2
1 2
3 or more 3
2 2
1 2
2 2
2 2
3 or more 4 or more
2 2
2 3
3 or more 3
3 or more 4 or more
2 2
2 2
1 2
2 2
2 3
2 2
1 1
3 or more 3
2 2
2 0
2 2
1 1
2 2
2 2
2 2
2 2
2 2
2 1
2 2
2 1
3 or more 3
2 2
2 2
2 1
3 or more 3
3 or more 3
2 2
2 2
2 2
3 or more 4 or more
3 or more 3
3 or more 3
2 2
2 2
3 or more 3
2 2
3 or more 3
2 2
2 1
1 1
2 2
2 2
Where does each vehicle usually park? (check one per vehicle) How many garage bays do you have? Right now, how many care can actually fit inside? What keeps you from parking in the garage? (pick yo Inside my garage; 2 2 I already park inside
Inside my garage; 2 2 I already park inside
Inside my garage;HOA guest spots;City lot next door; 2 2 I already park inside Inside my garage;HOA guest spots;City lot next door;Public street father away; 1 2 Car is too large Inside my garage; 2 2 I already park inside
Inside my garage;HOA guest spots;City lot next door; 1 2 I already park inside Inside my garage;HOA guest spots; 2 2 Car is too large
Inside my garage; 2 2 I already park inside
Inside my garage; 2 2 I already park inside
Inside my garage;Public street father away;City lot next door;HOA guest spots; 2 2 I already park inside Inside my garage;City lot next door; 1 1 It’s a 1 car garage so my girlfriend parks inside & I have Inside my garage; 2 2 I already park inside
Inside my garage; 2 1 I already park inside
Inside my garage;HOA guest spots;City lot next door; 2 2 I already park inside Inside my garage; 2 2 When I have guests I will park outside to save them a s Inside my garage; 1 2 I already park inside
Inside my garage; 1 2 I already park inside
Inside my garage;City lot next door;Driveway;Public street father away;HOA guest spots; 1 2 Car is too large Inside my garage; 2 2 I already park inside
Inside my garage;City lot next door; 2 1 We have more than 1 car and only 1 fits Inside my garage;HOA guest spots; 1 1 I already park inside Inside my garage;HOA guest spots;City lot next door; 2 2 Shared with roommate/tenant Inside my garage;HOA guest spots;City lot next door; 2 2 Car is too large Inside my garage; 2 2 I already park inside
Inside my garage; 2 2 I already park inside
Inside my garage;HOA guest spots;Public street father away; 1 1 My garage only fits 1 car and I have 2 cars.
Inside my garage;HOA guest spots; 1 1 I already park inside Inside my garage; 2 2 I already park inside
Inside my garage;HOA guest spots;guest spot only when people are visiting; 1 1 I already park inside Inside my garage;Public street father away; 2 2 I already park inside Inside my garage; 2 1 I already park inside
Inside my garage; 1 1 None
Inside my garage; 2 2 I already park inside
Inside my garage;Public street father away; 2 2 I already park inside Inside my garage;HOA guest spots;City lot next door; 1 1 I already park inside Inside my garage;HOA guest spots; 1 1 I already park inside Inside my garage;HOA guest spots; 2 2 one extra car cant fit inside Inside my garage;HOA guest spots;City lot next door; 1 1 Shared with roommate/tenant HOA guest spots;Inside my garage; 1 2 I already park inside Inside my garage;HOA guest spots;City lot next door;Public street father away; 1 2 I already park inside Inside my garage; 2 2 I already park inside
Inside my garage;Public street father away; 2 3 or more I already park inside Inside my garage; 2 2 I already park inside
Inside my garage;City lot next door;HOA guest spots; 2 2 I already park inside Inside my garage;HOA guest spots; 2 2 I already park inside Inside my garage;City lot next door; 2 2 Car is too large Inside my garage; 1 2 I already park inside
Inside my garage;Public street father away; 2 1 Car is too large Inside my garage;Public street father away; 2 1 Car is too large
Inside my garage;HOA guest spots;Public street father away;City lot next door; 1 2 When guests come over Inside my garage;HOA guest spots; 2 2 I already park inside Inside my garage;City lot next door;Public street father away;HOA guest spots; 1 1 I already park inside Inside my garage; 2 2 I already park inside
Garage and street ; 2 2 Shared with roommate/tenant
Inside my garage; 2 2 I already park inside
Inside my garage;HOA guest spots; 1 1 Only one car garage Inside my garage; 2 2 I already park inside
Inside my garage; 2 2 I already park inside
Inside my garage;HOA guest spots; 1 1 1-car garage, we have 2 cars.
Inside my garage; 2 2 I already park inside
Inside my garage; 2 2 I already park inside
Inside my garage; 2 2 I already park inside
Inside my garage; 1 2 I already park inside
Inside my garage; 1 1 I already park inside
Inside my garage; 2 2 I already park inside
Inside my garage; 2 2 I already park inside
Inside my garage;City lot next door; 2 2 I already park inside Inside my garage;City lot next door;HOA guest spots; 1 1 I already park inside Inside my garage; 2 2 I already park inside
Inside my garage;HOA guest spots; 1 1 Car is too large
Inside my garage;City lot next door; 2 2 I already park inside Inside my garage;HOA guest spots;Public street father away; 2 2 I already park inside Inside my garage; 2 2 I already park inside
Inside my garage; 2 2 I already park inside
Inside my garage; 1 1 I already park inside
Inside my garage;City lot next door; 2 2 I already park inside Inside my garage;HOA guest spots; 2 2 I already park inside Inside my garage;Public street father away; 2 2 I already park inside Inside my garage;Kelby park next door; 1 1 Shared with roommate/tenant Inside my garage; 2 2 I already park inside
Inside my garage;HOA guest spots;City lot next door; 2 2 I already park inside Inside my garage;Kelby Park ; 1 1 Shared with roommate/tenant Inside my garage;Public street father away;HOA guest spots;Neighbor nearby Covina ;Driveway; 2 2 We parked 2 cars already inside the garage but we hav Inside my garage;Kelby Park ; 1 1 Shared with roommate/tenant Inside my garage; 2 2 I already park inside
Inside my garage; 2 1 I already park inside
Inside my garage;City lot next door; 1 1 Shared with roommate/tenant Inside my garage; 2 2 I already park inside
In the last 30 days, how often did you use the City lot at Kelby Park? When you park in the Kelby lot, you're there... If the HOA secured paid permits for the Kelbylot, would you apply? Monthly fee you'd be willing to pay per space:
Never Random mix No I wouldn't pay for a space
Never Random mix No I wouldn't pay for a space
Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)Yes, definitely $25 Regularly (4-6 days/week)Overnight (6 p.m - 6 a.m)Yes, definitely $25 Never Random mix No I wouldn't pay for a space
Regularly (4-6 days/week)Random mix Maybe, depends on cost $25 Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)Yes, definitely $25 Never Daytime only (6 a.m - 6 p.m) No I wouldn't pay for a space Never Random mix Yes, definitely I wouldn't pay for a space Every day/overnight Random mix Yes, definitely $25
Every day/overnight Random mix Yes, definitely $25
Never Random mix Yes, definitely $100 or more
Never Random mix Maybe, depends on cost I wouldn't pay for a space Regularly (4-6 days/week)Overnight (6 p.m - 6 a.m)Yes, definitely $25 Occasionally (1-3 days/week) Random mix Yes, definitely I wouldn't pay for a space Never Random mix Maybe, depends on cost $25
Occasionally (1-3 days/week) Daytime only (6 a.m - 6 p.m) No I wouldn't pay for a space Regularly (4-6 days/week)Random mix Yes, definitely $25 Never Random mix Maybe, depends on cost $25
Every day/overnight Overnight (6 p.m - 6 a.m)No I wouldn't pay for a space Never Daytime only (6 a.m - 6 p.m) Maybe, depends on cost $25 Regularly (4-6 days/week)Random mix No I wouldn't pay for a space Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)Maybe, depends on cost I wouldn't pay for a space Never Weekends only No I wouldn't pay for a space
Never Random mix No I wouldn't pay for a space
Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely $75 Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)Yes, definitely $50 Never Random mix No I wouldn't pay for a space
Never Random mix No I wouldn't pay for a space
Never Random mix Maybe, depends on cost $75
Never Random mix Maybe, depends on cost I wouldn't pay for a space Never Random mix No I wouldn't pay for a space
Occasionally (1-3 days/week) Random mix Yes, definitely $25 Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely $25 Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely I wouldn't pay for a space Regularly (4-6 days/week)Random mix Yes, definitely I wouldn't pay for a space Occasionally (1-3 days/week) Daytime only (6 a.m - 6 p.m) Maybe, depends on cost I wouldn't pay for a space Every day/overnight Overnight (6 p.m - 6 a.m)Maybe, depends on cost $25 Occasionally (1-3 days/week) Random mix No I wouldn't pay for a space Regularly (4-6 days/week)Random mix Yes, definitely $25 Never Weekends only Maybe, depends on cost I wouldn't pay for a space Every day/overnight Overnight (6 p.m - 6 a.m)Maybe, depends on cost $25 Never Daytime only (6 a.m - 6 p.m) Yes, definitely $25
Occasionally (1-3 days/week) Random mix Maybe, depends on cost $25 Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)Yes, definitely $75 Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely I wouldn't pay for a space Never Random mix No I wouldn't pay for a space
Regularly (4-6 days/week)Overnight (6 p.m - 6 a.m)Yes, definitely $25 Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)Yes, definitely I wouldn't pay for a space
Occasionally (1-3 days/week) Random mix Yes, definitely I wouldn't pay for a space Occasionally (1-3 days/week) Random mix Yes, definitely $50 Every day/overnight Random mix Maybe, depends on cost I wouldn't pay for a space Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)Maybe, depends on cost I wouldn't pay for a space Regularly (4-6 days/week)Overnight (6 p.m - 6 a.m)Maybe, depends on cost I wouldn't pay for a space Never Random mix Maybe, depends on cost $25
Regularly (4-6 days/week)Random mix Yes, definitely $25 Occasionally (1-3 days/week) Daytime only (6 a.m - 6 p.m) Maybe, depends on cost $25 Occasionally (1-3 days/week) Random mix No I wouldn't pay for a space Every day/overnight Random mix Maybe, depends on cost $25 Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)Yes, definitely $25 Never Random mix Yes, definitely $25
Never Daytime only (6 a.m - 6 p.m) No I wouldn't pay for a space Never Weekends only Maybe, depends on cost I wouldn't pay for a space Never Overnight (6 p.m - 6 a.m)Yes, definitely I wouldn't pay for a space Never Random mix No I wouldn't pay for a space
Occasionally (1-3 days/week) Random mix Maybe, depends on cost I wouldn't pay for a space Regularly (4-6 days/week)Overnight (6 p.m - 6 a.m)Yes, definitely $100 or more Every day/overnight Overnight (6 p.m - 6 a.m)Maybe, depends on cost I wouldn't pay for a space Never Random mix Maybe, depends on cost I wouldn't pay for a space Regularly (4-6 days/week)Overnight (6 p.m - 6 a.m)Maybe, depends on cost $25 Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)Maybe, depends on cost $25 Regularly (4-6 days/week)Random mix Yes, definitely $50 Occasionally (1-3 days/week) Overnight (6 p.m - 6 a.m)No I wouldn't pay for a space Never Daytime only (6 a.m - 6 p.m) Maybe, depends on cost $75 Never Random mix No I wouldn't pay for a space
Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely $25 Never Random mix Yes, definitely $25
Every day/overnight Overnight (6 p.m - 6 a.m)Maybe, depends on cost I wouldn't pay for a space Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely $25 Never Random mix No I wouldn't pay for a space
Every day/overnight Random mix Yes, definitely $25
Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely $25 Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely $25 Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely $25 Never Daytime only (6 a.m - 6 p.m) No $25
Never Random mix Maybe, depends on cost I wouldn't pay for a space Every day/overnight Overnight (6 p.m - 6 a.m)Yes, definitely $25 Occasionally (1-3 days/week) Random mix Maybe, depends on cost I wouldn't pay for a space
How many permits would your household likely buy? Which garage-compliance ideas would you support? (select all that apply) Is there anything else we should know about parking here? 0 Fine for not using garages for cars;Incentive for cleaning storage (e.g., free bulky-item pickup);Annual garNA 0 Annual garage inspection;N/A
1 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gN/a 1 Leave garages alone; Parking is horrible and unfair to everyone that lives here 0 Leave garages alone; Question 8 should have a not at all option. 1 Leave garages alone; Leave the garages alone. Do not implement any garage compliance. 1 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup); security camera would be great incase someone breaking in 0 Annual garage inspection;Fine for not using garages for cars; None 1 Incentive for cleaning storage (e.g., free bulky-item pickup);Annual garage inspection; People literally leave their cars for DAYS in spots without moving it. I don't think 1 Incentive for cleaning storage (e.g., free bulky-item pickup); Hope can get the over night parking permit near by our community 1 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gNot sure how a 1 car garage would suffice especially if I have a girlfriend & a frie 1 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gThere are many multi-generational families in this neighborhood, with multiple 1 Annual garage inspection;Fine for not using garages for cars;Incentive for cleaning storage (e.g., free bulkJust want to know if guests that are not staying overnight can park at Kelby Park 1 Annual garage inspection;Fine for not using garages for cars; a parking permit skills be assigned to the resident address and not to a particula 0 Fine for not using garages for cars; Not at this time 1 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gNo 0 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gThere is never any guest parking available, and I fear it will get worse when the 2 Incentive for cleaning storage (e.g., free bulky-item pickup); The parking set up at these homes are terrible 1 Incentive for cleaning storage (e.g., free bulky-item pickup);Leave garages alone; Sometimes cars are parked in community spaces (same space) for days… 1 Leave garages alone; We should be allowed 1 parking permit per household since my garage only allo 1 Annual garage inspection;No
2 Annual garage inspection;no
1 Leave garages alone; We were promised free parking. Any community would have enough parking fo 0 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gPlease enforce the parking rules! Most of the guest spots are being used by own 0 Fine for not using garages for cars; Can you issue every home one guest parking permit each so cars would actually 1 Annual garage inspection;Fine for not using garages for cars; Homeowners should be allowed to park on the premise. By parking outside of t 1 Annual garage inspection;Parking is as bad as I have seen any complex. I’m hoping this gets solved soon. 0 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gPeople are abusing the guest spots, and there are no spots left when people wa 0 Fine for not using garages for cars; Yes, it's not fair that other people have multiple cars that use up guest spaces a 1 Incentive for cleaning storage (e.g., free bulky-item pickup);Annual garage inspection; Garage inspection should be more frequently, but we can make it easier by taki 0 Leave garages alone; NA
0 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gControl the guest parking 3 or more Fine for not using garages for cars;Annual garage inspection; I would appreciate parking over night at the park for my guest since the park is 1 Incentive for cleaning storage (e.g., free bulky-item pickup); n/a 1 Fine for not using garages for cars; I’d be happy to pay for a yearly pass for Kelby park but not monthly. 0 Leave garages alone; Build more parking spaces instead of a playground area no one uses and there i 1 Fine for not using garages for cars; its really not enough place to park for family has more than 3 cars are using nor 2 Leave garages alone;Incentive for cleaning storage (e.g., free bulky-item pickup);Annual garage inspectioYearly permits would be preferred over monthly permits 0 Fine for not using garages for cars;Annual garage inspection; Some cars parked on the guess spots long time and their licenses expired 1 Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using garages for cars;Annual garNeed more guest parking for actual guests that will leave before midnight. 0 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gIts not fair that people who park their cars in their garage are not able to use gu 1 Fine for not using garages for cars;Leave garages alone;Annual garage inspection;Incentive for cleaning st0 0 Fine for not using garages for cars;Annual garage inspection; You should use a patrol agency to make sure residents are not leaving their cars 1 Annual garage inspection;Fine for not using garages for cars; A simple 72hr parkining duration limit in HOA guest parking would greatly help 1 Annual garage inspection;Fine for not using garages for cars;Incentive for cleaning storage (e.g., free bulkOther community uses parking permit inside. So no parking permit tow the car 2 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using ga yearly parking pass would beneficial. requesting a monthly permit would be a 0 Fine for not using garages for cars; Question 8 does not apply to my household but it required a response. 2 Leave garages alone; People are using guest parking as permanent parking so we can’t have people o 1 Leave garages alone; too small for our garage
1 Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using garages for cars;Annual gar Where can guests park temporarily overnight if they stay over once in a while? A 1 Fine for not using garages for cars; There are too many cars in the community and an overflow lot would be greatly 0 Incentive for cleaning storage (e.g., free bulky-item pickup);Annual garage inspection; There are multiple cars that are parked in the designated guest parking that wo 0 Fine for not using garages for cars;Incentive for cleaning storage (e.g., free bulky-item pickup);Annual gari have 1 car and 2 spaces but sometimes i have friends and family sleep over an 2 Fine for not using garages for cars; Some people don’t move there cars for days when parked in guest parking, pos 1 Fine for not using garages for cars;Annual garage inspection;Incentive for cleaning storage (e.g., free bulkI see many homeowners with multiple cars that take up all visitor spaces. It is ha 1 Fine for not using garages for cars; No reserved parking for residents as mentioned when time of purchasing home 0 Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using garages for cars; No 0 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gI only need extra parking at Kelby Park on occasion when I’m entertaining guest 1 Fine for not using garages for cars; Consider a daily type of permit for homeowner's overnight guests 1 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gMake sure people park in their garage 1 Fine for not using garages for cars;Incentive for cleaning storage (e.g., free bulky-item pickup); None 0 Annual garage inspection;Since guest parking is never available due to other residents having parking issu 1 Fine for not using garages for cars; Some people have more than 2 cars for a 2 car garage and take up too many sp 1 Leave garages alone; No
0 Fine for not using garages for cars; Some residents own/use up to four cars, even though they live in condos with 1 0 Incentive for cleaning storage (e.g., free bulky-item pickup); When family comes over and stays the day and overnight it is necessary to have 1 Annual garage inspection;Yes, zest should not allow any over night parking from 2-5am. I can never have g 2 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gI think parking permits would be beneficial to all residents 0 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup); Would you need a permit for guest parking overnight once in awhile? 1 Fine for not using garages for cars; For garage inspections people just get the garage ready for inspection then put 1 Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using garages for cars; ASAP resolve 1 Fine for not using garages for cars; Code violation for not having enough parking for number if bedroom 0 Fine for not using garages for cars;Annual garage inspection; The biggest concern when my friends and family visit my house is parking. We d 1 Fine for not using garages for cars; There’s one specific resident with single garage unit, utilities at least 4-5 guest p 0 Fine for not using garages for cars; Why didn’t you allow diagonal parking? That option, plus assigning one parking 2 Fine for not using garages for cars; 3 and 4 bedroom units must have more spaces available. 2 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gN/A 1 Fine for not using garages for cars; Na
2 Leave garages alone; Annual city parking permits should be available to Zest residents to be able to p 0 Fine for not using garages for cars; Please note that Question 8 is invalid because it does not include an option of n 2 Annual garage inspection;Some households have 5 cars but only use 2. The unused cars stay parked in de 2 Leave garages alone; Monitored parking should be done in Zest Community on vehicles that never m 2 Annual garage inspection;Incentive for cleaning storage (e.g., free bulky-item pickup);Fine for not using gSome have space in their garage but still park their car in visitors parking 2 Leave garages alone; Not enough parking at Zest. Some cars never move. Please allow residents to pu 0 Annual garage inspection;NO
1 Leave garages alone; Zest should consider making all HOA spots day time only parking and issue over 1 Fine for not using garages for cars;Annual garage inspection; I feel residences have way too many cars for the number of rooms in their cond 1 Fine for not using garages for cars;Leave garages alone; Why don't we just have a permit to park in the zest community, limit 1 per hous
Recording requested by and
when recorded return to:
Trumark Homes
Angela Schmidt
450 Newport Center Drive, Suite 300
Newport Beach, California 92660
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
ZEST
(Flats and Towns at Zest)
A Residential Condominium Project
NOTE: AS MORE FULLY DESCRIBED IN THE DECLARATION, OR
OTHERWISE PROVIDED BY DECLARANT, IN THE EVENT OF ANY
DISPUTES ARISING HEREUNDER, OR RELATING TO THE DESIGN
AND/OR CONSTRUCTION OF THE PROJECT, SUCH DISPUTE SHALL
BE SUBMITTED TO A NONADVERSARIAL PROCEDURE AND IF NOT
RESOLVED, SUBMITTED THEREAFTER TO AN ALTERNATIVE
DISPUTE RESOLUTION (E.G., MEDIATION, JUDICIAL
REFERENCE, BINDING ARBITRATION), AND AS A RESULT
THEREOF, SUCH DISPUTES WILL NOT BE LITIGATED IN A COURT BEFORE A JURY. ANY PERSON ACCEPTING PROPERTY IN THIS
DEVELOPMENT KNOWINGLY AND VOLUNTARILY AGREES TO BE
BOUND BY A PROCEDURE WHICH DOES NOT INCLUDE A RIGHT TO
A JURY AND KNOWINGLY AND VOLUNTARILY CONSENTS TO THE
PROJECT HOMEOWNERS ASSOCIATION’S AGREEMENT TO BE BOUND
BY SUCH PROCEDURE. IF THIS PROCEDURE IS UNACCEPTABLE,
AN INDIVIDUAL OR ENTITY SHOULD NOT ACQUIRE PROPERTY IN
THIS PROJECT.
.-29130.FCM 101521
ATTACHMENT E
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ..................... 2
1. Annexation Property ............... 2
2. Architectural Guidelines ............. 2
3. Architectural Review Committee .......... 2
4. Articles ..................... 2
5. Assessments ................... 3
6. Best Management Practices or BMPs ........ 4
7. Board ...................... 6
8. By-Laws ..................... 6
9. City ....................... 6
10. Common Area ................... 6
11. Common Expenses ................. 6
12. Condominium ................... 7
13. Condominium Building ............... 7
14. Condominium Plan ................. 7
15. Condominium Project ............... 7
16. Condominium Unit ................. 7
17. Corporation ................... 8
18. Corporation Property ............... 8
19. Cost Center . . . . . . . . . . . . . . . . . . . 10
20. Cost Center Budget . . . . . . . . . . . . . . . . 10
21. Cost Center Expenses . . . . . . . . . . . . . . . 10
22. County . . . . . . . . . . . . . . . . . . . . . . 10
23. Declarant . . . . . . . . . . . . . . . . . . . . 10
24. Declaration . . . . . . . . . . . . . . . . . . . 10
25. Dispute . . . . . . . . . . . . . . . . . . . . . 11
26. DRE . . . . . . . . . . . . . . . . . . . . . . . 11
27. Entitlements From City . . . . . . . . . . . . . . 11
28. Exclusive Use Corporation Property . . . . . . . . 11
29. FHLMC . . . . . . . . . . . . . . . . . . . . . . 11
30. FNMA . . . . . . . . . . . . . . . . . . . . . . . 11
31. GNMA . . . . . . . . . . . . . . . . . . . . . . . 11
32. Governing Documents . . . . . . . . . . . . . . . 12
33. Improvements . . . . . . . . . . . . . . . . . . . 12
34. Include, Including . . . . . . . . . . . . . . . . 12
35. Limited Warranty . . . . . . . . . . . . . . . . . 12
36. Local Government Agency . . . . . . . . . . . . . 12
37. Lot or Parcel . . . . . . . . . . . . . . . . . . 13
38. Maintain, Maintenance . . . . . . . . . . . . . . 13
39. Maintenance Guidelines; Maintenance Manual;
Maintenance Recommendations . . . . . . . . . . . 13
40. Member . . . . . . . . . . . . . . . . . . . . . . 13
41. Module . . . . . . . . . . . . . . . . . . . . . . 13
42. Mortgage . . . . . . . . . . . . . . . . . . . . . 14
43. Mortgagee . . . . . . . . . . . . . . . . . . . . 14
44. Mortgagor . . . . . . . . . . . . . . . . . . . . 14
45. Notice and Hearing . . . . . . . . . . . . . . . . 14
46. Notice of Annexation . . . . . . . . . . . . . . . 14
47. Owner . . . . . . . . . . . . . . . . . . . . . . 14
48. Phase . . . . . . . . . . . . . . . . . . . . . . 15
49. Project . . . . . . . . . . . . . . . . . . . . . 15
50. Property or Phase 1 . . . . . . . . . . . . . . . 15
51. Rules and Regulations . . . . . . . . . . . . . . 15
52. Solar System . . . . . . . . . . . . . . . . . . . 15
53. Tract No. 83178 . . . . . . . . . . . . . . . . . 15
54. Utilities . . . . . . . . . . . . . . . . . . . . 15 .-29130.FCM 101521 (i) Page 398 of 659
55. VA/FHA . . . . . . . . . . . . . . . . . . . . . . 16
56. Variable Element . . . . . . . . . . . . . . . . . 16
57. Variable Expenses . . . . . . . . . . . . . . . . 16
58. Water Quality Management Plans . . . . . . . . . . 16
59. Interpretation . . . . . . . . . . . . . . . . . . 17
60. Application of Definitions . . . . . . . . . . . . 17 ARTICLE II GENERAL PLAN OF DEVELOPMENT . . . . . . . . . . . . . 18
1. Introduction . . . . . . . . . . . . . . . . . . . 18
2. Membership in the Corporation . . . . . . . . . . 18
3. Annexation of Subsequent Phases . . . . . . . . . 19
4. Declarant’s Use of Private Vehicular Drives,
Aisles, Guest Parking Spaces, and Utilities . . . 19
5. Post Tension Slabs . . . . . . . . . . . . . . . . 19
6. Development Control . . . . . . . . . . . . . . . 20
7. Non-Liability of Declarant . . . . . . . . . . . . 21 ARTICLE III DESCRIPTION OF THE CONDOMINIUMS . . . . . . . . . . . 21
1. Condominium Unit . . . . . . . . . . . . . . . . . 21
2. Presumption of Boundaries of Condominium Units . . 22
3. Common Area . . . . . . . . . . . . . . . . . . . 23
4. Exclusive Use Corporation Property . . . . . . . . 23
5. Undivided Fractional Fee Interest in Common
Area . . . . . . . . . . . . . . . . . . . . . . . 26
6. Easements Over Corportation Property . . . . . . . 26
7. Components of Condominium Ownership . . . . . . . 27
8. Condominium Numbering . . . . . . . . . . . . . . 27
9. Power of Attorney to Correct Errors . . . . . . . 27
10. Mortgage Interest and Other Encumbrances to Take
Subject to Power of Attorney . . . . . . . . . . 27
11. Guest Parking Spaces . . . . . . . . . . . . . . . 28
12. Reservation of Easements Over Corporation
Property For Subsequent Phases . . . . . . . . . . 28
ARTICLE IV RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE CORPORATION PROPERTY . . . 28
1. Owners’ Rights of Access and Use of the
Corporation Property . . . . . . . . . . . . . . . 28
2. Limitations on Owners’ Rights . . . . . . . . . . 28
3. Delegation of Corporation Property Use Rights . . 31
4. Easements for Vehicular Traffic . . . . . . . . . 32
5. Easements for Air Conditioners/Solar Systems . . . 32
6. Easements for Utilities . . . . . . . . . . . . . 33
7. Easements for Corporation’s Exercise of Rights
and Obligations . . . . . . . . . . . . . . . . . 35
8. Easements for Clustered Mailboxes/Light
Standards . . . . . . . . . . . . . . . . . . . . 36
9. Easements Over Sidewalks and Walkways . . . . . . 36
10. Easements for Drainage . . . . . . . . . . . . . . 36
11. Easement for Area Drains . . . . . . . . . . . . . 37
12. Easements for Construction and Sales . . . . . . . 38
13. Easements for Community Cable Television,
Telecommunication Systems and Alarm System
Cabling . . . . . . . . . . . . . . . . . . . . . 38
14. Reservation of Construction Rights by Declarant . 39
15. Easements for Public Services . . . . . . . . . . 39 .-29130.FCM 101521 (ii) Page 399 of 659
16. Control of Corporation Property . . . . . . . . . 39
17. Easements for Encroachments . . . . . . . . . . . 40
18. Reservation of Easements for Inspection,
Maintenance, and Repair . . . . . . . . . . . . . 41
19. Other Easements and Rights . . . . . . . . . . . . 41 ARTICLE V THE CORPORATION . . . . . . . . . . . . . . . . . . . 41
1. Membership . . . . . . . . . . . . . . . . . . . . 41
2. Voting Rights . . . . . . . . . . . . . . . . . . 42
3. Special Procedures . . . . . . . . . . . . . . . . 43
4. Vesting of Voting Rights . . . . . . . . . . . . . 43
5. Adjustment of Voting Rights . . . . . . . . . . . 43
6. Transfer . . . . . . . . . . . . . . . . . . . . . 44
7. Record Dates . . . . . . . . . . . . . . . . . . . 44
8. Notices . . . . . . . . . . . . . . . . . . . . . . 44 ARTICLE VI POWERS AND DUTIES OF THE CORPORATION . . . . . . . . . 44
1. Management Body . . . . . . . . . . . . . . . . . 44
2. Powers . . . . . . . . . . . . . . . . . . . . . . 44
3. Duties . . . . . . . . . . . . . . . . . . . . . . 48
4. Discretionary Powers . . . . . . . . . . . . . . . 59
5. Delegation of Duties . . . . . . . . . . . . . . . 60
6. Right of Entry for Emergency . . . . . . . . . . . 60
7. Right of Entry for Repairs . . . . . . . . . . . . 61
8. Limitations on Board Action . . . . . . . . . . . 61
9. Licenses, Easements and Rights-of-Way . . . . . . 62
10. New Improvements . . . . . . . . . . . . . . . . . 63
11. Corporation Rules and Regulations . . . . . . . . 63
12. Nonliability and Indemnification . . . . . . . . . 64 ARTICLE VII ASSESSMENTS . . . . . . . . . . . . . . . . . . . . . 66
1. Creation of the Lien and Personal Obligation of
Assessments . . . . . . . . . . . . . . . . . . . 66
2. Purpose of Regular Assessments: Levy
and Collection . . . . . . . . . . . . . . . . . . 66
3. Regular Assessments - Basis . . . . . . . . . . . 66
4. Special Assessments . . . . . . . . . . . . . . . 69
5. Compliance Assessments . . . . . . . . . . . . . . 70
6. Variable Assessment . . . . . . . . . . . . . . . 70
7. Special Benefit Assessments . . . . . . . . . . . 70
8. Date of Commencement of Regular Assessments:
Due Dates . . . . . . . . . . . . . . . . . . . . 71
9. Collection of Assessments . . . . . . . . . . . . 72
10. Notice of Increase in Assessments . . . . . . . . 72
11. Cost Center Assessment Component . . . . . . . . . 72
12. Certification of Payment . . . . . . . . . . . . . 73
13. Delivery by Owner . . . . . . . . . . . . . . . . 73
14. Delivery by Declarant . . . . . . . . . . . . . . 73
15. Reserves . . . . . . . . . . . . . . . . . . . . . 74
16. Offsets and Waiver Prohibited . . . . . . . . . . 74
17. Exempt Property . . . . . . . . . . . . . . . . . 74
18. Sub-metering of Water for Condominiums . . . . . . 74 .-29130.FCM 101521 (iii) Page 400 of 659
ARTICLE VIII EFFECT OF NONPAYMENT OF ASSESSMENTS:
REMEDIES OF THE CORPORATION . . . . . . . . . . . . . 75
1. Effect of Nonpayment of Assessments: Remedies
of the Corporation . . . . . . . . . . . . . . . . 75
2. Notice of Delinquent Assessments . . . . . . . . . 76
3. Foreclosure Sale . . . . . . . . . . . . . . . . . 76
4. Curing of Default . . . . . . . . . . . . . . . . 77
5. Appointment of Receiver . . . . . . . . . . . . . 77
6. Cumulative Remedies . . . . . . . . . . . . . . . 77
7. Mortgagee Protection . . . . . . . . . . . . . . . 77 ARTICLE IX USE RESTRICTIONS . . . . . . . . . . . . . . . . . . . 78
1. Private Residential Dwelling . . . . . . . . . . . 78
2. Corporation Property Use . . . . . . . . . . . . . 78
3. Conduct Affecting Insurance . . . . . . . . . . . 78
4. Liability for Damage . . . . . . . . . . . . . . . 79
5. Signs . . . . . . . . . . . . . . . . . . . . . . 79
6. Maintenance of Animals . . . . . . . . . . . . . . 80
7. Quiet Enjoyment . . . . . . . . . . . . . . . . . 80
8. Structural Changes . . . . . . . . . . . . . . . . 81
9. Improvements . . . . . . . . . . . . . . . . . . . 81
10. Windows . . . . . . . . . . . . . . . . . . . . . 81
11. Commercial Activity . . . . . . . . . . . . . . . 82
12. Parking and Vehicular Restrictions . . . . . . . . 82
13. Regulation of Parking . . . . . . . . . . . . . . 85
14. Compliance With Governing Documents . . . . . . . 85
15. Declarant’s Improvements . . . . . . . . . . . . . 85
16. Solar . . . . . . . . . . . . . . . . . . . . . . 86
17. Antenna Restriction . . . . . . . . . . . . . . . 88
18. Leasing . . . . . . . . . . . . . . . . . . . . . 89
19. Drilling . . . . . . . . . . . . . . . . . . . . . 89
20. Trash and Recycling . . . . . . . . . . . . . . . 89
21. Drainage . . . . . . . . . . . . . . . . . . . . . 90
22. Prohibition Against Further Subdivision . . . . . 91
23. Patios, Porches, Entry Areas, Decks, and Patios . 91
24. Exemption of Declarant . . . . . . . . . . . . . . 91
25. No Easements for View Purposes; Disclaimer . . . . 92
26. Public Right-of-Way . . . . . . . . . . . . . . . 93
27. Screen Doors . . . . . . . . . . . . . . . . . . . 93
28. Best Management Practices . . . . . . . . . . . . 93
29. Rights of Disabled . . . . . . . . . . . . . . . . 93
30. Water Beds . . . . . . . . . . . . . . . . . . . . 93
31. No Use of Hazardous Materials . . . . . . . . . . 93
32. Noise, Odors, and Other Adverse Impacts . . . . . 94
33. Sound Control Engineering in Condominium
Buildings . . . . . . . . . . . . . . . . . . . . 95
34. No Modification Of Improvements Required To Be
Maintained By Corporation Or Interference With
Corporation’s Maintenance Obligations . . . . . . 96
35. Owner Annual Notice Requirement . . . . . . . . . 96
36. No Warranty of Enforceability . . . . . . . . . . 97 ARTICLE X REPAIR AND MAINTENANCE . . . . . . . . . . . . . . . . 97
1. Repair and Maintenance by Corporation . . . . . . 97
2. Maintenance Manual . . . . . . . . . . . . . . . . 103
3. Project Inspections . . . . . . . . . . . . . . . 104 .-29130.FCM 101521 (iv) Page 401 of 659
4. Maintenance of Phases Subject to Construction
Easement . . . . . . . . . . . . . . . . . . . . . 105
5. Repair and Maintenance by Owner . . . . . . . . . 105
6. Maintenance of Public Utilities . . . . . . . . . 109
7. Damage and Destruction Affecting a Condominium
Unit - Duty to Rebuild . . . . . . . . . . . . . . 109
8. Owners’ Cooperation for Maintenance . . . . . . . 110
ARTICLE XI ENVIRONMENTAL AND OTHER DISCLOSURES
AND REQUIREMENTS . . . . . . . . . . . . . . . . . . . 110
1. Environmental Requirements . . . . . . . . . . . . 110 ARTICLE XII ARCHITECTURAL REVIEW - APPROVAL . . . . . . . . . . . 112
1. Exemptions From Architectural Review . . . . . . . 112
2. Architectural Review . . . . . . . . . . . . . . . 113
3. Architectural Review Committee . . . . . . . . . . 113
4. Meetings of the Architectural Review Committee . . 114
5. Architectural Approval - Review of Plans and
Specifications . . . . . . . . . . . . . . . . . . 114
6. Decisions of the Architectural Review Committee . 115
7. Submittal to Public Agencies - Right of
Architectural Review Committee to Review . . . . . 116
8. Conflicts Between Governmental Agencies and
Architectural Review Committee . . . . . . . . . . 116
9. No Waiver of Future Approvals . . . . . . . . . . 116
10. Compensation of Members . . . . . . . . . . . . . 117
11. Variancess . . . . . . . . . . . . . . . . . . . . 117
12. Inspection of Work . . . . . . . . . . . . . . . . 117
13. Non-Liability of Architectural Review Committee
Members . . . . . . . . . . . . . . . . . . . . . 118
14. Appeal . . . . . . . . . . . . . . . . . . . . . . 118
15. Approval of City . . . . . . . . . . . . . . . . . 118
ARTICLE XIII DAMAGE OR DESTRUCTION TO
THE CORPORATION PROPERTY . . . . . . . . . . . . . . . 119
1. Restoration of Damaged Corporation Property . . . 119
2. Election by Owners Not to Restore Damaged
Corporation Property . . . . . . . . . . . . . . . 120
3. Retention of Excess Insurance Proceeds in
General Fund . . . . . . . . . . . . . . . . . . . 120
ARTICLE XIV CONDEMNATION . . . . . . . . . . . . . . . . . . . . . 120
1. Distribution of Awards - Corporation Property . . 120
2. Board of Directors as Attorney-in-Fact . . . . . . 120 ARTICLE XV COVENANT AGAINST PARTITION . . . . . . . . . . . . . . 121
1. Covenant Against Partition . . . . . . . . . . . . 121
2. Judicial Partition of the Project . . . . . . . . 121
3. Board of Directors’ Power of Sale in Event of
Judicial Partition . . . . . . . . . . . . . . . . 121
.-29130.FCM 101521 (v) Page 402 of 659
ARTICLE XVI INSURANCE . . . . . . . . . . . . . . . . . . . . . . 122
1. Insurance Coverage Required To Be Maintained
By The Corporation . . . . . . . . . . . . . . . . 122
2. Optional Insurance Coverage That May Be
Obtained By The Corporation . . . . . . . . . . . 124
3. Notice of Cancellation of Insurance Maintained
By The Corporation . . . . . . . . . . . . . . . . 125
4. Board’s Review of Insurance Coverage Maintained by
Corporation . . . . . . . . . . . . . . . . . . . 125
5. Owner’s Waivers and Release of Claims . . . . . . 125
6. Corporation’s Rights And Obligations With
Respect To Premiums, Proceeds and Settlement . . . 125
7. Rights and Duties of Owners to Insure . . . . . . 126
8. Trustee for Policies Maintained By The
Corporation . . . . . . . . . . . . . . . . . . . 126
9. Mortgage Clause . . . . . . . . . . . . . . . . . 127
10. Compliance With Requirements of FHLMC, FNMA
and VA/FHA . . . . . . . . . . . . . . . . . . . . 127
11. Required Waiver . . . . . . . . . . . . . . . . . 129
12. Annual Notification of Insurance . . . . . . . . . 130 ARTICLE XVII MORTGAGEE PROTECTION . . . . . . . . . . . . . . . . . 130
1. Mortgagee Protection Provisions . . . . . . . . . 130
2. Violation of Mortgagee Protection Provisions . . . 134
3. Amendments to Conform With Mortgagee Requirements 134 ARTICLE XVIII ENFORCEMENT OF BONDED OBLIGATIONS . . . . . . . . . . 135
1. Enforcement of Bonded Obligations . . . . . . . . 135 ARTICLE XIX ANNEXATION OF ADDITIONAL PROPERTY . . . . . . . . . . 136
1. Development of the Project . . . . . . . . . . . . 136
2. Annexation Pursuant to Approval . . . . . . . . . 136
3. Annexation Pursuant to General Plan of
Development . . . . . . . . . . . . . . . . . . . 136
4. Notice of Annexation . . . . . . . . . . . . . . . 137
5. Effective Date of Annexation . . . . . . . . . . . 137
6. Amendments to Notice of Annexation . . . . . . . . 137
7. Right of De-Annexation . . . . . . . . . . . . . . 137
8. Parties to Notice of Annexation . . . . . . . . . 138 ARTICLE XX DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . 138
1. Resolution of Disputes Between Corporation/Owners
and Declarant . . . . . . . . . . . . . . . . . . 138
2. Inspection Easements . . . . . . . . . . . . . . . 138
3. No Enhanced Protection Agreement . . . . . . . . . 139
4. Corporation Property Claims . . . . . . . . . . . 139
5. Notification by Corporation of Defects . . . . . . 139
6. Awards Rendered in Construction Defects Disputes . 139
7. Special Meeting of the Corporation for
Construction Defect Disputes . . . . . . . . . . . 139
8. AMENDMENTS . . . . . . . . . . . . . . . . . . . . 140 .-29130.FCM 101521 (vi) Page 403 of 659
ARTICLE XXI VETERANS AFFAIRS PROVISIONS FOR CONDOMINIUM PROJECTS . 140
1. Condominium Ownership . . . . . . . . . . . . . . 140
2. Condominium Documentation . . . . . . . . . . . . 140
3. Amendments . . . . . . . . . . . . . . . . . . . . 140
4. Description of the Condominium Units,
Common Area, and Corporation Property . . . . . . 141
5. Corporation’s Right of Termination of
Certain Contracts . . . . . . . . . . . . . . . . 141
6. Corporation’s Right of Entry and Other Rights . . 141
7. Assessments . . . . . . . . . . . . . . . . . . . 142
8. Reserves and Working Capital . . . . . . . . . . . 142
9. Voting Rights . . . . . . . . . . . . . . . . . . 142
10. Easements . . . . . . . . . . . . . . . . . . . . 142
11. Restrictions on Alienation . . . . . . . . . . . . 142
12. Rights of Action . . . . . . . . . . . . . . . . . 143
13. Miscellaneous Requirements . . . . . . . . . . . . 143 ARTICLE XXII GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . 146
1. Enforcement . . . . . . . . . . . . . . . . . . . 146
2. Severability . . . . . . . . . . . . . . . . . . . 148
3. Term . . . . . . . . . . . . . . . . . . . . . . . 148
4. Covenants Running With The Land . . . . . . . . . 149
5. Construction . . . . . . . . . . . . . . . . . . . 149
6. Singular Includes Plural . . . . . . . . . . . . . 149
7. Amendments . . . . . . . . . . . . . . . . . . . . 149
8. Encroachments . . . . . . . . . . . . . . . . . . 152
9. Notices . . . . . . . . . . . . . . . . . . . . . 153
10. Attorneys’ Fees . . . . . . . . . . . . . . . . . 153
11. Mergers or Consolidations . . . . . . . . . . . . 153
12. Declarant’s Notices and Elections Pursuant
to Right to Repair Law . . . . . . . . . . . . . . 153
13. Non-Adversarial Prelitigation Procedures,
Mediation, and Binding Dispute Resolution
of Disputes . . . . . . . . . . . . . . . . . . . 154
14. No Representations or Warranties . . . . . . . . . 154
15. Project Disclosures . . . . . . . . . . . . . . . 154
16. Conflicts in Governing Documents For the Project . 158
17. Davis-Stirling Common Interest Development Act . . 158
18. Exhibits . . . . . . . . . . . . . . . . . . . . . 159
19. Maintenance Standards . . . . . . . . . . . . . . 159
20. Declarant’s Representative . . . . . . . . . . . . 159 .-29130.FCM 101521 (vii) Page 404 of 659
EXHIBITS:
Exhibit A - Legal Description
Exhibit B - Annexation Property
Exhibit C - Fire Lanes and Other No Parking Areas
Exhibit D - Corporation Maintained Storm Drainage Facilities Exhibit E - Sample Form of Limited Warranty
Exhibit F - Declarant’s Notices and Elections
Pursuant to Right to Repair Law
Exhibit G - Prelitigation Procedures, Mediation, and
Binding Dispute Resolution Procedures
Exhibit H - Corporation Maintained Walls and Fences
Exhibit I - Corporation Maintained Sewer Facilities
Exhibit J - Corporation Maintained Water Facilities
Exhibit K - Corporation Maintained On-Site Landscape Areas Exhibit L - Intentionally Omitted
Exhibit M - Maintenance Matrix
Exhibit N - Landscape District Maintained Off-Site Landscape Areas .-29130.FCM 101521 (viii) Page 405 of 659
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
ZEST
____________________________________
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, AND RESERVATION OF EASEMENTS FOR ZEST is executed on __________________, 202_, by TH BARRANCA LLC, a California limited liability company ("Declarant").
RECITALS:
A. Declarant owns that certain real property located in the City of Covina, County of Los Angeles, State of California, more particularly described on Exhibit "A" attached hereto (hereinafter referred to as the "Property" or "Phase 1").
B. Declarant desires to subdivide Lot 1 of Tract No.
83178, as authorized by Section 66427 of the California Government Code, into "condominiums," as defined in Section 783 of the California Civil Code, and to develop Phase 1 and any of the "Annexation Property," as hereinafter defined, which is subsequently annexed to Phase 1 pursuant to the Article herein entitled "Annexation of Additional Property" as a common interest development, more particularly described in Section 4125(a) of the California Civil Code as a "condominium project" (hereinafter referred to as the "Project"), as more particularly described below.
C. Declarant deems it desirable to impose a general
plan for the development, maintenance, improvement, protection, use, occupancy and enjoyment of the Project, and to establish, adopt and impose covenants, conditions, restrictions, easements, equitable servitudes, liens and charges upon the Project for the purpose of enforcing, protecting and preserving the value, desirability and attractiveness of the Project.
D. Declarant deems it desirable for the efficient enforcement, protection and preservation of the value, desirability and attractiveness of the Project to create a corporation which shall be delegated and assigned the powers of administering and enforcing said covenants, conditions and restrictions.
E. ZEST OWNERS ASSOCIATION, a California nonprofit
mutual benefit corporation, has been or will be incorporated under the laws of the State of California for the purpose of exercising the aforesaid powers.
.-29130.FCM 101521
F. Declarant intends to convey the Property, and any
and all real property annexed thereto, subject to the Protective Covenants set forth hereinbelow.
NOW, THEREFORE, Declarant agrees and declares that it has established, and does hereby establish, a plan for the development, maintenance, protection, improvement, use, occupancy, and enjoyment of the Project, and has fixed, and does hereby fix, the covenants, conditions, restrictions, easements, reservations, equitable servitudes, liens, and charges (hereinafter collectively referred to as the "Protective Covenants") upon the Project. Each and all of the Protective Covenants shall run with the land, shall be enforceable, and shall inure to the benefit of and be binding upon Declarant, its successors and assigns, all subsequent owners of all or any portion of the Project, together with their grantees, successors, heirs, executors, administrators, devisees, and assigns, and may be enforced by any Owner or the Corporation.
ARTICLE I
DEFINITIONS
Section 1. "Annexation Property" shall mean and refer
to that certain real property described in Exhibit "B" attached hereto (hereinafter referred to as "Annexation Property"), including all Improvements (as defined below) constructed thereon, all or any portion of which may be annexed into the Project by Declarant, as set forth in the Article herein entitled "Annexation of Additional Property." Section 2. "Architectural Guidelines" shall mean and
refer to those certain architectural standards, landscape standards and other general policies, procedures and criteria which may be adopted by the Board pursuant to this Declaration for use by the Architectural Review Committee in reviewing plans and specifications for proposed Improvements to an Owner’s Condominium (e.g., Exclusive Use Corporation Property). The Architectural Guidelines are general guidelines and may be amended from time to time by a majority of the Board. A copy of the Architectural Guidelines may be obtained from the Architectural Review Committee.
Section 3. "Architectural Review Committee" shall
mean and refer to the committee created pursuant to the Article herein entitled "Architectural Review - Approval."
Section 4. "Articles" shall mean and refer to the Articles of Incorporation of ZEST OWNERS ASSOCIATION, as filed in the Office of the Secretary of State of the State of California, as such Articles may be amended, from time to time.
.-29130.FCM 101521 -2-
Section 5. "Assessments" shall be used as a generic
term which shall mean and refer to the following:
(a) "Regular Assessment" shall mean and refer to
the annual charge against each Owner and his or her respective Condominium representing a portion of the Common Expenses of the Corporation.
(1) "General Assessment Component." The
General Assessment Component (or base assessment component as may be referred to in the DRE reviewed Budget) consists of the Common Expenses of the Corporation,
exclusive of all Variable Expenses (generally defined
below) and Cost Center Expenses budgeted to the
Condominiums, if applicable. The General Assessment
Component shall be allocated equally among the Owners and their respective Condominium based upon the number of
Condominiums owned, except that the General Assessment
Component for each Condominium may vary from month to
month for domestic water based upon the usage of domestic water by the Condominium (e.g., for drinking, bathing,
washing, sewer, and other purposes) as measured by the
submeter exclusively serving the Condominium; and
(2) "Variable Assessment Component." The
Variable Expenses budgeted exclusively to a Variable
Element ("Variable Assessment Component"), as applicable, shall be assessed to the Owners of Condominiums to which the exclusive or disproportionate maintenance of such
Variable Element has been allocated. It is anticipated
that the Variable Assessment Component (e.g., the cost of insurance, paint, and roof), will be allocated on a prorata basis among the Condominiums which are subject thereto as set forth in the Corporation Budget.
(3) "Cost Center Assessment Component." The
Cost Center Assessment Component consists of the Cost
Center Expenses of the Corporation (e.g., fire alarm
monitoring, common sewer main, ..?.) which are allocable and budgeted exclusively to a Cost Center. The Cost
Center Assessment Component shall be assessed solely to the Owners of Condominiums in the Cost Center on the
basis specified in this Declaration and/or a recorded
Notice of Annexation and the Cost Center Budget submitted to the DRE.
(b) "Compliance Assessment" shall mean and refer to
a type of Special Assessment levied by the Corporation against an Owner representing the costs incurred by the Corporation in the repair of any damage to the Corporation Property or any Improvements which are maintained by the Corporation as part of a Special Benefit Area for which such Owner (or any member .-29130.FCM 101521 -3-
of the Owner’s family, or the Owner’s guests, invitees, tenants or lessees) was responsible, the costs incurred by the Corporation in bringing such Owner and the Owner’s Condominium into compliance with this Declaration, or any amount due the Corporation based upon disciplinary proceedings against an Owner in accordance with this Declaration, and/or any amount due the Corporation to reimburse the Corporation for
administrative costs attributable to an Owner as provided herein;
(c) "Special Assessment" shall mean and refer to
the charge against an Owner and the Owner’s respective
Condominium representing a portion of the cost of reconstructing any damaged or destroyed portion or portions of the Corporation Property, of constructing or installing any capital Improvements to the Corporation Property, or of taking any extraordinary action for the benefit of the Corporation Property (e.g., including but not limited to funding the reserve accounts) or the membership of the Corporation pursuant to the provisions of this Declaration; and (d) "Special Benefit Assessment" shall mean and
refer to a component of the Regular Assessment levied by the Corporation against an Owner and the Owner’s respective Condominium to cover the expenses incurred by the Corporation in the operation, maintenance, repair and/or funding of reserves for a portion of the Project designated by Declarant or the Board as a "Special Benefit Area," which expenses are allocable only to the Owners and their Condominiums within such an Area and constitute "Special Benefit Area Expenses".
The Improvements within a Special Benefit Area are referred to herein as "Special Benefit Area Improvements". This is
different than a Cost Center Assessment and currently the Declarant does not anticipate the level of a Special Benefit Assessment or to designate a Special Benefit Area in the Project.
Section 6. "Best Management Practices" or "BMPs" shall mean and refer to those certain structural, treatment control, and non-structural water quality management practices set forth in, or otherwise required pursuant to, the Water Quality Management Plan ("WQMP") and/or Standard Urban Storm Water Management Plan ("SUSMP") approved for or applicable to the Project. The structural and treatment control Best Management Practices may include, without limitation, landscape planting, hillside planting, roof runoff controls, efficient irrigation technology, slope and channel protection measures, storm drain signage, trash storage areas, litter control requirements, in-flow based treatment control BMPs (e.g., vegetated buffer strips, vegetated swales, multiple systems, bioretentions, and hydrodynamic separation systems), volume based treatment control BMPs (e.g., wet ponds, constructed wetlands, extended detention basins, detention .-29130.FCM 101521 -4-
pipes, water quality inlets, retention/irrigation, infiltration basins, infiltration trenches, media filters, and manufactured proprietary devices), detention basins, retention basins, debris basins, “V” ditches, bench drains, catch basins, catch basin media filters, fossil filters, inlet trash racks, drainpacs and other storm drain filtration devices, energy dissipaters, culverts, pipes, and related storm drain and water quality facilities constructed in the Project. The non-structural Best Management Practices generally require the Corporation and the Owners and other residents within the Project to be aware of the sensitive natural environment surrounding the Project and to take appropriate actions to control runoff from the Project. With respect to the Corporation, the non-structural Best Management Practices may include: (i) providing informational materials to the Owners and other residents within the Project regarding general good housekeeping practices for protection of storm water quality; (ii) restricting certain activities addressed in the informational materials to protect the quality of water entering the storm drain system; (iii) managing the landscaping on the Corporation Property, including, without limitation, using fertilizers and pesticides in accordance with the “Management Guidelines for Use of Fertilizers and Pesticides” which is included, if applicable, in the appendix to the Water Quality Management Plans; (iv) performing on a regularly scheduled basis maintenance consisting, at a minimum, of litter control, emptying of common trash receptacles and sweeping of any trash dumpster enclosures; (v) inspecting and cleaning any catch basins located on the Corporation Property as required by the Water Quality Management Plans approved for the Project (e.g., at least twice a year, once immediately prior to October 1st, the beginning of the rainy season, and once in January, and at such other times as may be required by the City Engineer); and (vi) sweeping any on-site private paved areas on a regular basis and prior to the rainy season. With respect to the Owners and other residents within the Project, the non-structural Best Management Practices may include, among other things, restricting certain activities to protect the quality of water entering the storm drain system (e.g., prohibiting the disposal of motor oil, paint products, car detergents and other pollutants into the storm drains in the Project). The Best Management Practices are designed and intended to control runoff and must be implemented by the Corporation and the Owners and other residents within the Project.
The Best Management Practices may be modified from time to time by the Declarant or any public agency having jurisdiction regarding water quality for runoff waters from the Project in order to control runoff as the Project develops and runoff conditions change. Compliance by the Corporation and the Owners with the Best Management Practices, as they may be modified from time to time, may be monitored and enforced by any public agency having jurisdiction regarding water quality for runoff waters from the Project, including, without limitation, the City, County, Regional Water Quality Control Board, and State Water Resources Control Board. .-29130.FCM 101521 -5-
Section 7. "Board" shall mean and refer to the Board
of Directors of the Corporation, elected in accordance with the ByLaws of the Corporation and this Declaration.
Section 8. "By-Laws" shall mean and refer to the ByLaws of the Corporation which have been, or will be, adopted by the Board, as such By-Laws may be amended, from time to time.
Section 9. "City" shall mean and refer to the City of
Covina, California, and its various departments, divisions, employees, and representatives.
Section 10. "Common Area" shall mean and refer to that
certain portion of Phase 1 described as Module "B" on the Condominium Plan for Phase 1, as more particularly described hereinbelow. Portions of the Annexation Property may be designated as additional "Common Area" for a subsequent Phase in any Notice of Annexation recorded in the Office of the County Recorder, in accordance with the Article herein entitled "Annexation of Additional Property."
Section 11. "Common Expenses" shall mean and refer to
the actual and estimated costs to be paid by the Corporation for the following: (a) owning, inspecting, maintaining, managing, operating, painting, repairing, and replacing the Corporation Property; (b) managing and administering the Corporation, including, but not limited to, compensation paid by the Corporation to managers, accountants, attorneys, budget preparers, and other consultants, and any Corporation employees; (c) all general office and administrative expenses incurred by the Architectural Review Committee; (d) providing utilities and other services to the Corporation Property; (e) maintaining insurance coverage and fidelity bonds [and paying deductibles] as provided for herein; (f) paying that portion of any Assessment attributable to Common Expenses not paid by the Owner responsible for payment; (g) paying taxes for the Corporation; (h) paying all reasonable out-of-pocket expenses actually incurred by the members of the Board and officers of the Corporation in performing their duties as provided herein [e.g., postage and photocopying, etc.]; (i) enforcing the provisions of this Declaration and the Articles, By-Laws, and Rules and Regulations; and (j) paying for all other goods and services designated by, or in accordance with, other expenses incurred by the Corporation for the benefit of all Owners, and reasonably required for the Corporation to perform its powers and duties as set forth in this Declaration or required by the Entitlements From City. Additionally, the Common Expenses shall include adequate reserves, as the Board shall determine to be appropriate, for the repair and replacement of those elements of the Corporation Property which must be repaired or replaced on a periodic basis, rather than on a regular annual basis. The Common Expenses may include actual or estimated costs to be paid by the Corporation for those Improvements to the Corporation Property which constitute .-29130.FCM 101521 -6-
Special Benefit Area Improvements; however, those Common Expenses shall be allocable as Special Benefit Area Expenses to the Owners of Condominiums within a Special Benefit Area.
Section 12. "Condominium" shall mean an estate in real
property, as defined in California Civil Code Section 4125(b), as same may be amended from time to time, consisting of a separate interest in a Condominium Unit, an undivided fractional fee interest in the Common Area, as more particularly shown and described in a Condominium Plan affecting such Condominium recorded in the Office of the County Recorder, together with all exclusive and nonexclusive easements appurtenant thereto (including, without limitation, any Exclusive Use Corporation Property areas described and/or depicted in this Declaration and/or a recorded Notice of Annexation that are appurtenant to such Condominium).
Section 13. "Condominium Building" shall mean and
refer to a building in which one or more Condominium Units are located.
Section 14. "Condominium Plan" shall mean and refer to
each of those instruments entitled "Condominium Plan," prepared in accordance with Sections 4120 and 4285-4295 of the California Civil Code, as the same may be amended, from time to time, and recorded in the Office of the County Recorder, affecting one (1) or more Phases of a Condominium Project, which shall refer to or show monumentation on the ground; (b) a three-dimensional description of a Condominium Project, one or more dimensions of which may extend for an indefinite distance upwards or downwards in sufficient detail to identify the Common Area, each Condominium Unit and the Corporation Property in the Condominium Project; and (c) a certificate consenting to the recordation thereof signed and acknowledged by the record owner of fee title to the property included in the Condominium Plan, and by either the trustee or the beneficiary of each recorded deed of trust and the Mortgagee of each recorded Mortgage encumbering property included in the Condominium Plan. The Condominium Plan for each Phase of a Condominium Project shall be recorded prior to or concurrently with the Notice of Annexation for the Phase.
Section 15. "Condominium Project" shall mean a real
property development consisting of Condominiums, as set forth in California Civil Code Section 4125(a), as the same may be amended from time to time.
Section 16. "Condominium Unit" shall mean and refer to
the elements of a Condominium which are not owned in common with the Owners of other Condominiums in the particular Phase in which the Condominium is located. Condominium Units in Phase 1 are more particularly described in the Article herein entitled "Description of the Condominiums" and in the Condominium Plan recorded for such Phase (where the term "Unit" may be used instead of the term .-29130.FCM 101521 -7-
"Condominium Unit"). Condominium Units in subsequent Phases shall be described in a Notice of Annexation and in the Condominium Plan recorded for each respective Phase of the Project. For purposes of this Declaration, the term "Condominium Unit" is deemed to be a "separate interest," as defined in Sections 4125(b) and 4185(a)(2) of the California Civil Code, as same may be amended from time to time.
Section 17. "Corporation" shall mean and refer to ZEST
OWNERS ASSOCIATION, a California nonprofit mutual benefit corporation, in which all Owners shall have a membership interest as more particularly described hereinbelow, provided that membership shall be limited to Owners. The Corporation is an "association" within the meaning of California Civil Code Section 4080.
Section 18. "Corporation Property" is used herein as
a generic term to mean and refer to: (a) all real and personal property, and to all Improvements thereon, which are owned by the Corporation; and (b) all real property, and Improvements thereon, over which the Corporation has an easement, lease and/or which the Corporation is otherwise responsible, pursuant to this Declaration or the Project conditions of approval imposed by the City, for managing, controlling and/or maintaining for the common use and benefit of all Owners in the Project. In this first phase of the Project, the Corporation Property is that portion of Lot 1 of Tract No. 83178 shown and described as Module "A" (excepting therefrom the Condominium Units) and Module "D" (Remainder) on the Condominium Plan and all that certain real property over which the Corporation has an easement for irrigation, landscaping, maintenance, and/or another purpose described in this Declaration.
Module "A" (excepting therefrom the Condominium Units) and Module "D" (Remainder) on the Condominium Plan, and the easements to the Corporation described herein, will be conveyed to the Corporation for the common use, benefit, and enjoyment of all Members as provided herein. If all of the Annexation Property is annexed into the Project and the Project is completed as proposed, the Corporation Property may include, without limitation, all easements to the Corporation set forth in this Declaration; portions of the Condominium Buildings, excepting therefrom the Condominium Units themselves, but including all Improvements thereto [including all structural elements, roofs, exteriors, decks, awnings, bearing walls, columns, beams, slabs, foundations, exterior stairs and landings, fire sprinklers, including sprinkler heads which protrude into the airspace of the Condominium Unit, if any, fire standpipes, fire alarm systems, fire extinguishers, fire hydrants, and other fire prevention equipment and/or facilities located on or servicing/protecting the Corporation Property, and other central services, pipes, ducts, flues, chutes, conduits, wires, exterior lighting and other utility installations wherever located (except all utility lines, installations and/or outlets thereof when located within or exclusively serving one Condominium Unit, including the internal and external telephone wiring designed to .-29130.FCM 101521 -8-
exclusively serve a Condominium Unit)]; private entryway, drives, aisles, guest parking areas, and related street Improvements in the Project (including, without limitation, asphalt, striping, stamped asphalt, decorative and enhanced paving, curbs, gutters, street signs, fire lane markings and signs, no parking and other traffic control signs, streetlights, etc.); portions of the private storm drainage facilities for the Project described and/or depicted as maintained by the Corporation on an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., storm drain inlets, catch basins, storm drain pipes, modular wetland systems, and other BMPs and/or devices originally required by the City for the Project - see Exhibit "D" attached hereto and incorporated by reference); portions of certain walls, fences, and gates in the Project described and/or depicted as maintained by the Corporation on an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., see Exhibit "H" attached hereto and incorporated by reference); portions of the private sewer lines and facilities described and/or depicted as maintained by the Corporation on an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., see Exhibit "I" attached hereto and incorporated by this reference - specifically excluding any sewer lateral that exclusively serves a Condominium); portions of the private water lines and facilities described and/or depicted as maintained by the Corporation on an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., see Exhibit "J" attached hereto and incorporated by this reference - specifically excluding any water lateral that exclusively serves a Condominium; however, unless maintained by the water provider, master water meters and any water submeters shall be maintained by the Corporation); common recreational facilities (e.g., outdoor furniture, trellis/arbor, bicycle racks, etc.); clustered mailbox structures (excluding the individual mailbox of each Owner and the hinges, keys, and lock thereof, which shall be maintained by the Owner); common irrigation equipment; common exterior lighting (e.g., lighting that is not controlled by a switch within an Owner’s Condominium); Project monuments, signs and directories; landscaping and irrigation Improvements located on the Corporation Property, including the landscaping and irrigation Improvements within the Project described and/or depicted as maintained by the Corporation an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., see Exhibit "K" attached hereto and incorporated by this reference), but excluding landscaping and Improvements located within any Exclusive Use Corporation Property (e.g., deck, patio, etc.); and landscaping, irrigation Improvements. Not all of the foregoing Improvements and property may be included in Phase 1 of the Project. Portions of the Annexation Property may be annexed separately or as part of a subsequent Phase and shall be designated as Corporation Property in any Notice of Annexation recorded in the Office of the County Recorder in accordance with the provisions of the Article herein entitled "Annexation of Additional Property." .-29130.FCM 101521 -9-
Section 19. "Cost Center" shall mean an area of the
Project for which the Corporation incurs expenses in the operation, maintenance, repair and/or funding of reserves that exclusively or disproportionally benefit only certain Condominiums in the Project (e.g., cost of fire alarm monitoring system, common sewer main, applicable to or servicing certain Condominium Units). Each Cost Center shall be designated by the Declarant or the Board in this Declaration and/or a recorded Notice of Annexation and shall be described in a Cost Center Budget reviewed by the DRE or the Board.
Section 20. "Cost Center Budget" shall mean and refer
to a budget that is reviewed by the DRE or the Board which sets forth the Cost Center Expenses of the Corporation budgeted to the Cost Center only.
Section 21. "Cost Center Expenses" shall mean the
expenses incurred by the Corporation in the operation, maintenance, repair and/or funding of reserves for a portion of the Project designated as a "Cost Center" by the Declarant or the Board in this Declaration and/or a recorded Notice of Annexation.
Section 22. "County" shall mean and refer to the County of Los Angeles, California, and its various departments, divisions, employees, and representatives.
Section 23. "Declarant" shall mean and refer to TH
BARRANCA LLC, a California limited liability company, and its successors and assigns, if such successors and assigns acquire any or all of Declarant’s interest in the Property for the purpose of purchase or sale, excluding any retail homebuyer who purchased his or her Condominium from the Declarant pursuant to a Final Subdivision Public Report issued by the DRE, and Declarant has expressly transferred or assigned to such successors or assigns its rights and duties as Declarant to all or any portion of the Project. For any successor assignee of "Declarant" to be deemed a Declarant under the terms of this Declaration, Declarant shall record in the County a document so designating said successor or assignee as Declarant. A successor Declarant shall also be deemed to include the beneficiary under any deed of trust securing an obligation from a then existing Declarant encumbering all or any portion of the Property, which beneficiary has acquired any such property by foreclosure, power of sale or deed in lieu of such foreclosure or sale.
Section 24. "Declaration" shall mean and refer to this
Declaration of Covenants, Conditions and Restrictions, and Reservation of Easements, and to all amendments to this Declaration as may be recorded, from time to time, in the Office of the County Recorder, in accordance with Section 4135 and Section 4250 et seq. of the California Civil Code. .-29130.FCM 101521 -10-
Section 25. "Dispute" shall have the meaning set forth
in Exhibit "G" to this Declaration, unless the context dictates otherwise.
Section 26. "DRE" shall mean and refer to the
Department of Real Estate of the State of California, which administers the sale of subdivided lands pursuant to Sections 11000, et seq., of the California Business and Professions Code, or any similar California statute hereinafter enacted.
Section 27. "Entitlements From City" shall mean any
and all agreements, building permits and related permits, conditions of approval, and other documents, instruments or similar writings involving the City which regulate or relate to utilization of real property in the Project, including, without limitation, all conditions imposed by the City Council, e.g., City Council Resolution No. 2021-68, all conditions imposed by the City Council in connection with its approval of the Site Plan Review (SPR) 20- 34, Environmental Impact Report (EIR) (SCH - 201808109), General Plan Amendment (GPA) 19-003; Zone Change (ZCH) 19-003; and the Covina Town Center Specific Plan (CTCSP) Amendment No. 19-001, as the same may be amended from time to time.
Section 28. "Exclusive Use Corporation Property" shall
mean those portions of the Corporation Property over which exclusive easements or licenses are reserved for the benefit of certain Owners, as described herein and shown on the Condominium Plans, including, without limitation, patios, decks, solar system locations, air conditioning pads, and internal and external telephone wiring designed to serve a single Condominium Unit but located outside the boundaries of the Condominium Unit, if applicable, in accordance with California Civil Code Section 4145, as same may be amended from time to time. The location of the Exclusive Use Corporation Property air conditioning pads shall be those locations as originally constructed by Declarant. The Exclusive Use Corporation Property solar system locations shall be those locations as originally constructed by Declarant or approved by the Board.
Section 29. "FHLMC" shall mean and refer to the
Federal Home Loan Mortgage Corporation (The Mortgage Corporation) created by Title III of the Emergency Home Finance Act of 1970, as amended, from time to time, including any successors thereto.
Section 30. "FNMA" shall mean and refer to the Federal
National Mortgage Association, a government-sponsored private corporation established pursuant to Title VIII of the Housing and Urban Development Act of 1968, as amended, from time to time, including any successors thereto.
Section 31. "GNMA" shall mean and refer to the Government National Mortgage Association administered by the United .-29130.FCM 101521 -11-
States Department of Housing and Urban Development, including any successors thereto.
Section 32. "Governing Documents" shall have the
meaning set forth in Civil Code Section 4150 and includes this Declaration, all Notices of Annexation recorded in the County Recorder’s Office pursuant to the Article of this Declaration entitled "Annexation of Additional Property", the Articles and ByLaws of the Corporation, and all Rules and Regulations adopted by the Board.
Section 33. "Improvements" shall mean and refer to all
structures and appurtenances thereto of every kind, including, but not limited to, street lights, buildings (including the Condominium Buildings), awnings, shades, screens, screen doors, skylights, side yard and rear yard fencing, mail kiosks, swimming pools, spas, garages, pavement, driveways, walkways, parking areas, perimeter walls, retaining walls, street trees, private storm drains, flood walls, flag poles, monument signs, patios, grading or disturbing the existing grade in any manner, irrigation equipment and all related facilities, exterior air conditioning units, solar systems, exterior stairs, handrails, and pathways, greenbelts, drainage swales, streetscapes, antennas and related facilities, exterior lighting and any landscaping which, if left in its natural state, would grow to a height in excess of twenty-five feet (25’).
Improvements shall also mean and refer to all additions and/or modifications to the exterior of any building, including, but not limited to, (a) painting the exterior of any building or other structure, (b) changing the roofing material on any building, and/or (c) building, constructing, installing, altering or planting, as the case may be, any spas, patio covers, patio slabs, deck covers, decks, gazebos, stairs, screening walls or fences, shades, awnings, screen doors, exterior doors, skylights, solar systems, air conditioning and/or water softening or refining fixtures or systems.
Section 34. "Include, Including" (whether capitalized
or not) shall mean "includes without limitation" and "including without limitation," respectively.
Section 35. "Limited Warranty" shall mean and refer to
the express written limited fit & finish warranty (if any) provided to the initial Owners who acquire a Condominium from the Declarant and/or the Corporation, as determined appropriate by the Declarant (e.g., see Exhibit "E"). Each Owner shall be responsible to ensure that the subsequent purchaser of such Owner’s Condominium is aware of the Limited Warranty and the procedures and forms which must be followed and executed to transfer such Limited Warranty, if applicable, to said subsequent purchaser.
Section 36. "Local Government Agency." Local Government Agency means the City, the County, public school district, .-29130.FCM 101521 -12-
public water district, local fire authority (e.g., Los Angeles County Fire Department, etc.), local vector control district, local flood control district, sanitation district, and any other local or municipal government entity or agency including, without limitation, any community service area, special assessment district, maintenance district or community facilities district, and the Regional Water Quality Control Board.
Section 37. "Lot" or "Parcel" shall mean and refer to
a plot of land which is separately described and numbered or lettered on a recorded tract map as a "lot" or "parcel" as such plot of land may be modified or otherwise adjusted by a recorded lot or parcel line adjustment or recorded certificate of compliance.
Section 38. "Maintain, Maintenance" (whether capitalized or not) shall mean "inspect, maintain, repair and replace" and "maintenance, repair and replacement," respectively; provided, however, that "maintain" or "maintenance" shall not include inspection, repair and replace(ment) where the context or specific language of this Declaration provides another meaning.
Section 39. "Maintenance Guidelines; Maintenance
Manual; Maintenance Recommendations." Maintenance Guidelines means any current written guidelines, setting forth procedures and standards for the maintenance and operation of Corporation Property or Condominium Improvements that may be provided to the Corporation or Owners by Declarant, or by any governmental agency or manufacturer or set forth herein for the maintenance of Corporation Property or a Condominium Unit and other Improvements Declarant has constructed on or in the Project. Maintenance Guidelines include any maintenance manual initially prepared at Declarant’s direction ("Maintenance Manual"), and recommended inspections and maintenance activities for components of the Corporation Property and any maintenance recommendations prepared by Declarant pertaining to the Corporation Property or Condominium and any Maintenance Obligations prepared by Declarant pertaining to the same (collectively, "Maintenance Recommendations").
Section 40. "Member" shall mean and refer to every
person or entity who holds membership in the Corporation, as more particularly set forth in the Article herein entitled "The Corporation," and shall be synonymous with the term "Owner." For purposes of voting, a "Member" shall also include a natural person appointed to be a Member for voting purposes by the governing authority of an Owner of a Condominium that is a legal entity other than a natural person (e.g., corporation, limited partnership, limited liability company, etc.) pursuant to California Civil Code Section 5105(b)(1).
Section 41. "Module" shall mean and refer to a
separate three-dimensional volume of land and/or airspace shown and .-29130.FCM 101521 -13-
designated as a "Module" on a Condominium Plan. A Module may include Condominiums within its boundaries; however, the Condominiums are not and do not constitute Modules in and of themselves.
Section 42. "Mortgage" shall mean and include any
mortgage or deed of trust, or other conveyance of a Condominium to secure the performance of an obligation, which conveyance will be reconveyed upon the completion of such performance, including an installment land sales contract (as defined in Sections 2985 through 2985.6 of the California Civil Code, as same may be amended, from time to time). The term "Deed of Trust," when used herein, shall be synonymous with the term "Mortgage."
Section 43. "Mortgagee" shall mean and refer to a person or entity to whom a Mortgage is made, and shall include the beneficiary of a Deed of Trust or the vendor under an installment land sales contract, as the case may be, and the assignor of a Mortgagee, beneficiary or vendor.
Section 44. "Mortgagor" shall mean and refer to a person or entity who mortgages the person’s or the entity’s property to another, i.e., the maker of a Mortgage, and shall include the trustor of a Deed of Trust and the vendee under an installment land sales contract.
Section 45. "Notice and Hearing" shall mean and refer
to written notice and a hearing before the Board or the Architectural Review Committee of the Corporation, if any, or other tribunal created by the Board in the manner provided in the ByLaws, at which the affected Owner shall have an opportunity to be heard in the manner provided herein and in the By-Laws.
Section 46. "Notice of Annexation" shall mean and
refer to that certain instrument recorded by Declarant utilized to annex all or any portion of the Annexation Property, in accordance with the provisions of this Declaration, thereby subjecting said subsequent Phase to the provisions of this Declaration and to the jurisdiction of the Corporation.
Section 47. "Owner" shall mean and refer to the record
Owner, or Owners if more than one (1), or the purchaser under a conditional sales contract of fee title to, or an undivided interest in, any Condominium in the Project. The term "Owner" shall include the Declarant, the vendee under an installment land sales contract (as described in Sections 2985 through 2985.6 of the California Civil Code, as same may be amended, from time to time) and the holder of a leasehold estate having a term of twenty (20) or more years, including renewal periods. The foregoing is not intended to include persons or entities who hold an interest in a Condominium merely as security for the performance of an obligation.
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Section 48. "Phase" shall mean and refer to a Lot or
Lots or portions thereof, improved with Condominiums or other Improvements which is (are) annexed into the Project in accordance with this Declaration, and which is (are) subject to a separate Final Subdivision Public Report issued by the DRE, unless the Phase consists only of Corporation Property which does not require a Final Subdivision Public Report.
Section 49. "Project" shall mean and refer to the
Property and to all Improvements constructed thereon, including the Condominium Buildings, and all Annexation Property, Condominium Buildings, and other Improvements constructed on the Annexation Property which is annexed to the Property and made subject to this Declaration in accordance with the applicable provisions of this Declaration.
Section 50. "Property or Phase 1" shall mean and refer
to that portion of Lot 1 of Tract No. 83178 improved with Condominiums and/or other Improvements which is the subject of the first Final Subdivision Public Report issued by the DRE for Lot 1 of Tract No. 83178 (as more fully described in Exhibit "A" attached hereto and incorporated by this reference).
Section 51. "Rules and Regulations" shall mean and refer to the Rules and Regulations adopted by the Board pursuant to the By-Laws and this Declaration, as they may be amended, from time to time.
Section 52. "Solar System" shall mean and refer to any
solar panel, solar collector, and associated wiring and/or other equipment of a solar energy system.
Section 53. "Tract No. 83178" shall mean and refer to
Tract No. 83178 in the City of Covina, County of Los Angeles, State of California, as more particularly described on Exhibit "A" attached hereto.
Section 54. "Utilities" shall, unless the context
dictates otherwise, mean and refer, collectively, to any and all public and private utility cables, lines, wires, cords, fibers, sleeves, conduits, vaults, antennae, systems, connections, meters, and other facilities and Improvements, including, without limitation, heating, air conditioning, and ventilation systems, mechanical systems, backflow preventers, storm and sanitary sewer systems, drainage systems and pollution control devices, common ducting systems for ventilation and utility services, domestic water systems, irrigation water systems, fire protection water and sprinkler systems, natural gas systems, electrical systems, telephone systems, telecommunications systems, cable television systems, satellite communication systems, internet, and other digital data communication systems, solar systems, and other .-29130.FCM 101521 -15-
utility systems and facilities reasonably necessary to service any Improvement situated in, on, over and under the Project.
Section 55. "VA/FHA" shall mean and refer to the
United States Department of Veterans Affairs and/or Federal Housing Administration, including the department or agency of the United States government as shall succeed to the VA and/or FHA. For purposes of the FHA’s requirements, the Articles, By-Laws, Declaration, and Condominium Plan shall constitute the "condominium legal documents.
Section 56. "Variable Element" shall mean one (1) or
more Improvements or maintenance areas, including, but not limited to, exterior building paint maintenance, insurance, and roof, designated by the Declarant in the DRE reviewed Budget or the Board, and where the expense of operating, maintaining, repairing, and replacing such Improvements or maintenance areas is borne solely or disproportionately (e.g., a variable/pro rata allocation based on square footage of the affected Condominium) by such specified Owners.
Section 57. "Variable Expenses" shall mean current
expenses attributable to a Variable Element which are subject to maintenance by the Corporation and reserves for said Variable Element (e.g., cost of insurance, maintaining exterior building paint and roof areas).
Section 58. "Water Quality Management Plans" shall
mean and refer to all applicable plans and requirements for the management of storm water at the Project, including, without limitation, any applicable National Pollutant Discharge Elimination System ("NPDES") permit requirements, Storm Water Pollution Prevention Plan ("SWPPP"), Standard Urban Storm Water Management Plan ("SUSMP"), Storm Water Quality Management Plan ("SWQMP"), Storm Water Management Plan ("SWMP"), Drainage Area Management Plan ("DAMP"), Local Implementation Plan ("LIP"), and other storm water quality management plans that may be prepared and approved for the Project in compliance with applicable federal, state and local laws. The Water Quality Management Plans address water runoff generated by the development Improvements within the Project and will be monitored by various public agencies (e.g., the Regional Water Quality Control Board and the City). The Water Quality Management Plans contain, among other things, certain Best Management Practices that must be followed by the Corporation, the Owners, and/or other residents within the Project. The Water Quality Management Plans and the related Best Management Practices may be modified at any time by the Declarant and/or the public agencies having jurisdiction over such matters.
.-29130.FCM 101521 -16-
Section 59. Interpretation.
(a) General Rules. This Declaration shall be
liberally construed to effectuate its purpose of creating a uniform plan for subdividing, marketing, selling, using, repairing, maintaining, improving, occupying, and enjoying the Condominiums in the Project. As used in this Declaration, the singular includes the plural, and the plural the singular. The masculine, feminine and neuter each includes the other, unless the context dictates otherwise.
(b) Articles, Sections and Exhibits. The Article
and Section headings are inserted for convenience only and may not be considered in resolving questions of interpretation or construction. Unless otherwise indicated, any references in this Declaration to articles, sections or exhibits are to Articles, Sections and Exhibits of this Declaration. Except as otherwise noted herein (e.g., the sample form of Limited Warranty, which is attached hereto for illustrative purposes and is not incorporated by reference), all exhibits attached to this Declaration are incorporated in this Declaration by this reference. The locations and dimensions of any
Improvements depicted on the Exhibits attached hereto and to any Notice of Annexation are approximate only, and, in the event of any conflict, the location and dimension of any such Improvements as built by Declarant shall control.
(c) Priorities and Inconsistencies. If there are
conflicts or inconsistencies between this Declaration and the Articles, By-Laws, or Rules and Regulations, then the provisions of this Declaration shall prevail. (d) Severability. The provisions of this
Declaration are independent and severable. A determination of invalidity, partial invalidity or unenforceability of any one (1) provision of this Declaration by a court of competent jurisdiction does not affect the validity or enforceability of any other provisions of this Declaration.
(e) Statutory References. All references made in
this Declaration to statutes are to those statutes as
currently in effect, as amended, or to subsequently enacted replacement statutes.
Section 60. Application of Definitions. The aforesaid
definitions shall be applicable to this Declaration and to any supplements or amendments hereto, including, but not limited to, any Notices of Annexation filed or recorded pursuant to the provisions of this Declaration, unless the context shall prohibit such application.
.-29130.FCM 101521 -17-
ARTICLE II
GENERAL PLAN OF DEVELOPMENT
Section 1. Introduction. The Declarant has designed
Zest as a multi-phase residential condominium project, which, if completed as proposed, may consist of one hundred fifty-one (151) residential Condominiums and Common Property. Nothing in this Declaration, and/or any Notice of Annexation is intended, or shall be interpreted, to constitute an "enhanced protection agreement" as defined in Section 901 of the California Civil Code. The Project will be developed in accordance with California Civil Code, Sections 4000 et seq., and in substantial conformance with the development plan and the architectural plans and other plans submitted to and approved by the City and/or reviewed by the DRE (which plans may set forth the architectural style and the size of the Condominiums). As of the recordation date of this Declaration, it is anticipated that the architectural style of the Condominiums in Phase 1 will be multi-story townhome-style and stacked residential Condominiums and that the square footages of the Condominium Units may range from approximately 743 to 1,825 square feet. The Corporation will maintain the Corporation Property (except for those portions of the Corporation Property maintained by an assessment district or other public entity and any Exclusive Use Property areas required to be maintained by Owners) and will be the management body for the Project, as provided herein. (a) As presently planned Phase 1 will consist of
^_________ (^) Condominiums approved for residential use and Common Property. Each Condominium Unit will be completed prior to the close of escrow for the sale of such Condominium.
The Condominiums are more particularly described in the Article herein entitled "Description of the Condominiums." The Owners in the Project will receive title to their respective Condominium Units, various easements (exclusive and nonexclusive, as set forth in this Declaration), an undivided one/^___________ (^1/__th) fractional fee interest in the Common Area, and a membership in the Corporation. (b) As presently planned, subsequent Phases may be
annexed as more particularly set forth in this Declaration, and the Condominium Units in such Phases may or may not be of similar construction, size, and appearance as the Condominium Units in Phase 1. The Owners in subsequent Phases will receive title to their respective Condominium Units, various easements (exclusive and nonexclusive, as set forth in this Declaration and the Notice of Annexation recorded on said Phase), an undivided fractional fee interest in the Common Area of such Phase, and a membership in the Corporation.
Section 2. Membership in the Corporation. As more
particularly set forth in this Declaration, each Owner of a .-29130.FCM 101521 -18-
Condominium in the Project shall automatically become a member of the Corporation, and shall be obligated for the payment of Assessments to the Corporation. In addition, each Owner, the Owner’s family, members, lessees, tenants, guests and invitees, will be entitled to the use of the Corporation Property within the Project, in accordance with this Declaration, the By-Laws and Rules and Regulations adopted by the Board.
Section 3. Annexation of Subsequent Phases. At such
time as future Phases are developed, if ever, Declarant may annex said Phases into the Project and Corporation pursuant to the terms and conditions set forth herein. If Declarant elects to annex said Phases, a Notice of Annexation shall be recorded on each Phase, which shall serve to impose the Protective Covenants set forth herein upon such Phase and to subject such Phase to the jurisdiction of the Corporation. The voting rights in the Corporation and the Assessments levied by the Corporation shall be adjusted as set forth herein.
Section 4. Declarant’s Use of Private Vehicular
Drives, Aisles, Guest Parking Spaces, and Utilities. For as long as Declarant owns any portion of the Property or Annexation Property, Declarant hereby reserves, together with the right to grant and transfer all or a portion of the same, easement rights to use the private vehicular drives, aisles, guest parking spaces, and any private utilities within the Project for, including, but not limited to, access and connection of utilities by Declarant for purposes of developing the real property comprising the Project and the Annexation Property.
Section 5. Post Tension Slabs. Each Owner of a
Condominium hereby acknowledges that the concrete slab for an Owner’s Condominium Unit MAY be reinforced with a grid of steel cables which were installed in the concrete and then tightened to create very high tension. This type of slab is commonly known as a "Post Tension Slab." Each Owner further acknowledges that cutting into a Post Tension Slab for any reason (e.g., to install a floor safe, to remodel plumbing, etc.) is very hazardous and may result in serious damage to the Condominium Unit and/or personal injury.
By accepting a grant deed to the Condominium, each Owner hereby specifically covenants and agrees that:
(a) He/she shall not cut into or otherwise tamper
with the Post Tension Slab;
(b) He/she shall not knowingly permit any other
person to cut into or tamper with the Post Tension Slab so long as Owner owns any interest in the Condominium;
(c) He/she shall disclose the existence of the Post
Tension Slab to any tenant, lessee, or grantee of the Condominium; and .-29130.FCM 101521 -19-
(d) He/she shall indemnify and hold Declarant, and
its respective officers, employees, contractors and agents, free and harmless from and against any and all claims,
damages, losses, or other liability (including attorneys’ fees) arising from any breach of this Section.
Section 6. Development Control. Nothing in this
Article or elsewhere in this Declaration shall limit, restrict, abridge or control, in any manner whatsoever, Declarant’s right to complete the planning, development, grading, construction, advertising, marketing, leasing and sales of the Condominiums, and all other property within the Project (including any property which may be annexed thereto pursuant to the provisions of this Declaration), including, without limitation, the following specific rights, which may be exercised by Declarant, or by its agents and employees, in conjunction with such development and marketing of Condominiums in the Project. Therefore, Declarant shall have the right to: (a) complete construction of any Improvements in the Project; (b) redesign or otherwise alter the style, size, color or appearance of any Improvements in any portion of the Project owned by Declarant and implement an Assessment schedule thereon consistent with such development subject to the restrictions on increasing Assessments set forth in the Declaration and applicable law (e.g., Civil Code Section 5605, Business and Professions Code Section 11018.7, etc.); (c) construct additional Improvements on the Annexation Property owned by Declarant; (d) subdivide, resubdivide, adjust Condominium or lot lines, grade or re-grade any portion of the Project owned by Declarant; and (e) otherwise control all aspects of designing, constructing, and phasing the Improvements in the Project, and of marketing and conveying Condominiums in the Project. In furtherance thereof, Declarant hereby reserves, unto itself and its successors and assigns for so long as Declarant owns any interest in the Property and/or the Annexation Property, however, not to exceed five years from the recordation of this Declaration, and is entitled to annex Annexation Property to the Project:
(a) A nonexclusive easement for ingress and egress
on, over and across the Project as necessary to construct the Condominium Units and all other Improvements;
(b) The exclusive right to maintain one (1) or more
sales office(s), model complex(es), construction trailer, interior design and decorator center(s) within property owned by Declarant, and parking area for employees, agents and prospective buyers; (c) The exclusive right to place reasonable signs,
flags, banners, billboards or other forms of advertising on any portion of the Project owned or controlled by Declarant and/or Corporation Property (specifically including the Project entry area), as Declarant deems necessary, irrespec- .-29130.FCM 101521 -20-
tive of size, color, shape or materials of such items as long as such use does not unreasonably interfere with the Owners’ reasonable use of the Corporation Property and all signs, flags, banners, billboards, and other forms of advertising have been reviewed and approved by the City prior to
installation and comply with all applicable City signage regulations and ordinances;
(d) A nonexclusive right to utilize the Corporation
Property and any unassigned open parking spaces in connection with its program for the marketing, sale or leasing of
Condominiums in the Project;
(e) The right to install, place, replace, construct, reconstruct, modify or remove any Improvement from any Condominium owned by Declarant, as Declarant may, in its sole discretion, deem appropriate;
(f) The right to conduct any commercial activity
upon any Condominium owned by Declarant which reasonably relates to the development, marketing, leasing or sale of the Condominiums or other property in the Project; and
(g) The right to utilize the Corporation Property
in the Project for marketing and promotional activities; however, if these activities could result in excluding an Owner from the reasonable use of the Corporation Property, the Declarant must first obtain approval from the Board, which approval may be withheld in the sole and absolute discretion of the Board.
Section 7. Non-Liability of Declarant. Nothing in
this Article or elsewhere in this Declaration shall be understood or construed to compel Declarant to construct the Project, nor to compel Declarant to annex said Phases into the Project. The purpose of this Article is merely to describe the legal relationship between the first and any subsequent Phases of the Project in the event all or any of such Phases shall be constructed and annexed into the Project.
ARTICLE III
DESCRIPTION OF THE CONDOMINIUMS
Declarant, in order to establish a plan of Condominium
ownership for the Property, does hereby declare that it has divided, and does hereby divide, the Property into the following freehold estates:
Section 1. Condominium Unit. Each Condominium Unit
shall be a separate interest, as defined in Sections 4125(b) and .-29130.FCM 101521 -21-
4185(a)(2) of the California Civil Code, as same may be amended from time to time, consisting of a Residential Airspace Element, and the Garage Airspace Element defined below in accordance with the plans and specifications for each Condominium Unit, as more particularly shown and described on the Condominium Plan:
(a) Residential Airspace Element. The residential
airspace element is bound by and contained within the interior unfinished surfaces of the perimeter walls, floors, ceilings, windows, and doors of said element, and the airspace encompassed thereby, identified on the Condominium Plan by its respective Condominium Unit number. The lower and upper boundaries of each residential airspace element are horizontal or sloped planes, the elevations of which are indicated in the diagrams (e.g., vertical sections) and/or tables, if any, set forth in the Condominium Plan. The lateral boundaries of each residential airspace element are vertical planes at the limits of the horizontal dimensions shown in the Condominium Plan for each residential airspace element.
(b) Garage Airspace Element. The garage airspace
element is bound by and contained within the interior unfinished surfaces of the perimeter walls, floors, ceilings, and garage door of said element, and the airspace encompassed thereby, identified on the Condominium Plan by the letter "G" and its respective Condominium Unit number. The lower and upper boundaries of each garage airspace element are horizontal or sloped planes, the elevations of which are indicated in the diagrams (e.g., vertical sections) and/or tables, if any, set forth in the Condominium Plan. The lateral boundaries of each garage airspace element are vertical planes at the limits of the horizontal dimensions shown in the Condominium Plan for each garage airspace element.
Each Condominium Unit includes both the portion of the
Condominium Building so described and the airspace so encompassed, all windows and doors of said Condominium Unit (including all locks, handles, latches, screens, weatherstripping, exterior doors, and the garage door), the forced air heating unit, the air conditioning compressor, if any, the hot water heater, all utility laterals, lines, pipes and/or outlets when located within or exclusively serving said Condominium Unit (including the internal and external telephone wiring and water and sewer laterals designed to exclusively serve the Condominium, no matter where such are located), all built-in appliances and fixtures, the garage door opener, and the interior staircase, if any, within the airspace of the Condominium Unit.
Section 2. Presumption of Boundaries of Condominium
Units. In interpreting this Declaration, any recorded Notice of Annexation, the Condominium Plan, and all instruments of conveyance, the existing physical boundaries of the Condominium Unit, or .-29130.FCM 101521 -22-
of a Condominium Unit reconstructed in substantial accordance with the original Condominium Plan thereof, shall be conclusively presumed to be its boundaries, rather than the metes and bounds (or other description) expressed in this Declaration and/or a recorded Notice of Annexation, Condominium Plan, or instrument of conveyance, regardless of settling or lateral movement of the Condominium Building and regardless of minor variances between the boundaries shown in the Condominium Plan, in the deed and/or in this Declaration and/or a recorded Notice of Annexation, and the actual boundaries of the Condominium Building.
Section 3. Common Area. As described and referred
to hereinabove, the Common Area in Phase 1 consists of Module "B," as depicted on the Phase 1 Condominium Plan, but does not include any of the Condominium Units or Corporation Property. The Common Area is comprised of a three-dimensional airspace volume, the dimensions of which are more particularly described in the Condominium Plan.
Section 4. Exclusive Use Corporation Property. Exclusive Use Corporation Property shall mean and refer to that portion of the Corporation Property (if any) which is reserved for the exclusive use of the Owners of particular Condominium Units. An Exclusive Use Corporation Property constitutes an exclusive easement or license appurtenant to its assigned Condominium Unit, subject to the exclusive uses and purposes set forth herein. Each Exclusive Use Corporation Property deck, patio, solar system location, and air conditioning pad, and the Condominium Unit to which such items are appurtenant (as applicable - the Condominiums may not have all of the Exclusive Use Corporation Property areas described below) is identified in the Condominium Plan as follows:
(a) Deck. If applicable, the Exclusive Use
Corporation Property deck shall consist only of an easement for use of the airspace located within the exterior finished surfaces of the perimeter Condominium Building walls, doors and/or windows of the adjoining residential element, and the interior finished surfaces of the deck perimeter walls and/or railings described and/or depicted on the Condominium Plan.
The Exclusive Use Corporation Property deck identified in the Condominium Plan by the letter "D" followed by a Condominium Unit number is hereby assigned to such Condominium Unit as shown on the Condominium Plan. The lower and upper boundaries of deck are set forth in the Condominium Plan. Any storage areas located in said deck area are considered part of the deck area even if not specifically depicted on this Condominium Plan. The Exclusive Use Corporation Property deck specifically shall not consist of any ownership interest in the surface or structural components of the deck or
surrounding Improvements.
.-29130.FCM 101521 -23-
(b) Patio. If applicable, the patio area bound by
and contained within the exterior finished surfaces of the perimeter walls, doors and/or windows of the adjoining residential element and garage element, and the edges of the concrete patio structure as originally built by Declarant, identified in the Condominium Plan by the letter "P" and its respective Condominium Unit number, is hereby assigned to such Condominium Unit as shown on the Condominium Plan. The
lateral and lower and upper boundaries of each patio area are set forth in the Condominium Plan. Any storage areas located in said patio area are considered part of the patio area even if not specifically depicted on the Condominium Plan. In the event of any conflict between the depiction of the patio in the Condominium Plan and the location of the patio as built by the Declarant, the location of the patio as built by the Declarant shall govern and control.
(c) Solar System Location. If applicable, the
Exclusive Use Corporation Property solar system location (i.e., location where solar panels, solar collectors, and other elements of a solar energy system exclusively serving a Condominium Unit may be installed) shall be the location as originally constructed by Declarant or approved by the Board.
The solar system is owned and shall be maintained by the Owner.
(d) Air Conditioning Pad. If applicable, the
location of the Exclusive Use Corporation Property air
conditioning pads shall be those locations as originally constructed by Declarant. Although the location of the
Exclusive Use Corporation Property air conditioning pads may be generally depicted on the Condominium Plan, in the event of any conflict between the depictions in the Condominium Plan and the location of the air conditioning pads as built by the Declarant, the location of the air conditioning pads as built by the Declarant shall govern and control. In addition, these easements include the conduit and wiring in the Condominium Building extending from such air condition pad to the
Condominium Unit that it serves.
Subject to the provisions herein, including the Article entitled "Repair and Maintenance," and/or in a recorded Notice of Annexation, it shall be the obligation of each and every Owner to keep his respective Exclusive Use Corporation Property in a neat, clean, safe and attractive condition at all times, except for the structural integrity of any Exclusive Use Corporation Property deck, any waterproofing originally installed by Declarant on the Exclusive Use Corporation Property deck, and the landscaping originally installed by Declarant around the patios. The Corporation shall be responsible for the maintenance of the structural components of the Exclusive Use Corporation Property deck, any waterproofing originally installed by Declarant on the .-29130.FCM 101521 -24-
Exclusive Use Corporation Property deck, and the landscaping originally installed by Declarant around the patios (where applicable, e.g., along Barranca); provided however, if any maintenance or repairs are required due to willful or negligent acts or omissions of any Owner, the Owner’s family, lessees, tenants, guests, or invitees, the Corporation shall levy a Compliance Assessment against the Owner for such costs. Each Owner shall be responsible for all maintenance of (as applicable - an Owner’s Condominium may not include all of the following Exclusive Use Corporation Property areas): the Owner’s Exclusive Use Corporation Property deck (other than the structural integrity of the deck and any waterproofing originally installed by Declarant on the deck, which shall be maintained by the Corporation), patio (including the structure of the patio, but excluding the landscaping originally installed by Declarant around the patio which shall be maintained by the Corporation), solar system location and solar system, and air conditioning pad and air conditioning compressor and other equipment and wiring; provided, however, that the Board shall have the right to require that only a contractor or other person approved by the Board enter or conduct any activities affecting the roof or other portion of a Condominium Building or other Corporation Property (e.g., in connection with an Owner’s maintenance of the Owner’s Exclusive Use Corporation Property patio, deck, air conditioning pad or air conditioning compressor or equipment and wiring, or solar system location or solar system, and to condition such entry on the contractor’s or other person’s compliance with reasonable requirements for the protection of the roof or other portion of a Condominium Building or other Corporation Property (e.g., requirements that the contractor be appropriately licensed, maintain and provide the Corporation with written evidence of insurance coverage on which the Corporation is named as an additional insured, obtain the Corporation’s written permission to access the roof or other portion of a Condominium Building or other Corporation Property, execute an indemnity agreement in favor of the Corporation, keep the Corporation Property free of mechanic’s liens, and/or restore the Corporation Property to substantially the same condition that existed prior to the contractor’s entry on the Corporation Property; requirements that a representative of the Corporation be present during the performance of all activities on the Corporation Property, etc.). Notwithstanding the foregoing, the Board (in its sole and absolute discretion) shall have the right, but not the obligation, by the unanimous vote of all of the directors on the Board, to require that the Corporation or its contractors (rather than the Owner or its contractors) perform all work on the roof or other portion of a Condominium Building or other Corporation Property required to maintain, repair, and/or replace the Owner’s Exclusive Use Corporation Property, in which event the Owner shall pay all of the Corporation’s costs and expenses (including all costs and expenses charged by the Corporation’s contractor) to perform such work. Should landscaping be placed on an Exclusive Use Corporation Property deck or patio, the Owner must take .-29130.FCM 101521 -25-
adequate steps to capture water from such plants and to prevent any damage to the Project or unsightly conditions. The Board shall have the right to restrict pots or other items from being placed on top of or attached to any fence or railing or to allow the potted plants to grow on the exterior of a deck railing or fence or all or portions of a Condominium Building. Each Owner shall be responsible to pay for the repairs of any damage which may be caused by the placing of landscaping (including potted plants) in the Owner’s Exclusive Use Corporation Property area. No Owner shall make any Improvements to the Owner’s Exclusive Use Corporation Property deck, patio, solar system location, or air conditioning pad (as applicable), or any other Exclusive Use Corporation Property area unless and until the Architectural Review Committee has approved plans of such Improvements showing such detail as the Architectural Review Committee or its consultant deems appropriate. The Architectural Review Committee shall have the right to restrict or prohibit any items from being placed on or attached to an Exclusive Use Corporation Property deck, patio, or other Exclusive Use Corporation Property area which are within view of other Owners and which the Architectural Review Committee deems to be unattractive or not appropriate. Each Owner assumes all risks which may result from Improvements he or she makes to his or her Exclusive Use Corporation Property area or Condominium Unit, and each Owner indemnifies and holds harmless the Corporation, the Architectural Review Committee, Declarant and each other Owner from any claims, demands, liabilities, judgments, attorney’s fees and other obligations which arise out of or are incurred in connection with the installation, existence or removal of such Improvements.
Section 5. Undivided Fractional Fee Interest in
Common Area. The interest in the Common Area of Phase 1 hereby established and which shall be conveyed with each respective Condominium Unit in Phase 1 is a one/^_______th (1/^th) undivided fractional fee interest. The above respective undivided fractional fee interest in the Common Area established and to be conveyed with the respective Condominium Units, as indicated above, cannot be changed. Declarant, for and on behalf of itself, and its successors, assigns and grantees, covenants and agrees that neither the Condominium Unit nor the respective undivided fractional fee interest in the Common Area shall be separately conveyed or encumbered. An otherwise valid conveyance or encumbrance referring only to the Condominium Unit shall also convey or encumber the respective undivided fractional fee interest in the Common Area. Any attempt to convey or encumber the undivided fractional fee interest in the Common Area without the respective Condominium Unit shall be null and void.
Section 6. Easements Over Corporation Property. Each
Owner shall have a nonexclusive easement appurtenant to the Owner’s Condominium for ingress, egress, use, and enjoyment in, on, over, under, across, and through the Corporation Property in the Project, except those portions of the Corporation Property set aside as .-29130.FCM 101521 -26-
Exclusive Use Corporation Property, subject to the provisions in this Declaration, the By-Laws, and the Rules and Regulations adopted by the Board.
Section 7. Components of Condominium Ownership. Each
Condominium in Phase 1 includes: (a) a separate interest in a Condominium Unit, as defined in Section 1 hereinabove; (b) all easements, exclusive and nonexclusive, appurtenant to the respective Condominium Unit; (c) a one/^___th (1/^__th) undivided fractional fee interest as tenants-in-common in the Common Area in this Phase; and (d) a membership in the Corporation.
Section 8. Condominium Numbering. The ^_____ (^__)
individual Condominium Units in the first phase of development in the Project which are hereby established and which shall be individually conveyed are described and numbered on the Condominium Plan.
Section 9. Power of Attorney to Correct Errors. Upon
acceptance of a deed to a Condominium in the Project, each Owner, on behalf of himself and his or her Mortgagees, hereby grants to the Declarant a special power of attorney to correct any errors in a Condominium Plan by executing on behalf of the affected Owners and Mortgagees an amendment to the Condominium Plan and an instrument to effect any conveyances or partial reconveyances necessary to correct such errors. Unless broader provisions are provided in this Declaration, the power hereby given to the Declarant is limited as follows:
(a) The power may be exercised only to correct errors in a Condominium Plan as evidenced by a written statement which describes the error(s) and which is signed by the engineer who prepared the Condominium Plan or by Declarant.
(b) The power may not be exercised on behalf of an Owner or his or her Mortgagee if the Owner’s Condominium or Exclusive Use Corporation Property, if applicable, would be reduced in size by reason of the correction, unless written approval is obtained from the affected Owner and Mortgagee.
The power hereby given is coupled with an interest and
may not be revoked by an Owner, but may be revoked by a Mortgagee.
Any such revocation by a Mortgagee shall be by means of its signed statement of revocation recorded in the official records of the County.
Section 10. Mortgage Interest and Other Encumbrances
to Take Subject to Power of Attorney. The acceptance or creation of any Mortgage or other encumbrance, whether or not voluntary, created in good faith or given for value, shall be deemed to be accepted or created subject to each of the terms and conditions of the power of attorney described herein.
.-29130.FCM 101521 -27-
Section 11. Guest Parking Spaces. All guest parking
spaces in the Project shall be clearly marked, shall not be assigned to or used by residents of the Condominiums, and shall be used only by guests of the residents of the Condominiums, on a first-come, first-served basis, in accordance with the Rules and Regulations. Except as otherwise provided in this Declaration (e.g., Temporary Parking, etc.), residents of the Condominiums must park in their garages in accordance with the Rules and Regulations.
Section 12. Reservation of Easements Over Corporation
Property For Subsequent Phases. Declarant hereby reserves the right to grant nonexclusive easements over the Corporation Property in Phase 1 (except any portions of the Corporation Property set aside as Exclusive Use Corporation Property and except for any portions subject to the rights reserved by Declarant as set forth in this Declaration) in favor of each Owner of a Condominium in a subsequent Phase at such time as the annexation of such Phase becomes effective, and the Owners of the Condominiums described in this Declaration shall automatically obtain nonexclusive easements over all Corporation Property which is a part of such subsequent Phase, except any portions of the Corporation Property set aside as Exclusive Use Corporation Property or subject to rights reserved by Declarant.
ARTICLE IV
RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE CORPORATION PROPERTY
Section 1. Owners’ Rights of Access and Use of the
Corporation Property. Each Owner shall have a nonexclusive easement and right to access, use, and enjoy the Corporation Property (including, without limitation, a nonexclusive easement and right to use the private entryway, drives, aisles, and related Improvements originally constructed by Declarant within the Project for purposes of pedestrian and vehicular ingress, egress, and access, and drainage and utilities), subject to the terms and provisions of this Declaration, the By-Laws, and Rules and Regulations adopted by the Board. Said right shall be appurtenant to and shall pass with title to every Condominium, subject to the limitations set forth in Section 2 below.
Section 2. Limitations on Owners’ Rights. Each
Owner’s rights of access, use and enjoyment of the Corporation Property set forth in Section 1 hereinabove shall be subject to the provisions of this Declaration, including, but not limited to, the following:
(a) The right of Declarant to designate additional
Corporation Property and Common Area by recordation of one (1) or more Notices of Annexation, pursuant to the provisions of .-29130.FCM 101521 -28-
the Article herein entitled "Annexation of Additional Property"; (b) The right of the Corporation to reasonably
limit the number of guests of Owners using the Corporation Property;
(c) The right of the Corporation to establish and
enforce reasonable Rules and Regulations pertaining to the use of the Condominiums, Corporation Property, and Exclusive Use Corporation Property, including all facilities located
thereon, and to enact uniform and reasonable Architectural Guidelines, in accordance with the Article herein entitled "Architectural Review";
(d) The right of the Corporation, in accordance
with its Articles, By-Laws and this Declaration, to borrow money with the assent of sixty-seven percent (67%) of the voting power of the Corporation, excluding Declarant, and/or to mortgage, pledge, deed in trust or otherwise hypothecate any or all of its real or personal property as security for money borrowed or debts incurred, for the purpose of improving or repairing the Corporation Property and related facilities; (e) Except as expressly prohibited by law, the
right of the Corporation to suspend the rights of use of the Corporation Property of any Member and the persons deriving such rights from any Member for any period during which any Assessment against such Member’s Condominium remains unpaid and delinquent (except such rights as are reasonably required to access said Member’s Condominium); and after Notice and Hearing, to impose monetary penalties or suspend such rights for a period not to exceed thirty (30) days for any violation of this Declaration or Rules and Regulations, it being understood that any suspension for either nonpayment of any Assessments or breach of such restrictions shall not constitute a waiver or discharge of the Member’s obligations to pay Assessments as provided herein;
(f) Subject to the terms and provisions of the
Article herein entitled "Mortgagee Protection," the right of the Corporation to dedicate or transfer easements over all or any part of the Corporation Property to any public agency, authority, entity, or utility company or other utility
provider for such purposes and subject to such conditions as may be agreed to by the Owners. No such dedication or transfer shall be effective unless: (1) an instrument approving said dedication or transfer is signed by Owners representing sixtyseven percent (67%) of the voting power of the Corporation, excluding Declarant, and recorded in the Office of the County Recorder, and (2) a written notice of the proposed dedication or transfer is sent to every Owner not less than fifteen (15) .-29130.FCM 101521 -29-
days nor more than thirty (30) days in advance; provided, however, for as long as the Declarant owns any portion of the Property or Annexation Property the dedication or transfer of easements over all or any part of any Condominium or
Corporation Property for utilities or for other public
purposes consistent with the intended use of the Corporation Property shall not require the prior approval of the Members of the Corporation or the Mortgagees;
(g) The right of Declarant (and its sales agents,
representatives, customers and prospective purchasers) to the nonexclusive use of the Corporation Property without charge for sales, display access and exhibit purposes related to selling, marketing, showing and otherwise disposing of
Condominiums in the Project, which rights Declarant hereby reserves; provided, however, such use shall cease upon the date that Declarant no longer owns any Condominium in the Project. In addition, such use shall not unreasonably
interfere with the rights of enjoyment of other Owners as provided herein;
(h) The right of the Corporation to perform and
exercise its duties and powers as set forth herein;
(i) The right of the Corporation to approve, which
approval shall not be unreasonably withheld, and impose various conditions on access to the Corporation Property for the purpose of allowing an Owner to maintain the Owner’s Condominium Unit or Exclusive Use Corporation Property
designed to exclusively serve the Owner’s particular Condominium Unit (e.g., the right to require that only a contractor or other person approved by the Board enters the roof or other portion of a Condominium Building or other Corporation
Property and to condition such entry on the contractor’s or other person’s compliance with reasonable requirements for the protection of the Corporation Property [e.g., requirements that the contractor be appropriately licensed, maintain insurance coverage on which the Corporation is named as an additional insured, execute an indemnity agreement in favor of the Corporation, keep the Corporation Property free of
mechanic’s liens, and/or restore the Corporation Property to substantially the same condition that existed prior to the contractor’s entry on the Corporation Property; requirements that a representative of the Corporation be present during the performance of all activities in the Corporation Property, etc.]). This includes, but is not limited to, the right of the Corporation, acting through the Board, to reasonably restrict or condition access to roofs or other portions of Condominium Buildings or other Corporation Property,
maintenance and landscaped areas, and similar areas of the Corporation Property and to prohibit any modification to any portion of the Corporation Property (e.g., including, without .-29130.FCM 101521 -30-
limitation, the Condominium Buildings). Notwithstanding the foregoing, the Board (in its sole and absolute discretion) shall have the right, but not the obligation, by the unanimous vote of all of the directors on the Board, to require that the Corporation or its contractors (rather than the Owner or its contractors) perform all work on the roof or other portions of a Condominium Building or other Corporation Property required to maintain, repair, and/or replace any equipment,
Improvement, or utility laterals or lines exclusively serving the Owner’s Condominium, in which event the Owner shall pay all of the Corporation’s costs and expenses (including all costs and expenses charged by the Corporation’s contractor) to perform such work;
(j) Other rights of the Corporation, the
Architectural Review Committee, the Board, the Owners and Declarant with respect to the Corporation Property as may be provided for in this Declaration;
(k) The right of Declarant to grant and transfer
easements on, over and across the Project for the development, installation, construction and maintenance of utilities, including, without limitation, electric, telephone, cable television, water, gas (if any), sanitary sewer lines and drainage facilities, as shown on the recorded map of Tract No. 83178 and as may be reasonably necessary for the proper maintenance and/or development of the Project, or conveyance of Condominiums and/or Corporation Property;
(l) Any limitations, restrictions or conditions
affecting the use or maintenance of the Corporation Property imposed by Declarant or by the City, Local Government Agency, or other governmental entity having jurisdiction to impose any such limitations, restrictions or conditions, including, but not limited to, the rights of the City, Local Government Agency, or such other governmental entity having jurisdiction to use their vehicles or appropriate equipment over those portions of the Corporation Property designed for vehicular movement to perform municipal functions or emergency or essential public services; and
(m) Any limitations or restrictions on an Owner’s
right to use the Owner’s Condominium so as not to interfere with any and all street light standards, mailboxes,
Improvement locations, and utility easements affecting such Owner’s Condominium and/or the exercise of the Corporation’s maintenance obligations.
Section 3. Delegation of Corporation Property Use
Rights. Subject to the rights reserved to the Corporation as set forth herein, any Owner who resides within the Project may delegate, in accordance with the By-Laws, the Owner’s rights of use .-29130.FCM 101521 -31-
of the Corporation Property to the members of the Owner’s immediate family and any other persons residing within the Owner’s Condominium. In the event an Owner has rented or leased the Owner’s Condominium, the Owner’s rights of use of the Corporation Property shall be automatically delegated to the Owner’s tenants or lessees for the duration of their tenancy, and the Owner shall forfeit any rights of use of the Corporation Property, if applicable, for the duration of such tenancy, except those rights of ingress and egress which are reasonably necessary to carry out the appropriate duties of a landlord. All rental and lease agreements shall be in writing, and a copy of such agreements shall be provided to the Board or the property management company as set forth in the Rules and Regulations. In the event of a conditional sales contract, the seller under the contract shall be deemed to delegate the seller’s rights of use of the Corporation Property to the purchaser under the contract.
Section 4. Easements for Vehicular Traffic. In addition to the general right and easements for access, use and enjoyment granted herein, there shall be, and Declarant hereby reserves unto itself, and its successors and assigns, together with the right to grant and transfer all or a portion of the same, a nonexclusive appurtenant easement for vehicular ingress, egress and access over the private entryway, drives, and aisles within the Project to among other things, (i) access any portion of the Annexation Property not annexed into the Project and (ii) provide ingress, egress and access to and from any portion of the Annexation Property not annexed into the Project.
Section 5. Easements for Air Conditioners/Solar
Systems. As to any air conditioning system (e.g., compressor, wiring, etc.) or solar system (i.e., solar panel, solar collector, and associated wiring and/or other equipment of a solar energy system) which Declarant or an Owner (with the Board’s prior written approval) located on or within a portion of the Corporation Property (e.g., on a roof, deck, or other portion of a Condominium Building, etc.), there is hereby created, established and granted an exclusive easement on said portion of the Corporation Property for the permanent placement of such air conditioning system or solar system in accordance with the as-built condition by Declarant or approved by the Board. Additionally, and subject to
restrictions, conditions, and limitations which may be imposed by the Board, each such affected Owner is granted an easement for ingress, egress and access on and over the Corporation Property to maintain, repair and replace the Owner’s respective air conditioning system or solar system; provided, however, that the Board shall have the right to require that only a contractor or other person approved by the Board enter or conduct any activities affecting the roof or other portion of a Condominium Building or other Corporation Property (e.g., in connection with an Owner’s maintenance of the air conditioning system or solar system exclusively serving the Owner’s Condominium, etc.) and to condition .-29130.FCM 101521 -32-
such entry on the contractor’s or other person’s compliance with reasonable requirements for the protection of the Corporation Property (e.g., requirements that the contractor be appropriately licensed, maintain and provide the Corporation with written evidence of insurance coverage on which the Corporation is named as an additional insured, obtain the Corporation’s written permission to access the roof or other portion of a Condominium Building or other Corporation Property, execute an indemnity agreement in favor of the Corporation, keep the Corporation Property free of mechanic’s liens, and/or restore the Corporation Property to substantially the same condition that existed prior to the contractor’s entry on the Corporation Property; requirements that a representative of the Corporation be present during the performance of all activities in the Corporation Property, etc.).
Notwithstanding the foregoing, the Board (in its sole and absolute discretion) shall have the right, but not the obligation, by the unanimous vote of all of the directors on the Board, to require that the Corporation or its contractors (rather than the Owner or its contractors) perform all work on the roof or other portion of a Condominium Building or other Corporation Property required to maintain, repair, and/or replace any air conditioning system or solar system exclusively serving the Owner’s Condominium, in which event the Owner shall pay all of the Corporation’s costs and expenses (including all costs and expenses charged by the Corporation’s contractor) to perform such work. The locations of the air conditioning pads and solar system locations shall be the locations as built by the Declarant or approved by the Board.
Section 6. Easements for Utilities. The rights and
duties of the Owners of Condominiums within the Project with respect to utilities shall be governed by the following:
(a) Each respective utility company or other
utility provider shall maintain all utilities owned by such utility company or other utility provider; provided, however, that if any utility company or other utility provider shall fail to do so, it shall be the obligation of each Owner to maintain those utilities located upon such Owner’s Condominium or which provide service to only such Owner’s Condominium (e.g., sewer/water laterals), and it shall be the obligation of the Corporation to maintain those utilities located upon or which provide service to only the Corporation Property or which provide service to more than one (1) Condominium (e.g., trunk/main line utilities). Notwithstanding the foregoing, internal and external telephone wiring, sanitary sewer, storm drain, water, electricity, HVAC (heating, vents, air
conditioning), utilities, service lines, and other facilities, designed to serve a single Condominium (which are not public), but located outside the boundaries of the Condominium, shall be maintained by the Owner of said Condominium. Additionally, the Corporation shall maintain, repair and replace any stamped concrete in the Corporation Property (e.g., private entryway, .-29130.FCM 101521 -33-
drives, and aisles) that is damaged, destroyed or altered in any manner as a result of repair or maintenance work to utilities performed by a utility company or other utility provider, unless such repair or maintenance work is caused by or the result of an Owner’s or the Owner’s family member’s, guests’ or invitees’ negligence or intentional conduct; (b) Wherever utilities are installed within the
Project and it becomes necessary to gain access to said utilities through a Condominium owned by someone other than the Owner of the Condominium served by said utilities (e.g., where utility lines run through a common soffit or chase in a Condominium Building or other Corporation Property, etc.), the Owner of the Condominium served by said utilities shall have the right, and is hereby granted an easement to the full extent necessary therefor, to enter upon such other
Condominium or to have the utility companies or other utility providers enter upon such other Condominium to repair, replace and generally maintain said utilities; provided, however, that the Board shall have the right to require that only a
contractor or other person approved by the Board enter the Corporation Property (including, without limitation, the roof and other portions of the Condominium Buildings, portions of the landscaped areas and private entryway, drives, and aisles in the Corporation Property where sewer or water laterals exclusively serving a Condominium Unit are located, etc.) and to condition such entry on the contractor’s or other person’s compliance with reasonable requirements for the protection of the Corporation Property (e.g., requirements that the
contractor be appropriately licensed, maintain insurance coverage on which the Corporation is named as an additional insured, execute an indemnity agreement in favor of the Corporation, keep the Corporation Property free of mechanic’s liens, and/or restore the Corporation Property to
substantially the same condition that existed prior to the contractor’s entry on the Corporation Property; requirements that a representative of the Corporation be present during the performance of all activities in the Corporation Property, etc.). In the event that any damage shall be proximately caused by such entry, said Owner or utility company or other utility provider shall repair the same at its respective expense; (c) Whenever utilities are installed within the
Project, and said utilities serve more than one (1)
Condominium, the Owner of each Condominium served by said utilities shall be entitled to the full use and enjoyment of such portions of same as service the Owner’s Condominium; (d) In the event of a dispute between Owners
respecting the repair or rebuilding of the aforesaid
utilities, or the sharing of the cost thereof, said Owner .-29130.FCM 101521 -34-
shall first contact the appropriate utility company, other utility provider, or applicable private purveyor in an effort to resolve the dispute; provided, however, if the dispute remains unresolved, upon the written request of one (1) of such Owners addressed to the Corporation, the matter shall be submitted to the Board who, after Notice and Hearing in which the Owner shall have an opportunity to be heard, shall decide the dispute, and the decision of the Board shall be final and conclusive on the Owners;
(e) Easements over the Project for the
construction, installation, placement, operation, maintenance, repair, and replacement (as necessary) of utilities, all as described and/or depicted on the recorded map of Tract No. 83178 and/or the Improvement plans submitted by Declarant and approved by the City, or otherwise of record, and/or as may be hereafter required or needed to service the Project, are hereby reserved by Declarant, together with all secondary easements rights necessary for the full enjoyment of such easements, including, without limitation, the right of
Declarant to grant and transfer all or a portion of such easements to any public or private utility company or other third party;
(f) Each Condominium granted to an Owner is subject
to all easements for utilities, as more particularly shown on the map of Tract No. 83178 or otherwise of record or apparent.
Any installation or construction of landscaping or structures within said easement areas may be done only in accordance with the terms, conditions and provisions of said easements. Each Owner acknowledges that such Improvements (including landscaping) may, unless otherwise prohibited, be removed by the respective utility company or other utility provider, private purveyor, or public agency to maintain, repair or replace any of the foregoing facilities without any liability to the Owner to repair or restore any Improvements (including landscaping); and
(g) To the extent required by the City, all Project
utilities (including facilities and wires for the supply and distribution of electrical energy, telephone, cable
television, etc.) shall be placed and maintained underground in accordance with the City’s Municipal Code. In addition, all ground-mounted utility appurtenances such as transformers, air conditioning condensers, etc., shall be adequately
screened using a combination of concrete or masonry walls, and/or landscaping to the reasonable satisfaction of the City’s Director of Community Development or his/her designee.
Section 7. Easements for Corporation’s Exercise of
Rights and Obligations. Declarant hereby creates, establishes, grants and reserves a nonexclusive easement in favor of the Corporation for ingress, egress and access on, over and across .-29130.FCM 101521 -35-
those portions of the Condominiums in the Project as reasonably required by the Corporation to perform its maintenance obligations and exercise its inspection rights and other rights for the Project and Corporation Property, as more particularly set forth herein (including, but not limited to, in the Articles entitled "Powers and Duties of the Corporation" and "Repair and Maintenance"). In the event it becomes necessary for the Corporation to enter upon any Condominium for purposes of: (a) inspecting or maintaining the Project or the Corporation Property; or (b) bringing an Owner and/or the Owner’s Condominium into compliance with this Declaration in accordance with the provisions set forth herein, the Corporation, and its duly authorized agents and employees, shall have the right, after reasonable notice to the Owner and at a reasonable hour of the day, to enter upon such Owner’s Condominium for the performance of such work. Such entry shall be made with as little inconvenience to the Owner as is practicable, and in the event that any damage shall be proximately caused by such entry, the Corporation shall repair the same at its expense. Notwithstanding the foregoing, no advance notice of entry is required in the event of an emergency or for normal maintenance (e.g., maintenance of landscaping and irrigation in those areas of the Condominiums described and/or depicted as maintained by the Corporation on Exhibit "K" attached hereto and/or in a recorded Notice of Annexation, etc.). No Owner may alter, remove, or install any Improvement in those portions of the Owner’s Condominium or other property required to be maintained by the Corporation (e.g., landscape maintenance areas described on Exhibit "K" to this Declaration and/or a recorded Notice of Annexation, etc.) or interfere with the Corporation’s maintenance of such Improvements.
Section 8. Easements for Clustered Mailboxes/Light
Standards. In order to comply with the various requirements of the City and the United States Postal Service, clustered mailbox structures and/or light standards may be installed on certain Condominiums within the Project. Easements are hereby created, granted and established on and over the affected Condominiums (e.g., Exclusive Use Corporation Property), if any, in favor of all Owners in the Project and the United States Postal Service for delivery and deposit and retrieval of mail, and the utility company or other utility provider, if any, and the Corporation, for maintenance of any light standards.
Section 9. Easements Over Sidewalks and Walkways. There are hereby created and reserved non-exclusive reciprocal appurtenant easements, granted in favor of all Owners, the members of their families, their lessees and tenants and/or their respective guests and invitees, for pedestrian access, use and enjoyment on, over and across all sidewalks and walkways within the Corporation Property, if any.
Section 10. Easements for Drainage. There are hereby
created, established, granted and reserved over each Condominium .-29130.FCM 101521 -36-
(e.g., Exclusive Use Corporation Property patios and decks) in the Project easements for drainage according to the patterns for drainage created by the Declarant during the Project construction and the grading plans for the Project approved by the City, as well as according to the actual, natural and existing patterns for drainage. Each Owner covenants and agrees that the Owner shall not obstruct or otherwise interfere with said drainage patterns of waters, or, in the alternative, that in the event it is necessary and essential to alter said drainage pattern for the protection and use of the Owner’s Condominium, the Owner shall make adequate provisions for proper drainage and obtain all appropriate approvals from the respective governmental authorities, as applicable, before altering said drainage pattern. In the event any portion of the collector drainage system in the Project is damaged, destroyed or not properly maintained, any Owner affected by such drainage system may cause said repair, restoration or maintenance work to be completed and shall be entitled to recover the appropriate expenses from the Owner responsible for such damage, destruction or improper maintenance.
Section 11. Easement for Area Drains. Declarant hereby establishes, grants, and reserves nonexclusive reciprocal easements over the Condominiums (e.g., Exclusive Use Corporation Property patios and decks), and other Corporation Property for drainage purposes to accommodate the drainage system, including, but not limited to area drains and pipes, originally installed by Declarant pursuant to the precise grading and construction plans or during the Project construction by Declarant. Unless maintained by an assessment district or other public entity or the Corporation, the Condominium Owner served by said drainage system shall be responsible to maintain and preserve said system in an operating condition to ensure proper drainage on, over, under, across and through the Owner’s Exclusive Use Corporation Property patio and/or deck area (as applicable) in accordance with the established drainage patterns created by the Declarant during the Project construction and the grading plans for the Project, as well as according to the actual, natural, and existing patterns for drainage, and shall bear the cost of the maintenance, repair or replacement associated with the drainage system which affects the Owner’s Condominium (e.g., Exclusive Use Corporation Property patio or deck). No Owner shall alter or remove the drainage system or modify the grade of the Owner’s Exclusive Use Corporation Property patio or deck area (as applicable) or other Corporation Property without the prior express written consent of all applicable governmental authorities exercising jurisdiction over the Condominium and the Architectural Review Committee. In the event any portion of the drainage system is damaged, destroyed or not properly maintained, any Condominium Owner affected by such drainage system may (after obtaining all requisite approvals from the Corporation and City) cause said repair, restoration or maintenance work to be completed and shall be entitled to recover the appropriate expenses from the Condominium Owner responsible for .-29130.FCM 101521 -37-
such damage, destruction or need for maintenance. Notwithstanding the foregoing, if any portion of the drainage system is damaged or destroyed as a proximate result of any act or omission of any Owner, or any member of the Owner’s family, guests, tenants, lessees and/or invitees (without regard to fault), such Owner shall (after obtaining all requisite approvals from the Corporation and City) immediately repair and/or rebuild such drainage system, and shall bear all of the costs thereof, including any cost and/or expense related to personal injury or property damage to any person, Condominium, or Corporation Property in the Project.
Section 12. Easements for Construction and Sales.
Declarant hereby expressly reserves for itself, for the benefit of its agents, employees and contractors, and for the benefit of its successors and assigns, for a period of five (5) years from the recordation of this Declaration, or until all Condominiums in the Property and Annexation Property are initially sold (and escrows closed), whichever occurs first, nonexclusive easements for access, ingress and egress in, on, over, and across the Project as necessary to construct the Improvements, and further reserves the exclusive right to carry on normal sales activity, including the operation of a models complex and sales office, and the display of promotional signs and exhibits in connection with the sale or lease of Condominiums in the Project. Furthermore, nothing in this Declaration shall limit the right of Declarant to establish additional licenses, easements, and rights-of-way in favor of Declarant, utility companies or other utility providers, or others as may, from time to time, be reasonably necessary for the development of the Project. The foregoing rights established and reserved by Declarant shall be subject only to the applicable regulations and requirements of the City. The foregoing rights of Declarant may be assigned to any successor to all or part of Declarant’s interest in the Project by an express assignment recorded in the Office of the County Recorder.
Section 13. Easements for Community Cable Television,
Telecommunication Systems and Alarm System Cabling. There are hereby reserved for the benefit of Declarant, and its successors and assigns, together with the right to grant and transfer all or a portion of the same, nonexclusive easements for ingress, egress and access on, over, under and across the Project for purposes of installation, operation, maintenance, repair, inspection, replacement and removal of transmission lines and other facilities and equipment for (a) a community antenna television system, (b) telecommunications and fiber optics systems, and (c) alarm system cabling. Such easements shall be freely transferable to any other person(s) or entity(ies) for the purpose of providing any or all of such services. The exercise of all rights reserved hereunder shall not unreasonably interfere with the Owners’ use and enjoyment of their respective Condominiums.
.-29130.FCM 101521 -38-
Section 14. Reservation of Construction Rights by Declarant. In order that the Project be completed and established as a residential condominium project, nothing in this Declaration shall limit the right of Declarant to: (a) complete construction of any Improvements in the Project; (b) redesign or otherwise modify the Improvements owned by Declarant; (c) construct such additional Improvements on any portion of the Project owned by Declarant; or (d) otherwise control all aspects of constructing the Project or selling or leasing of Condominiums in the Project. Furthermore, nothing in this Declaration shall limit the right of Declarant to establish additional licenses, easements and rights-of-way in favor of Declarant, utility companies or other utility providers, or others, or to make offers of dedication to the City or other public agencies, as may, from time to time, be reasonably necessary for the development of the Project. The foregoing rights established and reserved by Declarant shall be subject only to the applicable regulations and requirements of the City and the DRE. The foregoing rights of Declarant may be assigned to any successor to all or part of Declarant’s interest in the Project by an express assignment recorded with the County Recorder.
Section 15. Easements for Public Services. In addition
to the foregoing easements over the Corporation Property, there is hereby created, established and granted to the City and other Local Government Agencies non-exclusive easements over the Project for the exercise of their rights and performance of their obligations and other public services, including, but not limited to, emergency vehicle access easements and the right of police, fire, ambulance, emergency services, trash collection, and other public service personnel to enter the Project for purposes of serving the health and welfare of all Owners in the Project, inspecting and maintaining all public utilities, inspecting and maintaining the private storm drain system, and removing graffiti.
Section 16. Control of Corporation Property. Control
and/or title of the Corporation Property (excluding those portions of the Corporation Property which are subject to the various rights reserved by Declarant as set forth in this Declaration) shall be turned over by Declarant to the Corporation prior to or simultaneously with the first close of escrow for the sale of a Condominium in the Project. Without limiting the generality of the foregoing, Declarant shall convey fee title to Corporation Property to the Corporation free and clear of all encumbrances and liens, except property rights in and to the Corporation Property which are of record or created herein, and any current real property taxes, which shall be prorated to the date of transfer. As more particularly set forth in the Article herein entitled "Enforcement of Bonded Obligations," in the event that Improvements proposed to be constructed within the Corporation Property have not been completed prior to the first close of escrow in the Project, as may be evidenced by a Notice of Completion recorded in the County Recorder’s Office pursuant to California Civil Code Section 8182, the comple- .-29130.FCM 101521 -39-
tion of such Improvements shall be assured in accordance with Section 11018.5 of the California Business and Professions Code, or any similar statute hereinafter enacted, and the applicable regulations of the DRE. The Corporation shall be obligated to undertake all maintenance responsibilities for the Corporation Property when the Corporation levies Assessments for the maintenance thereof, or when the City approves the Corporation Property Improvements (as evidenced by the release by the City of any bonds posted by Declarant as required by City) installed by Declarant, whichever is first to occur. Notwithstanding the foregoing, if the contractors or subcontractors of Declarant are contractually obligated to maintain or warrant the landscaping or other Improvements on the Corporation Property for a specified period in which said contractors or sub-contractors shall perform such maintenance, the Corporation shall not interfere with the performance of such warranty or other contractual maintenance obligations. Maintenance performed by such contractors or subcontractors shall not serve to postpone the commencement of Assessments pursuant to this Declaration, nor entitle an Owner to claim any offset or reduction in the amount of such Assessments.
Declarant is not obligated to install any Corporation Property Improvements other than those required by the City pursuant to the Project approval requirements. The nature, design, quality and quantity of all Improvements to the Corporation Property shall be determined by Declarant in its sole discretion in accordance with the terms of the Project approvals. In the event that a dispute arises between Declarant and the Corporation with respect to the nature, design, quality or quantity of the Improvements, or the acceptance of maintenance responsibilities therefor, the Corporation shall be obligated to accept ownership and/or control of the Corporation Property and undertake maintenance responsibilities pending resolution of the dispute. Notwithstanding anything to the contrary herein or in the By-Laws for the Board, commencing on the date of the first annual meeting of the Owners, Declarant shall relinquish control over the Corporation’s ability to decide whether to initiate a construction defect claim under Division 2, Part 2, Title 7 (commencing with Section 895) of the California Civil Code.
Therefore, the Declarant, current employees and agents of Declarant, Board members who are appointed by Declarant, Board members elected by a majority of votes cast by Declarant, and all other persons whose vote or written consent is inconsistent with the intent of the preceding sentence, are prohibited from participating and voting in any decision of the Corporation or Owners to initiate a defect claim.
Section 17. Easements for Encroachments. Declarant
reserves for its benefit and the benefit of the Owners, and hereby creates, establishes, and grants to the Owners a reciprocal easement appurtenant to each Condominium over the Condominium Units and Corporation Property for the purpose of (i) accommodating any existing encroachment of any wall, eave, overhangs, wing walls and/or any Improvement existing only as of the date the escrow .-29130.FCM 101521 -40-
initially closed for the sale of the Condominium from the Declarant to an Owner, and (ii) maintaining the same and accommodating authorized construction, reconstruction, repair, shifting, movement, or natural settling of such encroachments or Improvements. Declarant further reserves reciprocal easements for utility services and repairs, replacement and maintenance of the same over the Corporation Property for the benefit of the Owners. Use of the foregoing easements may not unreasonably interfere with each Owner’s use and enjoyment of Owner’s respective Condominium.
Section 18. Reservation of Easements for Inspection,
Maintenance, and Repair. Declarant hereby reserves unto itself, and its successors and assigns, together with the right to grant or transfer all or a portion of the same, non-exclusive easements to enter any Condominium, including but not limited to the interior of any Condominium Unit and Exclusive Use Corporation Property (e.g., deck, patio, etc.), for purposes of inspection, testing, and repair as determined appropriate by Declarant (e.g., as part of a program of customer service, etc.). Such entry shall be made after reasonable notice to the Owner and at a reasonable hour of the day and with as little inconvenience as practically possible to the Owner.
Section 19. Other Easements and Rights. In addition
to the foregoing easements, the Project is encumbered by all easements set forth on the recorded map of Tract No. 83178 (including, without limitation, easements for emergency access, public utilities, storm drain purposes, ingress, egress, and access), all other easements recorded in the Office of the County Recorder, and access easements in favor of the Corporation over the Condominium Units and Exclusive Use Corporation Property as reasonably necessary to enable the Corporation to perform its obligations and exercise its rights under this Declaration.
Declarant reserves for its benefit a non-exclusive easement over the entirety of the Project as reasonably necessary to maintain, repair, and replace any Improvements (including, without limitation, storm drainage facilities and other Best Management Practices) that have not yet been conveyed to the Corporation.
ARTICLE V
THE CORPORATION
Section 1. Membership. Every person or entity who or
which is an Owner as defined hereinabove shall be a Member of the Corporation. For purposes of voting, a "Member" shall also include a natural person appointed to be a Member for voting purposes by the governing authority of an Owner of a Condominium that is a legal entity other than a natural person (e.g., corporation, limited partnership, limited liability company, etc.) pursuant to California Civil Code Section 5105(b)(1). The .-29130.FCM 101521 -41-
foregoing, however, is not intended to include persons or entities who hold an interest in a Condominium in the Project merely as security for the performance of an obligation. All memberships in the Corporation shall be appurtenant to the Condominium owned by each Member, and memberships in the Corporation shall not be assignable, except to the person or entity to whom the title to the Condominium has been transferred, as provided in Section 5 hereinbelow. Ownership of such Condominium shall be the sole qualification for membership in the Corporation. The memberships in the Corporation shall not be transferred, pledged or alienated in any way, except upon the transfer of title to said Condominium, and then only to the purchaser or Mortgagee of such Condominium. Any attempt to make a prohibited membership transfer shall be void and will not be reflected in the books of the Corporation.
Section 2. Voting Rights. The Corporation shall have
two (2) classes of voting membership, as follows:
(a) Class A. Class A Members shall be all Owners,
with the exception of the Declarant until such time as the Class B membership is converted to Class A membership, and shall be entitled to one (1) vote for each Condominium owned.
When more than one (1) person holds an interest in any
Condominium, all such persons shall be Members. The vote for such Condominium shall be exercised as they determine among themselves, but in no event shall more than one (1) vote be cast with respect to any Condominium. The Corporation shall recognize the vote cast by a Co-Owner, unless another Co-Owner shall cast a conflicting vote, in which case, both votes shall be null and void, and not recognized by the Corporation. The non-voting Co-Owner or Co-Owners shall be jointly and
severally responsible for all of the obligations imposed upon the jointly owned Condominium.
(b) Class B. The Class B Member shall be the
Declarant and shall be entitled to three (3) votes for each Condominium owned in the Project upon which Declarant is then paying the appropriate monthly Assessments provided for hereinbelow. The Class B membership shall cease and be
converted to Class A membership upon the happening of either of the following events, whichever occurs earliest:
(1) The second anniversary of the first close
of escrow for the sale of a Condominium pursuant to the original issuance by the DRE of the most recently issued Final Subdivision Public Report for a Phase of the
Project;
(2) The fourth anniversary of the first close
of an escrow for the sale of a Condominium pursuant to
the original issuance by the DRE of a Final Subdivision Public Report for Phase 1.
.-29130.FCM 101521 -42-
Any action by the Corporation which must have the
approval of the membership of the Corporation before being undertaken shall require the vote or written assent of both a majority of the Class B membership as well as a majority of the Class A membership so long as there are two (2) outstanding classes of membership, unless a specific provision of this Declaration or the By-Laws or Articles of the Corporation requires (i) the approval of a greater percentage of the voting membership, or (ii) a vote by Members other than Declarant, or (iii) a specific approval percentage of all the Members. Notwithstanding the foregoing, any action by the Corporation pursuant to the Article contained herein entitled "Enforcement of Bonded Obligations" shall only require a majority of the voting power of the Owners, other than Declarant.
Section 3. Special Procedures. At the first annual
election, the Declarant may appoint a majority of the directors of the Board for two-year terms. Notwithstanding the foregoing, the Class A Members shall be entitled to elect at least one of the members of the Board, so long as there are two (2) classes of membership outstanding in the Corporation, and all members of the Board (including those appointed by Declarant) shall be subject to removal, with or without cause, as provided in the By-Laws and California law. The requirements of this Section 3 of this Article V are intended and shall be construed to comply with the time frame and other requirements set forth in California law and the regulations of the California Commissioner of Real Estate (e.g., Commissioner of Real Estate Regulation 2792.18, 2792.19, etc.) regarding the transfer of control of the Corporation from the Declarant to the Members.
Notwithstanding the foregoing or any provision in this
Declaration, transfer of control of the Corporation shall pass to the Owners of Condominiums no later than the latest to occur of the following: (a) one hundred twenty (120) days after the date by which seventy-five percent (75%) of the Condominiums in the Project have been conveyed by the Declarant to the Owners; or (b) three (3) years after completion of the Project, as evidenced by the first conveyance of a Condominium by Declarant to an Owner. The time frame established under California or local laws if specific provisions regarding the transfer of control exist shall take precedence.
Section 4. Vesting of Voting Rights. The voting
rights attributable to any given Condominium in the Project as provided for herein shall not vest until the Assessments provided for hereinbelow have been levied by the Corporation against said Condominium.
Section 5. Adjustment of Voting Rights. The voting
rights in the Corporation shall be adjusted on the first day of the month immediately following the first close of an escrow for the sale of a Condominium in a subsequent Phase of the Project. .-29130.FCM 101521 -43-
Section 6. Transfer. The Corporation membership held
by any Owner of a Condominium shall not be transferred, pledged or alienated in any way, except as incidental to the sale of such Condominium, and the membership shall be automatically transferred upon the sale of such Condominium. In the event of such sale, the Corporation membership may only be transferred, pledged or alienated to the bona fide purchaser or purchasers of the Condominium, or to the Mortgagee (or third party purchaser) of such Condominium upon a foreclosure sale, deed in lieu or other remedy set forth in the mortgage. Any attempt to make a prohibited transfer is void and will not be reflected upon the books and records of the Corporation. The Corporation may levy a reasonable transfer fee against new Owners and their Condominiums (which fee shall be a Compliance Assessment chargeable to such new Owner) to reimburse the Corporation for the actual administrative cost of transferring the memberships to the new Owners on the records of the Corporation.
Section 7. Record Dates. For the purposes of
determining Members entitled to notice of any meeting, to vote or to exercise any other rights with respect to any lawful action, the Board may fix in advance record dates as provided in the By-Laws.
Section 8. Notices. All notices and demands shall be
given in writing by personal delivery, express mail, or by certified mail, postage prepaid, and return receipt requested.
Notices shall be considered given on the earlier of (a) receipt, if personally delivered or express mailed to the addressee, or to a partner or an officer of the addressee if the addressee is a partnership or corporation, or (b) forty-eight (48) hours following deposit in the United States mail, or (c) verified delivery by facsimile, provided any such "fax" or facsimile is followed by delivery in accordance with (a) or (b) herein. Notices to the Corporation shall be addressed as determined by the Board.
ARTICLE VI
POWERS AND DUTIES OF THE CORPORATION
Section 1. Management Body. The Corporation is hereby
designated as the management body of the Project. The Members of the Corporation shall be the Owners in the Project, as provided herein, and the affairs of the Corporation shall be managed by a Board of Directors, as more particularly set forth in the By-Laws.
The initial Directors shall be appointed by the Declarant.
Thereafter, the Board shall be elected as provided in said By-Laws.
Section 2. Powers. The Board, for and on behalf of
the Corporation, shall have the right and power to do all things necessary to conduct, manage and control the affairs and business of the Corporation. Subject to the provisions of the Articles, the .-29130.FCM 101521 -44-
By-Laws and this Declaration, the Board shall have all general powers authorized under the California Corporations Code for nonprofit mutual benefit corporations, and shall have, but not be limited to, the following specific powers:
(a) Enforce the provisions of this Declaration
(including but not limited to the ability to record a notice of noncompliance or violation as allowed by law), including any amendments thereto, and all contracts or any agreements to which the Corporation is a party;
(b) Acquire title, manage, maintain, repair and
replace all Corporation Property and Improvements located thereon, including all personal property, in a neat, clean, safe and attractive condition at all times, and pay all utilities, gardening and other necessary services for the Corporation Property, all as more specifically set forth herein, including but not limited to, the Article herein entitled "Repair and Maintenance";
(c) Maintain fire, casualty, liability and worker’s
compensation coverage, fidelity bond coverage and other insurance coverage pursuant to the terms of that Article herein entitled "Insurance";
(d) Obtain, for the benefit of the Corporation
Property, all commonly metered water, gas (if any) and
electric services, and may provide for refuse collection and cable (or CATV) television service;
(e) Grant easements or licenses, where necessary,
for utilities, storm drain, and sewer facilities over, on and across the Corporation Property to serve the Project;
(f) Pay all taxes and special assessments which
would be a lien upon the entire Project or the Corporation Property, and discharge any lien or encumbrance levied against the entire Project or the Corporation Property;
(g) Levy and collect Assessments on the Owners of
all Condominiums in the Project in which Assessments have commenced, and enforce payment of such Assessments in
accordance with the terms and provisions set forth in the Article herein entitled "Effect of Nonpayment of Assessments:
Remedies of the Corporation";
(h) Pay for reconstruction of any portion of the
Corporation Property damaged or destroyed;
(i) Delegate its powers (including, without
limitation, the power to delegate its powers to committees or .-29130.FCM 101521 -45-
employees or a property management company in accordance with the requirements of this Declaration and applicable law); (j) Employ and retain a professional manager and/or
management company to perform all or any portion of the duties and responsibilities of the Board and engage such other personnel (including attorneys, budget preparers, and accountants) as necessary for the operation of the Project and administration of the Corporation;
(k) Enter into any Condominium when necessary in
connection with maintenance or construction for which the Corporation is responsible;
(l) Subject to notification to the DRE, contract
with Declarant, its successors or assigns, for the purpose of entry into a maintenance and/or subsidy agreement, made by and between Declarant and the Corporation, for the purpose of temporarily reducing and/or abating the financial obligations of Owners in the Project;
(m) Contract and purchase such other labor,
services, materials, supplies and the like, as needed for the proper maintenance of the Corporation Property and/or proper operation of the Corporation;
(n) Adopt reasonable Rules and Regulations concerning the parking of vehicles along the streets, roads and/or drives in the Project, maintenance, improvement, use and/or occupancy of any portion of the Project and election procedures in compliance with California Civil Code Sections 4340-4379 and 5105;
(o) Grant exclusive easements to Owners over portions of the Corporation Property in accordance with California Civil Code Section 4600, if applicable, as same may be amended from time to time, and, where required by applicable law, with the assent of sixty-seven percent (67%) of the voting power of the Corporation;
(p) Execute lot line and Condominium boundary
adjustments (and corresponding deeds), enter into a
maintenance and/or other agreement with Declarant or a third party, subject to Civil Code Section 4600, if applicable, grant fee title to or easements over the Corporation Property to Declarant or a third party, and/or receive fee title to or an easement over real property owned by Declarant or a third party as reasonably necessary due to those conditions in the field where it is not readily apparent where Lot lines or Condominium boundaries are located and the respective party’s maintenance responsibilities commence and end, and such adjustments, deeds and/or agreements will promote a clearly .-29130.FCM 101521 -46-
defined and uniform maintenance plan by the respective
parties;
(q) Grant easements or licenses to any public
agency, governmental entity or utility, where necessary, for utilities, storm drains, sidewalks, pathways, and sewer facilities on, over and across the Corporation Property to serve the Project for purposes consistent with the use of the Corporation Property or the Project for residential purposes; (r) Subject to compliance with Section 5925 et seq.
of the California Civil Code, as same may be amended from time to time, institute, defend, settle or intervene on behalf of the Corporation in litigation, arbitration, mediation, or administrative proceedings in matters pertaining to (i) enforcement of this Declaration, Rules and Regulations and ByLaws; (ii) damage to the Corporation Property; (iii) damage to the Condominiums which arises out of, or is integrally related to, damage to the Corporation Property that the Corporation is obligated to maintain or repair;
(s) Execute all necessary documents in order to
effectuate the Limited Warranty for the Corporation Property (if any), including, without limitation, any Limited Warranty validation form which may be part thereof;
(t) Authorize an agent, management company
representative, or bookkeeper to appear and participate in a small claims court action on behalf of the Corporation in accordance with California Code of Civil Procedure Section 116.540(i), (j);
(u) Without any limitation of the foregoing powers,
(1) operate, maintain, and inspect the Corporation Property and its various components in conformance with any Maintenance Guidelines and any Maintenance Manual, and (2) review any Maintenance Manual for necessary or appropriate revisions as deemed necessary by the Board (e.g., at least an annual review);
(v) Organize and host events promoting community
participation in the Project, including, without limitation, functions that give Members the opportunity to meet
candidates, Board members or candidates or various committee members;
(w) Enter into maintenance, cost sharing and/or
easement agreements with owners of property adjacent to or in the vicinity of the Project (including, without limitation, Local Government Agencies and/or the owner of the Adjacent Commercial Property) or any owners association. Unless
otherwise specified in the agreement or an amendment to this .-29130.FCM 101521 -47-
Declaration, any such agreements entered into by Declarant with any Local Government Agency, other property owners, or utility provider relating to the Project (e.g., agreements for the provision of domestic water, fire water, reclaimed water, sewer, electricity, gas, etc., to the Project) shall be binding on the Corporation. Notwithstanding any other
provisions of this Declaration regarding the term of contracts the Declarant for providing services to the Corporation, the Corporation shall have the power to enter into maintenance, use, subsidy, or similar agreements with Declarant;
(x) Pursue claims on any title insurance policy
held by the Owners or the Corporation, in the event a title claim regarding the Corporation Property is made by any third party. Each Owner hereby delegates, on a non-exclusive basis, and assigns to the Corporation any rights he or she may have under his or her title insurance policies to the extent that the title claim relates to the Corporation Property; and (y) Perform any and all other acts and things that
a nonprofit mutual benefit corporation organized under the laws of the State of California is empowered to do, which may be necessary, convenient or appropriate in the administration of its affairs for the specific purposes of meeting its duties as set forth in this Declaration.
Section 3. Duties. Notwithstanding the Corporation’s
obligations, as more specifically set forth in the Article herein entitled "Repair and Maintenance," the Board shall perform and execute the following duties for and on behalf of the Corporation:
(a) Own, maintain and operate the Corporation
Property, for the common use and benefit of all Owners in the Project;
(b) Provide, water, sewer, gas (if any),
electricity, garbage and trash collection, and other necessary utility services for the Corporation Property and, if not separately metered or provided, for the Condominiums;
(c) Provide insurance for the Corporation and its
Members in accordance with the provisions of the Article hereinbelow entitled "Insurance" and distribute any notices thereof required by law, as same may be amended, from time to time;
(d) Accept, as part of the Project, all property
included in or annexed to the Project, in accordance with the terms and provisions of this Declaration, and accept all Owners as Members of the Corporation. In addition, the
Corporation shall accept all Corporation Property, conveyed, .-29130.FCM 101521 -48-
leased or otherwise transferred to it, if any, by Declarant, its successors or assigns, or appropriate governmental agency; (e) Maintain and repair all portions of the
Corporation Property in a neat, clean, safe, attractive, sanitary, healthy, and orderly condition at all times and paint, maintain, repair and replace all of the Corporation Property Improvements so as to keep same in a neat, clean, safe, attractive, sanitary, healthy, and orderly condition at all times. If all of the Annexation Property is annexed into the Project and the Project is completed as proposed, unless otherwise maintained by the City, County, a nature
conservancy, landscape and lighting district, or similar nonprofit entity approved by the City, assessment district or other public entity, the Corporation shall maintain, in a condition comparable to the condition originally approved by the City, all easements to the Corporation set forth in this Declaration; portions of the Condominium Buildings, excepting therefrom the Condominium Units themselves, but including all Improvements thereto [including all structural elements, roofs, exteriors, decks, awnings, bearing walls, columns, beams, slabs, foundations, exterior stairs and landings, fire sprinklers, including sprinkler heads which protrude into the airspace of the Condominium Unit, if any, fire standpipes, fire alarm systems, fire extinguishers, fire hydrants (unless otherwise maintained by a Local Government Agency), and other fire prevention equipment and/or facilities located on or servicing/protecting the Corporation Property, and other central services, pipes, ducts, flues, chutes, conduits, wires, exterior lighting and other utility installations wherever located (except all utility lines, installations and/or outlets thereof when located within or exclusively serving one Condominium Unit, including the internal and external telephone wiring designed to exclusively serve a Condominium Unit)]; private entryway, drives, aisles, guest parking areas, and related street Improvements in the Project (including, without limitation, asphalt, striping, stamped asphalt, decorative and enhanced paving, curbs, gutters, street signs, fire lane markings and signs, no parking and other traffic control signs, streetlights, etc.); portions of the private storm drainage facilities for the Project
described and/or depicted as maintained by the Corporation on an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., storm drain inlets, catch basins, storm drain pipes, modular wetland systems, and other BMPs and/or devices originally required by the City for the Project - see Exhibit "D" attached hereto and incorporated by reference); portions of certain walls, fences, and gates in the Project described and/or depicted as maintained by the Corporation on an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., see Exhibit "H" attached hereto); portions of the private sewer lines and facilities described and/or .-29130.FCM 101521 -49-
depicted as maintained by the Corporation on an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., see Exhibit "I" attached hereto and incorporated by this reference - specifically excluding any sewer lateral that exclusively serves a Condominium); portions of the private water lines and facilities described and/or depicted as maintained by the Corporation on an Exhibit to this
Declaration and/or a recorded Notice of Annexation (e.g., see Exhibit "J" attached hereto and incorporated by this reference - specifically excluding any water lateral that exclusively serves a Condominium; however, unless maintained by the water provider, master water meters and any water submeters shall be maintained by the Corporation); common recreational facilities (e.g., outdoor furniture, trellis/arbor, bicycle racks, etc.); clustered mailbox structures (excluding the individual mailbox of each Owner and the hinges, keys, and lock thereof, which shall be maintained by the Owner); common irrigation equipment; common exterior lighting (e.g., lighting that is not controlled by a switch within an Owner’s Condominium); Project monuments, signs and directories; landscaping and irrigation Improvements located on the Corporation Property, including the landscaping and irrigation Improvements within the Project described and/or depicted as maintained by the Corporation an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., see Exhibit "K" attached hereto and
incorporated by this reference), but excluding landscaping and Improvements located within any Exclusive Use Corporation Property (e.g., deck, patio, etc.); and landscaping,
irrigation Improvements. Not all of the Improvements and property described above may be included in Phase 1 of the Project, and the Corporation shall have no obligation to maintain any particular Improvement constituting Corporation Property in a Phase until the annexation of the Phase into the Project and levy of Assessments by the Corporation for the maintenance of the Corporation Property in such Phase. In the event any maintenance or repairs to the Corporation Property are required due to the willful or negligent acts or omissions of an Owner or Owners, the Corporation shall levy the cost of such maintenance and repair as a Compliance Assessment against the responsible Owner(s);
(f) Comply with all Best Management Practices
applicable to the Project (e.g., as specified in the Water Quality Management Plans);
(g) Pay all real and personal property taxes and
Assessments which the Corporation is required to pay pursuant to the terms and provisions of this Declaration or by law, unless separately assessed to Owners; provided, however, that it shall be the obligation of each Owner to pay his or her respective share of the tax assessment levied on the Project prior to separate assessments by the Tax Assessor pursuant to .-29130.FCM 101521 -50-
the applicable provisions of the California Revenue and Taxation Code;
(h) Contract for any other material, supplies,
furniture, labor, services, maintenance, repairs, structural alterations and insurance which the Corporation is required to pay for pursuant to the terms and provisions of this Declaration or by law; (i) Except as required by law, cause financial
statements and a reserve funding plan (e.g., consistent with the requirements of California Civil Code Section 5300 et seq. and FHLMC, FNMA, GNMA and VA/FHA) for the Corporation to be regularly prepared and copies distributed to each Member of the Corporation, regardless of the number of Members or the amount of assets of the Corporation, which financial
statements and reserve funding plan shall separately account for the collection and use of funds received for reserves for any funds received for the Variable Assessment Component of the Regular Assessments, Compliance Assessments, Special Assessments, and Special Benefit Assessments as follows:
(1) A pro forma operating statement
(budget) for the immediately preceding fiscal year
shall be distributed within the time period specified by statute prior to the beginning of the fiscal year (e.g., not less than 30 days nor more
than 90 days prior to the beginning of the fiscal
year), and shall contain the following information:
i) An itemized estimate of the
Corporation’s revenue and expenses (including,
without limitation, adequate funding for insurance
coverage and deductibles), determined on an accrual
basis;
ii) A summary, printed in bold type, of
the current status of the Corporation’s reserves,
based upon the most recent review or study conducted pursuant to California Civil Code Section 5500 et seq. ("Study"), as may be amended, from time to
time, and prepared in accordance with all
requirements of law (e.g., Civil Code Section 5300,
5570);
iii) A statement prepared in accordance
with all requirements of law (e.g., Civil Code
Section 5300, 5200) as to all of the following:
a) Whether the Board has
determined to defer or not undertake repairs
or replacement of any major component with a
.-29130.FCM 101521 -51-
remaining life of 30 years or less, including
a justification for the deferral or decision
not to undertake the repairs or replacement.
b) Whether the Board, consistent
with the reserve funding plan adopted pursuant
to Civil Code Sections 5500 et seq., has
determined or anticipates that the levy of one
(1) or more Special Assessments will be
required to repair, replace or restore any
major component (e.g., Improvement to the
Corporation Property) or to provide adequate
reserves therefor. If so, the statement shall
also set out the estimated amount,
commencement date, and duration of the Special
Assessments;
c) The mechanism or mechanisms by
which the Board will fund reserves to repair
or replace major components, including assessments, borrowing, use of other assets, deferral of selected replacement of repairs, or alternative mechanisms; and
d) Whether the Corporation has any
outstanding loans with an original term of
more than one year, including the payee,
interest rate, amount outstanding, annual
payment, and when the loan is scheduled to be
retired.
iv) A general statement prepared in
accordance with all requirements of law (e.g., Civil Code Section 5300, 5200) setting forth the procedures utilized by the Corporation to calculate
and establish reserves to defray the costs of
future repairs, replacements or additions to the
Corporation Property Improvements;
v) A statement as to whether the Board
has determined or anticipates that the levy of one
(1) or more Special Assessments will be required to
repair, replace or restore any major Improvements
to the Corporation Property, or to provide adequate
reserves therefor; and
vi) A summary of the reserve funding
plan (including the Cost Center) adopted by the
Board in accordance with Civil Code Section 5300 et
seq.. The summary shall include notice to the
Owners that the full reserve study plan is
available upon request, and the Corporation shall
.-29130.FCM 101521 -52-
provide the full reserve study plan to any Owner
upon request.
Notwithstanding the foregoing, in lieu of
distributing the pro forma budget required hereinabove, the Board may elect to distribute a summary of the pro
forma budget to all Members with a written notice, in at least 10-point bold type on the front page, that the pro forma budget is available at the business office of the Corporation, or at another suitable location within the Project, and that copies will be provided upon request
and at the expense of the Corporation. If any Member
requests that a copy of the pro forma budget required
herein be mailed to said Member, the Corporation shall
provide the copy to the Member by first-class mail at the expense of the Corporation, and mailed within five (5)
days of the receipt of said request;
(2) A balance sheet as of an accounting date
which is the last day of the month closest in time to six (6) months from the date of closing for the first sale of a Condominium, and an operating statement for the period from the date of the first closing to the said accounting date, shall be distributed within sixty (60) days after the accounting date;
(3) An annual report consisting of the following shall be distributed within one hundred twenty (120) days after the close of the fiscal year:
i) A balance sheet as of the last day
of the Corporation’s fiscal year;
ii) An operating (income) statement for
the fiscal year;
iii) A statement of changes in financial
position for the fiscal year; and
iv) Information, if any, required to be
reported pursuant to Sections 8322 and 5300 of the
California Corporations and Civil Codes, respectively, as same may be amended from time to time.
This annual report shall ordinarily be prepared
by a licensee of the California Board of Accountancy, in accordance with generally accepted accounting principles, for any fiscal year in which the gross income of the
Corporation exceeds Seventy-Five Thousand Dollars
($75,000.00). However, if for any reason the report is
not prepared by a licensee of the California Board of
Accountancy, said report shall be accompanied by a
.-29130.FCM 101521 -53-
certificate from an authorized officer of the Corporation that the statements were prepared without audit from the books and records of the Corporation;
(4) A statement of the Corporation’s policies
and practices in enforcing its remedies against Members for nonpayment of Assessments, as set forth in the
Article herein entitled "Effect of Nonpayment of Assessments: Remedies of the Corporation," which shall be distributed within the time period required by statute prior to the beginning of the fiscal year (e.g., not less than 30 days nor more than 90 days prior to the beginning of the fiscal year); and
(5) A summary of the Corporation’s general
liability insurance policy, earthquake and flood insurance policy, if one or more have been obtained, and liability coverage policy for the Board, which includes statements and information required under California
Civil Code Section 5300(b)(9), as same may be amended
from time to time. Currently, such items of disclosure
include the following: (1) the name of the insurer; (2) the type of insurance; (3) the policy limits of the
insurance; and (4) the insurance deductibles.
The Corporation shall, as soon as reasonably
practical, notify its Members by first-class mail if any of the policies described in the paragraph above have
lapsed, been canceled, and are not immediately renewed, restored or replaced, or if there is a significant
change, such as a reduction in coverage or limits, or an increase in the deductible for any of those policies. If the Corporation receives any notice of nonrenewal of a
policy described in the paragraph above, the Corporation shall immediately notify its Members if replacement
coverage will not be in effect by the date the existing coverage will lapse. To the extent the information noted above is described within the respective insurance
policies, the Corporation may distribute such information to the Members and be in compliance with the disclosure requirements of the referenced Civil Code Section.
Notification regarding cancellation or policy renewals
must comply with Civil Code Section 5810, as same may be amended from time to time. Currently, the summary
distributed pursuant to the paragraph above shall
contain, in at least 10-point boldface type, the
following statement: "This summary of the association’s policies of insurance provides only certain information, as required by Section 3500 of the California Civil Code, and should not be considered a substitute for the
complete policy terms and conditions contained in the
actual policies of insurance. Any association member
.-29130.FCM 101521 -54-
may, upon request and provision of reasonable notice,
review the association’s insurance policies and, upon
request and payment of reasonable duplication charges,
obtain copies of those policies. Although the association maintains the policies of insurance specified in this summary, the association’s policies of insurance may not cover your property, including personal property or real property improvements to or around your dwelling, or personal injuries or other losses that occur within or
around your dwelling. Even if a loss is covered, you may nevertheless be responsible for paying all or a portion of any deductible that applies. Association members
should consult with their individual insurance broker or agent for appropriate additional coverage."
(j) As required by Civil Code Section 5500 (as the
same may be amended from time to time), the Board shall review on a monthly basis, or each Board member shall independently review and the Board shall ratify the Board member’s review on a monthly basis, the following:
i) A current reconciliation of the
Corporation’s operating accounts;
ii) A current reconciliation of the
Corporation’s reserve accounts;
iii) The current year’s actual operating
revenues and expenses compared to the current
year’s budget;
iv) The latest account statements
prepared by the financial institutions where the
Corporation maintains its operating and reserve
accounts;
v) An income and expense statement for
the Corporation’s operating and reserve accounts;
and
vi) The check register, monthly general
ledger, and delinquent assessment receivable
reports.
Withdrawal of funds from the Corporation’s reserve account shall require the signature of either: (i) two (2) members of the Board; or (ii) one (1) member of the Board and an officer of the Corporation who is not also a member of its Board. As used in this Section, "reserve account" means moneys that the Board has identified from its annual budget for use to defray the future repair or replacement of, or additions to, those major components of the Corporation Property which the
.-29130.FCM 101521 -55-
Corporation is obligated to repair or replace on a periodic basis, rather than on a regular annual basis. The Board shall not use any funds collected and budgeted as "reserve" moneys for any costs and/or expenses that are not related to repair and/or replacement costs for those elements of the Corporation Property that must be repaired and/or replaced on a periodic basis. Notwithstanding the foregoing, temporary transfer of funds may occur in compliance with Civil Code Section 5515, as may be amended from time to time. In the event reserve funds are temporarily transferred to pay for dispute resolution proceedings, the Board shall comply with the disclosure and notification requirements of Civil Code Section 5520, as may be amended from time to time. Notwithstanding any provision in this Declaration, as required by Civil Code Section 5502, transfers of greater than ten thousand dollars ($10,000.00) or five percent (5%) of the Corporation’s total combined reserve and operating account deposits, whichever is lower, shall not occur from the Corporation’s reserve or operating accounts without prior written Board approval.
(k) At least once every three (3) years, cause a
study of the reserve account requirements of the Project to be conducted if the current replacement value of the major components which the Corporation is obligated to repair, replace, restore or maintain is equal to or greater than onehalf (1/2) of the gross Corporation budget for any fiscal year of the Corporation. In connection with such study, the Board shall cause to be conducted, if required by law, a visual inspection of the accessible areas of the major components of the Corporation Property which the Corporation is obligated to repair, replace, restore, or maintain. The Board shall
consider and implement, as the Board determines appropriate, any necessary adjustments to the Board’s analysis of the reserve account requirements as a result of such review. The reserve study shall consider and include, at a minimum, the requirements set forth in Sections 5550-5560 of the California Civil Code, as the same shall be amended, from time to time.
If required by law, at least once every nine years cause a visual inspection by a licensed structural engineer or
architect of a random and statistically significant sample of exterior elevated elements for which the Corporation has maintenance or repair responsibility;
(l) Assume and pay out of the Assessments provided
for hereinbelow all costs and expenses incurred by the
Corporation in connection with the performance and execution of all of the aforesaid powers and duties, and any other powers and duties the Corporation may assume as provided for in Section 4 hereinbelow;
(m) Formulate, adopt and enforce such Rules and
Regulations as it may deem proper for the operation of the .-29130.FCM 101521 -56-
Corporation Property and as necessary to establish election procedures in compliance with California Civil Code Section 4340 et seq. and 5105, as more particularly described herein.
Notice of adoption of any such Rules and Regulations and of any change, amendment or repeal thereof, shall be given in writing to each Member and shall be on file in the principal office of the Corporation. If any conflict exists between such Rules and Regulations and this Declaration, this Declaration shall prevail;
(n) Enforce, abide by, pay or collect any amounts
due under, and otherwise comply with all applicable provisions of this Declaration, the Articles, By-Laws, the Limited Warranty, all Rules and Regulations of the Corporation and Architectural Review Committee, the Water Quality Management Plans, any agreement entered into by Declarant with any Local Government Agency or any utility provider relating to the Project (e.g., agreements for the provision of domestic water, fire water, reclaimed water, sewer, electricity, gas, etc., to the Project), unless otherwise specified in the agreement or an amendment to this Declaration, and all other documents pertaining to the ownership, use, management and control of the Project;
(o) Give notices in writing to FHLMC, FNMA, GNMA
and VA/FHA, and other lenders and investors participating in the financing of the sale of Condominiums in the Project, as required herein;
(p) Within ten (10) days of the mailing or delivery
of a written request from an Owner, provide said Owner with a copy of this Declaration and the By-Laws and the Articles for the Corporation, together with the pro forma budget, an insurance policy summary, a true statement in writing as to the amount of any delinquent Assessments, penalties, attorneys’ fees and other charges therein as provided by this Declaration or other Governing Documents as of the date of such request, the most recent financial statement, the
Corporation’s current Regular and Special Assessments, and any change in the Corporation’s current Assessments and fees which have been approved by the Board but have not become due and payable as of the date the disclosure is provided pursuant to this Section. The Board may impose a fee for providing the foregoing, but in no event shall the fee exceed the actual cost to prepare and reproduce the requested documents. In addition, the Board shall make available, as required by law, during normal working business hours, upon request under reasonable circumstance, to any prospective purchaser of a Condominium, any Owner of a Condominium, any first Mortgagee and the holder(s), insurer(s) and guarantor(s) of a first Mortgage of any Condominium, current copies of this Declaration, the Articles, the By-Laws, the Rules and Regulations .-29130.FCM 101521 -57-
governing the Condominium, a true statement, in writing, setting forth the amount of the Corporation’s current Regular and Special Assessments and fees, any Assessments, monetary fines and/or penalties levied upon the Member’s interest in the Project that are unpaid on the date of the statement, and information on late charges, interest and costs of collection which, as of the date of the statement, are or may be made a lien upon the Member’s interest in the Project, and all of the books, the membership register, including mailing addresses and telephone numbers, records and financing statements of the Corporation;
(q) Elect the officers of the Corporation and fill
any vacancies on the Board, except if such vacancy is created by the removal of a Director;
(r) Appoint the Members to the various Committees
formed by the Board [e.g., the Architectural Review Committee, etc.] as more particularly set forth herein or in the By-Laws; (s) Cause a summary of the provisions of Section
5925 et seq. of the California Civil Code, as same may be amended from time to time, regarding alternative dispute resolution prefiling requirements and which specifically reference Section 5925 et seq. of the Civil Code, to be prepared and distributed (as required by law, if at all) to each Member of the Corporation as specified in Civil Code Sections 5310 and 5965, as same may be amended from time to time. The annual policy statement prepared pursuant to
Section 5310 of the Civil Code shall also include a
description of the Corporation’s internal dispute resolution process, as required by Section 5920 of the Civil Code; (t) Adopt and provide a fair, reasonable and
expeditious procedure for resolving disputes between the Corporation and Members that complies with applicable law (e.g., Civil Code Section 5900 et seq.), which, if the Board so decides, may be the procedure set forth in Civil Code Section 5915;
(u) Comply as prohibited by law (e.g., Civil Code
Section 5986, etc.) with the provisions of California Civil Code Section 6000, as same may be amended from time to time, as provided hereinbelow;
(v) Cause a notice regarding "Assessments And
Foreclosure" to be prepared and annually distributed to each Member of the Corporation in accordance with California Civil Code Sections 5310 and 5730, as the same may be amended from time to time. Except as otherwise provided in California Civil Code Sections 5310 and 5730, as the same may be amended from time to time, the notice shall be printed in 12-point .-29130.FCM 101521 -58-
type and shall be distributed during the sixty (60) day period immediately preceding the beginning of the Corporation’s fiscal year;
(w) As required by applicable law [e.g., California
Civil Code Section 4765, as the same may be amended from time to time, or any successor statute], cause a notice of any requirements for Corporation approval of physical changes to Condominiums (e.g., Exclusive Use Corporation Property) or Corporation Property to be prepared and annually distributed to Members. The notice shall describe the types of changes that require Corporation approval and shall include a copy of the procedure used to review and approve or disapprove a proposed change;
(x) To prevent potential personal injuries and
property damage caused by inadvertent damage to underground utilities (e.g., underground water and sewer lines,
underground electrical facilities, etc.), develop and
implement a program to ensure that contractors or anyone else intending to dig or perform any kind of excavation work on behalf of the Corporation (including the installation or removal of landscaping or hardscape) call the Underground Service Alert (USA) aka "Dig Alert"), at "811", at least two (2) days before commencing such work so that local utility companies or other utility providers may mark the locations of their underground utility lines and pipelines; and
(y) On an annual basis (e.g., on or before January
1st of each calendar year) and whenever such information changes, provide the City’s Planning Division with a list of the names and addresses of the Corporation’s officers.
Section 4. Discretionary Powers. The Board, at its
option, may assume, perform and execute the following powers and duties for and on behalf of the Corporation:
(a) Retain such personnel (in addition to a
property manager or property management company) as the Corporation deems necessary and proper to assist in the operation of the Corporation and/or management of the
Corporation Property regardless of whether such other
personnel are employed directly by the Corporation or
otherwise;
(b) Remove or replace any Improvement that extends
into the Corporation Property under authority of an easement when access to a utility line underneath such Improvement is requested by any utility company; provided, however, that the cost shall be assessed against the Owner of the Condominium involved as a Compliance Assessment if said Owner caused the .-29130.FCM 101521 -59-
Improvement to be so placed in the Corporation Property without legal right to do so;
(c) Incur any liability or pay any costs or
expenses for a single Condominium or Owner thereof to keep such Condominium and/or Owner in compliance with this
Declaration and/or any Notice of Annexation; provided,
however, that in the event the Corporation does incur any such liability or pay any such costs or expenses, the amount thereof shall be specially assessed to the Owner of such Condominium as a Compliance Assessment; provided further, however, that nothing herein shall permit the Corporation to assess the Owners for any new Improvements to the Corporation Property, except as otherwise provided in this Declaration; (d) Subject to the limitations set forth in this
Article, contract for any other material, furniture, labor, services, maintenance, repairs, structural alterations or insurance, or pay any taxes or Assessments which, in the opinion of the Board, shall be necessary or proper for the operation of the Corporation Property, for the benefit of the Owners or for the enforcement of this Declaration;
(e) Enter into a maintenance or subsidy agreement
with Declarant, at Declarant’s sole discretion, to temporarily reduce the financial obligations of the Owners for Assessment; and
(f) Require the approval of a majority (51%) or
higher percentage of the Members (other than Declarant) before the Board decides to commence any legal proceeding against the Declarant or a party related to the Declarant (e.g., such as the "Declarant Parties" specified in Exhibit "G" to this Declaration) or incur any dispute resolution expenses,
including without limitation attorneys’ fees, relating to a construction defect Dispute.
Section 5. Delegation of Duties. In the event that
the Corporation shall delegate any or all of its duties, powers or functions to any person, corporation or firm to act as manager, neither the Corporation nor the members of its Board shall be liable for any omission or improper exercise by the manager of any such duty, power or function so delegated.
Section 6. Right of Entry for Emergency. The Board,
any person authorized by the Board, Declarant (so long as it owns an interest in the Project), or any Owner may enter any Condominium in the event of any emergency involving illness or potential danger to life or property. Such entry shall be made with as little inconvenience to the Owner as is practicable, and in the event that any damage shall be proximately caused by or result from said .-29130.FCM 101521 -60-
entry, the Corporation and/or Owner shall repair the same at its expense.
Section 7. Right of Entry for Repairs. Except as
otherwise provided herein, the Board, or any person authorized by the Board, shall have the right to enter, upon reasonable notice, any Condominium to effect necessary repairs which the Owner has failed to perform or which are necessary in connection with the repairs to the Corporation Property or an adjoining Condominium (e.g., Exclusive Use Corporation Property). Such entry shall be made with as little inconvenience to the Owner as is practicable, and in the event that any damage shall be proximately caused by or result from said entry, the Corporation shall repair the same at its expense.
Section 8. Limitations on Board Action. The Board
shall be prohibited from taking any of the following actions, except with the vote or written assent of a majority of the voting power of the Corporation and a majority of the votes residing in Members, other than the Declarant:
(a) Entering into a contract with a third person,
wherein the third person will furnish goods or services for the Corporation Property or the Corporation for a term longer than one (1) year, with the following exceptions:
(1) A management contract, the terms of which
have been approved by the Department of Veterans Affairs and the Federal Housing Administration (hereinafter
referred to as the "VA/FHA") and are consistent with
provisions herein;
(2) A contract with a public utility company
if the rates charged for the materials or services are
regulated by the Public Utilities Commission; provided, however, that the term of the contract shall not exceed the shortest term for which the supplier will contract at the regulated rate;
(3) Prepaid casualty and/or liability insurance policies of not to exceed three (3) years duration, provided that the policy permits for short-rate cancellation by the insured; (4) Agreements for cable television services
and equipment or satellite dish equipment and services of not to exceed five (5) years duration, provided that the lessor under the agreement is not an entity in which
Declarant has a direct or indirect interest of ten
percent (10%) or more; and
.-29130.FCM 101521 -61-
(5) Agreements for sale or lease of burglar
alarm and fire alarm equipment, installation and services of not to exceed five (5) years duration provided that
the supplier or suppliers are not entities in which the Declarant has a direct or indirect ownership interest of ten percent (10%) or more.
(b) Incurring aggregate expenditures for capital
Improvements to the Corporation Property in any fiscal year in excess of five percent (5%) of the budgeted gross expenses of the Corporation for that fiscal year;
(c) Selling during any fiscal year property of the
Corporation having an aggregate fair market value greater than five percent (5%) of the budgeted gross expenses of the Corporation for that fiscal year;
(d) Paying compensation to Directors or to officers
of the Corporation for services performed in the conduct of the Corporation’s business; provided, however, that the Board may cause a Director or officer to be reimbursed for expenses incurred in carrying on the business of the Corporation; (e) Filling a vacancy on the Board created by the
removal of a Director;
(f) Except as prohibited by law (e.g., Civil Code
Section 5986, etc.) or otherwise allowed under Section 6000 of the California Civil Code, as same may be amended from time to time, and subject to Exhibits "F" and "G" attached hereto (to the extent applicable), incurring dispute resolution expenses, including without limitation attorneys’ fees, where the Corporation initiates dispute resolution proceedings or is joined as a plaintiff in dispute resolution proceedings. Such approval shall not be necessary if the legal proceedings are initiated to (i) enforce the use restrictions contained herein, (ii) enforce the architectural control provisions contained herein; or (iii) collect any unpaid Assessments levied pursuant to this Declaration; or
(g) Amending or limiting the Corporation’s duties
and obligations (and benefits) with respect to the Limited Warranty.
Section 9. Licenses, Easements and Rights-of-Way. The
Board, for and on behalf of the Corporation, is authorized and empowered to grant such licenses, easements and rights-of-way for sewer lines, water lines, underground conduits, storm drains and other public utility purposes over those portions of the Corporation Property upon which no building or other structure has been erected as may be necessary and appropriate for the orderly maintenance, and preservation of the Corporation Property or for .-29130.FCM 101521 -62-
the preservation of the health, safety, convenience and welfare of the Owners. Such licenses, easements and rights-of-way may be granted at any time prior to twenty-one (21) years after the death of the individuals who have signed this Declaration and their issue who are in being as of the date hereof, and the right to grant such licenses, easements and rights-of-way is hereby expressly reserved.
Section 10. New Improvements. Except as otherwise
provided in this Declaration, and subject to the Article herein entitled "Architectural Review - Approval," the Corporation may construct new Improvements or additions to the Corporation Property or demolish existing Improvements, provided that in the case of any Improvement, addition or demolition involving a total expenditure in excess of five percent (5%) of the budgeted gross expenses of the Corporation for that fiscal year, the written consent or vote of the Owners in the Project as to the maximum total cost therefor shall first be obtained in accordance with the appropriate provisions herein, and provided that no Condominium shall be altered or damaged by any such demolition or construction without the consent of the Owner thereof. The Board shall levy a Special Assessment on all Owners in the Project for the cost of such work.
Notwithstanding the foregoing, if the new Improvements or the demolition of existing Improvements relates to Cost Center Improvements, only the vote or written consent of Owners representing a majority of Condominiums within such Cost Center need to be obtained, and the Board shall levy a Special Assessment solely on the Owners in such Cost Center for the cost of such work; likewise, if the new Improvements or the demolition of existing Improvements relates to Special Benefit Area Improvements, only the vote or written consent of Owners representing a majority of Condominiums within such Special Benefit Area need to be obtained, and the Board shall levy a Special Assessment solely on the Owners in the respective Special Benefit Area for the cost of such work.
Section 11. Corporation Rules and Regulations. The
Board shall also have the power to adopt, amend and repeal Rules and Regulations ("Rules and Regulations"), as it deems reasonable, that are not inconsistent with the provisions of this Declaration and that are subject to Civil Code Sections 4340 et seq. regarding "operating rules". The Rules and Regulations may include the establishment of a system of fines and penalties enforceable as Compliance Assessments. The Rules and Regulations shall govern such matters in furtherance of the purposes of the Corporation, including, without limitation, the use of the Corporation Property, signs, trash collection, minimum standards for maintenance of Condominiums consistent with such standards as may be set forth in this Declaration or adopted by the Architectural Review Committee, election procedures in compliance with California Civil Code Section 4340 et seq., and any other matter which is within the jurisdiction of the Corporation; provided, however, that the Rules and Regulations may not discriminate among Owners and shall not be inconsistent with this Declaration, the Articles or By-Laws. A copy .-29130.FCM 101521 -63-
of the Rules and Regulations as they may, from time to time, be adopted, amended or repealed, or a notice setting forth the adoption, amendment or repeal of specific portions of the Rules and Regulations, shall be delivered to each Owner. The Rules and Regulations shall have the same force and effect as if they were set forth in and were part of this Declaration, and shall be binding on the Owners and their successors in interest, whether or not actually received thereby. The Rules and Regulations, as adopted, amended or repealed, shall be available at the principal office of the Corporation to each Owner upon request. In the event of any conflict between any Rules and Regulations and any other provisions of this Declaration, or the Articles or By-Laws, the provisions of the Rules and Regulations shall be deemed to be superseded.
Section 12. Nonliability and Indemnification.
(a) General Limitation. Except as specifically
provided in this Declaration, or as required by law, no right, power or responsibility conferred on the Board or the Architectural Review Committee by this Declaration, the Articles or the By-Laws, shall be construed as a duty or obligation charged upon the Board, the Architectural Review Committee, any member of the Board or the Architectural Review Committee, or any other officer, employee or agent of the Corporation.
No such person shall be liable to any party (other than the Corporation or a party claiming in the name of the Corporation) for injuries or damage resulting from such person’s acts or omissions within what such person reasonably believed to be the scope of his Corporation duties ("Official Acts"), except to the extent that such injuries or damage result from such person’s willful or malicious misconduct. No such person shall be liable to the Corporation (or to any party claiming in the name of the Corporation) for injuries or damage
resulting from such person’s Official Acts, except to the extent that such injuries or damage result from such person’s negligence or willful or malicious misconduct;
(b) Personal Liability Limitation. No person who
suffers injury, including, but not limited to, bodily injury (including, without limitation, emotional distress or wrongful death) or property damage or loss as a result of the tortious act or omission of a volunteer Board member or volunteer Corporation officer shall recover damages from such Board member or officer if all the following conditions are satisfied:
(1) At the time the act or omission occurred,
the Board member or officer resided in the Project as
either a tenant or an Owner of two (2) or fewer
Condominiums;
.-29130.FCM 101521 -64-
(2) The act or omission was performed within
the scope of the Board member’s or officer’s Corporation duties;
(3) The act or omission was performed in good
faith;
(4) The act or omission was not willful,
wanton or grossly negligent; and
(5) The Corporation maintained and had in
effect at the time the act or omission occurred, and at the time a claim was made, one (1) or more policies of
insurance which included coverage for general liability for the Corporation and individual liability of officers and Directors of the Corporation for negligent acts or
omissions in such capacity, and both types of coverage
were in the amount of at least One Million Dollars
($1,000,000.00).
(c) Indemnification. The Corporation shall pay all
expenses incurred by, and satisfy any judgment or fine levied against, any person as a result of any action or threatened action against such person to impose liability on such person for his Official Acts, provided that:
(1) The Board determines that such person
acted in good faith and in the manner such person
reasonably believed to be in the best interests of the
Corporation; and
(2) In the case of an action or threatened
action by or in the name of the Corporation, the Board
determines that such person acted with such care,
including reasonable inquiry, as an ordinary prudent
person in a like position would use under similar
circumstances.
Any determination of the Board required under this
Section must be approved by a majority vote of a quorum consisting of Directors who are not parties to the action or threatened action giving rise to the indemnification. If the Board fails or refuses to make any such determination, such determination may be made by the vote or written consent of a majority of a quorum of the Members of the Corporation, provided that the person to be indemnified shall not be entitled to vote. The entitlement to indemnification hereunder shall inure to the benefit of the estate, executor, administrator, heirs or devisees of any person entitled to such indemnification.
.-29130.FCM 101521 -65-
ARTICLE VII
ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant, for each Condominium owned within the Project, hereby covenants, and each Owner of any Condominium, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Corporation: (a) Regular Assessments; (b) Special Assessments for capital Improvements and such other purposes set forth herein; (c) Compliance Assessments, including, but not limited to, costs incurred by the Corporation in the repair of damage to the Corporation Property for which such Owner was responsible and costs incurred by the Corporation in bringing such Owner and the Owner’s Condominium into compliance with this Declaration; (d) Special Benefit Assessments; and (e) such other Assessments as the Corporation may periodically establish. Except as otherwise provided by law, the Regular, Special and Special Benefit Assessments, together with interest, costs and reasonable attorneys’ fees for the collection thereof, shall be a charge on the land and shall be a continuing lien upon the Condominium against which each such Assessment is made. Each Regular Assessment, Special Assessment and Special Benefit Assessment, together with interest, costs and reasonable attorneys’ fees for the collection thereof, shall also be the personal obligation of the Owner of such property at the time when the Assessment fell due. Each Compliance Assessment levied against an Owner, together with interest, costs and reasonable attorneys’ fees for the collection thereof, shall be the personal obligation of the Owner of the property at the time of the Assessment. The personal obligation for delinquent Assessments shall not pass to an Owner’s successors in title unless expressly assumed by them.
Section 2. Purpose of Regular Assessments: Levy and
Collection. The Regular Assessments levied by the Corporation shall be used exclusively to promote the health, safety and welfare of all Owners in the Project, and to maintain and improve the Corporation Property. Pursuant to California Civil Code Section 5600, the Corporation, by and through the Board, shall levy and collect Assessments from the Owner of each Condominium in the Project in an amount sufficient to cover all of the Common Expenses incurred by the Corporation in connection with the performance and execution of its powers and duties set forth in this Declaration, the By-Laws and the Articles. In connection therewith, the Corporation shall not impose or collect Assessments, penalties or fees that exceed the amount reasonably necessary for the purpose or purposes for which they were levied. Regular Assessments may be collected on a monthly installment basis.
Section 3. Regular Assessments - Basis. Except for
that portion of the Regular Assessments attributable to Variable .-29130.FCM 101521 -66-
Expenses (i.e., the Variable Assessment Component), or the Cost Center Assessment Component (which shall be levied only against the Condominiums in the Cost Center) or as otherwise specified in this Declaration (e.g., with respect to variations in the General Assessment Component due to domestic water usage by each Condominium, Special Benefit Assessments, if any, which shall be levied only against the Condominiums in a Special Benefit Area, etc.), Regular Assessments payable to the Corporation shall be assessed equally against all Owners of Condominiums. Each Owner’s proportionate share of the Common Expenses for any fiscal year of the Corporation shall be a fraction, the numerator of which shall be the number of Condominiums owned by such Owner, and the denominator of which shall be the total number of Condominiums in the Project which are subject to Assessment. Until the first day of the fiscal year of the Corporation immediately following the first close of an escrow for the sale of a Condominium in the Project to an Owner, the Regular Assessment shall be as set forth in the Phase 1 budget reviewed by the DRE. Notwithstanding the commencement for payment of Regular Assessments, or any other provisions of this Declaration, Declarant and any other Owner of a Condominium which does not include a structural Improvement for human occupancy shall be exempt from the payment of that portion of any Assessment (e.g., Regular Assessment) which is for the purpose of defraying operating expenses and reserves directly attributable to the existence and/or use of such structural Improvements. This exemption shall include, but shall not necessarily be limited to, that portion of any Assessment attributable to roof replacement, exterior maintenance, exterior walkway and carport lighting, refuse disposal, cable television and domestic water, if any, supplied to Condominiums.
This exemption shall be in effect only until the earliest to occur of: (a) the recordation in the County Recorder’s Office of a Notice of Completion for the structural Improvements pursuant to California Civil Code Section 8182; (b) the occupation or use of the Condominium; or (c) the completion of all elements of the Condominium Building which the Corporation is obligated to maintain, if any. Declarant and any Owner shall also be exempted from the payment of that portion of any Assessment which is for the purpose of defraying expenses and reserves directly attributable to the existence and use of any Corporation Property facilities that are not complete at the time Assessments commence. This latter exemption shall only be in effect as to a particular Corporation Property facility until the earlier of: (a) the recordation in the County Recorder’s Office of a Notice of Completion for such Corporation Property facility pursuant to California Civil Code Section 8182; or (b) the placement into use of the particular Corporation Property facility. Subject to the limitations of California Civil Code Sections 5600-5650, as same may be amended, from time to time, from and after the first day of the fiscal year immediately following the conveyance of the first Condominium to an Owner, the Regular Assessment may be increased subject to the following limitations:
.-29130.FCM 101521 -67-
(a) Increases in Regular Assessments for any fiscal
year which are less than or equal to twenty percent (20%) above the Regular Assessment for the immediately preceding fiscal year may be approved by the Board, provided that the Board shall: (1) comply with the provisions set forth in Sections 5300 and 5605 of the California Civil Code, as same may be amended from time to time, with respect to the
distribution of the pro forma operating budget of the
Corporation for the forthcoming fiscal year; or (2) obtain the approval of Members, constituting a quorum, casting a majority of affirmative votes at a meeting or an election of the Corporation conducted in accordance with California Civil Code Section 5100 et seq. and, to the extent applicable, California Corporations Code Sections 7510, et seq., and Sections 7613, et seq. For purposes of this entire Section 3, a quorum means more than fifty percent (50%) of the Members of the
Corporation;
(b) Notwithstanding more restrictive limitations
placed on the Board by this Declaration or other Governing Documents, increases in Regular Assessments for any fiscal year which are more than twenty percent (20%) above Regular Assessments for the immediately preceding fiscal year may only be approved by the Board after the Board obtains the approval of a majority of a quorum of Members pursuant to Section 4070 of the California Civil Code;
(c) The Assessment increase limitation set forth in
Subsection (b) above does not apply to increases in Assessments related to emergency situations, which shall be deemed to include the following:
(1) Extraordinary expenses required by an
order by a court of competent jurisdiction;
(2) Extraordinary expenses for the maintenance
or repair of Corporation Property that is necessary to
remedy any dangerous condition in the Project that represents a threat of damage or injury to any person or property; and
(3) Extraordinary expenses necessary to repair
or maintain the Corporation Property that could not have been reasonably anticipated by the Board at the time the most recent Corporation budget was prepared. Notwithstanding the foregoing, in the event that the Board increases the Regular Assessment above twenty percent
(20%) pursuant to this Subparagraph (3), the Board shall distribute written notice concerning said increase to all Owners and a copy of a resolution adopted by the Board
setting forth: (i) the necessity of the extraordinary expenses; and (ii) the justification why said expenses were .-29130.FCM 101521 -68-
not reasonably foreseeable at the time the most recent
budget was prepared. For the purpose of calculating
whether an increase to Regular Assessments exceeds twenty percent (20%), the term "Regular Assessments" shall be
deemed to include the amount assessed against each
Condominium by the Corporation as a Regular Assessment, plus any amount paid by the Declarant as a subsidy or
pursuant to any subsidy or maintenance agreements, to the extent such subsidy payments offset an amount which would otherwise be paid by Owners as Regular Assessments.
Section 4. Special Assessments.
(a) In addition to the Regular Assessments
authorized above, and notwithstanding more restrictive
limitations placed on the Board by this Declaration or other Governing Documents, the Board may not impose Special
Assessments which in the aggregate exceed five percent (5%) of the budgeted gross expenses of the Corporation for that fiscal year without the approval of a majority of a quorum of Members pursuant to Section 4070 of the California Civil Code. The five percent (5%) limitation shall not apply to increases in Special Assessments related to an emergency situation, which shall be deemed to include the following:
(1) Extraordinary expenses required by an
order by a court of competent jurisdiction;
(2) Extraordinary expenses for the maintenance
or repair of Corporation Property that is necessary to
remedy any dangerous condition in the Project that represents a threat of damage or injury to any person or property; and
(3) Extraordinary expenses necessary to repair
or maintain the Corporation Property that could not have been reasonably anticipated by the Board at the time the most recent Corporation budget was prepared.
Notwithstanding the foregoing, in the event the Board
levies any Special Assessment that exceeds the five
percent (5%) limitation pursuant to this Section, the
Board shall distribute written notice concerning said
Special Assessment to all Owners and a copy of a
resolution adopted by the Board setting forth: (1) the
necessity of said Special Assessment; and (2) the justification why said Special Assessment was not reasonably foreseeable at the time the most recent budget was
prepared.
(b) A Special Assessment levied against Owners to
raise funds for the reconstruction or major repair of the Improvements in the Condominium Units which the Corporation is .-29130.FCM 101521 -69-
obligated to reconstruct or repair, if any, and the
Condominium Buildings in the Project shall be levied on the basis of the ratio of the square footage of the floor area of the Condominium Unit to be assessed, to the square footage of the floor area of all Condominium Units to be assessed.
Section 5. Compliance Assessments. A Compliance
Assessment may not be characterized nor treated as an assessment which may become a lien against the Owner’s Condominium enforceable by a sale in accordance with the provisions of Sections 2924, 2924(b) and 2924(c) of the Civil Code; provided, however, at such time as sales of Condominiums in the Project are no longer governed by regulations adopted by the DRE, the foregoing shall not apply to any Compliance Assessment imposed against an Owner consisting of a reasonable late payment penalty for delinquent Assessments and/or charges to reimburse the Corporation for the loss of interest and for costs reasonably incurred (including attorneys’ fees) in its efforts to collect delinquent Assessments or imposed for costs incurred by the Corporation in the repair of damage to Corporation Property and facilities for which the Member or the Member’s guests or tenants were responsible.
Section 6. Variable Assessment. A Variable Assessment
Component shall be assessed solely to the Owners of Condominiums to which the exclusive or disproportionate maintenance obligation of a Variable Element has been allocated. As a result of the varied square footage for Condominiums subject to the levy of a Variable Assessment Component, the levy of such cost will allocated on a pro-rata basis as set forth in the Corporation budget.
Section 7. Special Benefit Assessments. If not
otherwise allocated by the Corporation as a Variable Assessment Component of the Regular Assessment, or as a Cost Center Assessment Component of the Regular Assessment, Special Benefit Assessments shall mean and refer to a component of the Regular Assessment levied by the Corporation against an Owner and his respective Condominium to cover the expenses incurred by the Corporation in the operation, maintenance, repair, and/or funding of reserves as to a portion of the Project designated herein, by the Board, or in a Notice of Annexation as a "Special Benefit Area" or which is identified or referred to as an area or facility benefitting primarily the Owners within such a Special Benefit Area. These expenses shall be chargeable only to Owners in a Special Benefit Area, and may include, without limitation, the following:
(a) Maintenance, management, operation, repair and
replacement of particular Improvements within the Special Benefit Area;
(b) Utilities or services for the benefit of Owners
within the Special Benefit Area;
.-29130.FCM 101521 -70-
(c) Reasonable reserves, as deemed appropriate by
the Board, for repair and replacement of any Improvements maintained by the Corporation within a Special Benefit Area; and
(d) Unpaid Special Benefit Assessments.
The Corporation shall distribute to Owners within any
Special Benefit Area a pro forma operating statement and budget for the upcoming fiscal year which shall estimate the expenses attributable to the Special Benefit Area, and shall set forth the amount and payment schedule of the Special Benefit Assessments.
Notwithstanding more restrictive limitations placed on the Board by this Declaration or other Governing Documents, increases in Special Benefit Assessments for any fiscal year which are more than twenty percent (20%) above Special Benefit Assessments for the immediately preceding fiscal year may only be approved by the Board after the Board obtains the approval of a majority of a quorum of Members, pursuant to Section 4070 of the California Civil Code. For purposes of this Section, a quorum means Owners representing more than fifty percent (50%) of the voting power of the Owners of the Condominiums affected by the Special Benefit Assessment. The Assessment increase limitation set forth hereinabove does not apply to increases in Special Benefit Assessments related to emergency situations that could not have been reasonably anticipated by the Board at the time the most recent Corporation budget was prepared which determined the amount of the Special Benefit Assessments.
Section 8. Date of Commencement of Regular Assessments: Due Dates. Subject to the terms of any maintenance and/or subsidy agreement entered into by the Corporation and Declarant, the Regular Assessments provided for herein shall commence in each Phase on the first day of the first month following the first close of escrow for the sale of a Condominium in such Phase, or on the first day of the first month following the first occupancy of a Condominium in such Phase pursuant to a rental or lease agreement with Declarant, or its authorized agents, whichever occurs first.
Except as otherwise provided in this Article, the first Regular Assessments shall be adjusted according to the number of months remaining in the fiscal year as set forth in the By-Laws. The Board shall fix the amount of the Regular Assessment against each Condominium at least thirty (30) days in advance of each Regular Assessment period. Written notice of the Regular Assessment shall be sent to every Owner subject thereto at least thirty (30) days in advance of each Assessment period. The due dates shall be established by the Board. Notwithstanding any other provisions of this Declaration, until the earlier to occur of: (a) the recordation in the County Recorder’s Office of a Notice of Completion of an Improvement to the Corporation Property pursuant to California Civil Code Section 8182; or (b) the placement into use of the Corporation Property, each Owner (including Declarant) may be declared by the Board to be exempt from paying that portion of the .-29130.FCM 101521 -71-
Regular Assessment which is directly attributable to expenses and reserves to be incurred by the Corporation in the maintenance, operation and repair of such Corporation Property.
Section 9. Collection of Assessments. Except as otherwise provided herein (e.g., with respect to variations in the General Assessment Component due to domestic water usage by each Condominium, Special Benefit Assessments, if any, which shall be levied only against the Condominiums in a Special Benefit Area, provisions regarding the Cost Center Assessment component, etc.) or in any subsequent Notice of Annexation, Regular and Special Assessments shall be levied at a uniform rate for all Condominiums and may be collected on a monthly basis. If any installment of a Regular Assessment is less than the amount assessed and the payment does not specify the Corporation funds or fund into which it should be deposited, the receipt by the Corporation from that Member shall be credited in order of priority first to the operating fund, until that portion of the Regular Assessment has been satisfied, and second to the reserve fund. Compliance Assessments and Special Benefit Assessments shall be due thirty (30) days after such Assessment has been levied unless otherwise determined by the Board in a manner consistent with Civil Code Section 5600 et seq., as may be amended from time to time.
Section 10. Notice of Increase in Assessments. The
Board shall provide to the Owners, by first class mail to the address on file with the Corporation, notice of any increase in Regular, Special, and/or Special Benefit Assessments not less than thirty (30) nor more than sixty (60) days prior to such increase becoming due.
Section 11. Cost Center Assessment Component. A Cost
Center Assessment Component shall be assessed, as part of the Regular Assessment, solely to the Owners of Condominiums in the Cost Center to which the Cost Center Assessment Component applies.
Funds collected in payment of the Cost Center Assessment Component (including reserves) shall be used solely for the purposes set forth in the Corporation’s Cost Center Budget; provided, however, that the Board may authorize the temporary transfer of such funds for the payment of the Corporation’s short-term cash flow requirements on the same terms and conditions set forth in Civil Code Section 5515-5520, as amended (e.g., including terms and provisions for repayment, etc.). The Corporation shall, by acceptable accounting practices, take appropriate measures to ensure that all funds collected in payment of the Cost Center Assessment Component (including reserves) are not commingled with the general funds of the Corporation. As set forth in the Article of this Declaration entitled "Powers and Duties of the
Corporation," the financial statements and reserve funding plan to be prepared and distributed to each Member of the Corporation shall separately account for the collection and use of all funds received .-29130.FCM 101521 -72-
in payment of the Cost Center Assessment Component (including reserves).
Section 12. Certification of Payment. The Corporation
shall, upon demand and for a reasonable charge, furnish a certificate signed by an officer or agent of the Corporation setting forth whether the Assessments on a specified Condominium have been paid. If a certificate states that Assessments have been paid, such certificate shall be conclusive evidence of such payment.
Section 13. Delivery by Owner. Each Owner of a
Condominium shall, as soon as practicable prior to the transfer of title to the Condominium or the execution of a real property sales contract, as defined in California Civil Code, Section 2985, or as may be amended, from time to time, give to the prospective purchaser a copy of this Declaration and copies of the By-Laws and Articles of the Corporation, and a true statement, in writing, from the Board as to the amount of the Corporation’s current Regular and Special Assessments and fees, as well as any delinquent Assessments and information relating to penalties, attorneys’ fees and other charges authorized by this Declaration on the Condominiums as of the date the statement is issued, and any change in the Corporation’s current Assessments and fees which have been approved by the Board but have not become due and payable as of the date disclosure is provided pursuant to this Section.
Section 14. Delivery by Declarant. In accordance with
applicable legal requirements, within ninety (90) days following the first close of escrow for the sale of a Condominium in the Project, or as soon as reasonably obtainable, the Declarant shall provide the Corporation with copies of (1) the recorded map of Tract No. 83178; (2) Corporation Property grant and/or easement deeds; (3) this Declaration and any recorded Notices of Annexation; (4) filed Articles of Incorporation and all amendments thereto; (5) the Corporation’s By-Laws and all amendments thereto; (6) Rules and Regulations and/or Architectural Guidelines adopted by the Board (if any); (7) the plans approved by the City for the construction or improvement of facilities that the Corporation is obligated to maintain or repair (provided, however, that the plans need not be as-built plans and may bear appropriate restrictions on their commercial exploitation or use and may contain appropriate disclaimers regarding their accuracy); (8) notice of completion certificates for Corporation Property, if any; (9) any bond or other security device in which the Corporation is named as a beneficiary, if any; (10) warranties for Corporation Property equipment, fixtures, or Improvements, if any; (11) insurance policies obtained for the benefit of the Corporation, the Board, or the Corporation Property; (12) any lease or contract to which the Corporation is a party; (13) the membership register, including mailing addresses and telephone numbers, books of account and minutes of meetings of the Members, Board, and any committees of the Corporation; and (14) any instrument referred to in Section .-29130.FCM 101521 -73-
11018.6(d) of the California Business & Professions Code but not described above which establishes or defines the common, mutual or reciprocal rights or responsibilities of Members of the Corporation.
Section 15. Reserves. The Regular Assessments shall
include reasonable amounts, as determined by the Board, collected as reserves for the future periodic maintenance, repair and replacement of all or a portion of the Corporation Property or any such other purpose determined by the Board. All amounts collected as reserves shall be deposited by the Board in a separate bank account for the purposes for which they were collected, and are to be segregated from and not commingled with any other funds of the Corporation. The expenditure of such funds shall be limited to the repair and replacement of those elements of the Corporation Property which must be repaired or replaced according to a reserve study as permitted by Section 5510 et seq. of the California Civil Code, as same may be amended from time to time.
Section 16. Offsets and Waiver Prohibited. No Owner
may waive or otherwise avoid liability for the Assessments provided for herein for any reason whatsoever, including, but not limited to, non-use of the Corporation Property or abandonment of the Owner’s Condominium, nor shall any Owner be entitled to any offset against any Assessment provided for herein for any reason whatsoever, including, but not limited to, any expenditure made by such Owner for or on behalf of the Corporation.
Section 17. Exempt Property. The following property
subject to this Declaration shall be exempt from the Assessments herein:
(a) All property dedicated to and accepted by any
public authority;
(b) All property owned by a charitable or nonprofit
organization exempt from taxation by the laws of the State of California. However, no land or Improvements devoted to dwelling use shall be exempt from said Assessment; and
(c) All Corporation Property owned in fee by the
Corporation.
Section 18. Sub-metering of Water for Condominiums.
It is currently anticipated that there will be master water meters serving the Condominium Buildings in the Project and that submeters will be installed to measure the amount of water used by each Condominium. Each Owner of a Condominium shall be obligated to reimburse the Corporation in the amounts reasonably billed by the Corporation, or any private meter reading service retained by the Corporation, for the cost of the water and sewer services supplied to the Owner’s Condominium based on the reading from the submeter .-29130.FCM 101521 -74-
which monitors water consumption from the Owner’s Condominium. In billing each Owner, the Corporation shall utilize water consumption information from the submeter and the billing information which is provided by the supplier of water and sewer services. Should the supplier of such services charge penalties for excessive water consumption or should the supplier otherwise charge different rates for different levels of consumption, the Corporation may in any reasonable manner utilize such information in its allocation and determination of reimbursement amounts pursuant to this Section.
The Corporation shall have the right to enter into an
agreement with a private meter reading service to (a) read the submeter, (b) prepare and send the bills and (c) collect sums billed to each Owner on behalf of the Corporation. Alternatively, the Corporation may itself do any such billing activities for its reimbursement of amounts applicable to each Condominium. In no event shall the charge for reimbursement for water or sewer services be considered part of the Regular Assessments in calculating any increases in Assessments. The reimbursement amounts so billed (whether billed by the Corporation or a private water metering service) shall be the personal obligation of the person(s) who owned the Condominium during the period of time the water being billed for was supplied to the Condominium. No Owner shall interfere with the reading of such submeter nor in any manner change or disconnect such sub-meter. The Corporation is hereby granted an easement over the Condominiums and Corporation Property as reasonably necessary for it or its agents and contractors to read, repair, realign or replace such submeter, wherever located.
The Corporation shall have the right to require each
Owner to establish an impound account with the Corporation or with the private meter reading service in order to provide a deposit from which the Owner’s water bill can be paid. The amount of such impound account shall not exceed the Board’s good faith estimate of the sums to be billed to the Owner for two (2) months’ service; however, the Board shall have the right to require an Owner to increase the deposit up to a sum equal to the Board’s good faith estimate of the sums to be billed to the Owner for six (6) month’s service in the event Board reasonably determines the increased deposit would be prudent given the Owner’s past payment history.
ARTICLE VIII
EFFECT OF NONPAYMENT OF ASSESSMENTS:
REMEDIES OF THE CORPORATION
Section 1. Effect of Nonpayment of Assessments: Remedies of the Corporation. Any installment of a Regular, Special, Special Benefit, or Compliance Assessment not paid within fifteen (15) days after it is due and payable, shall be deemed delinquent and the Owner shall be required to pay: (a) reasonable costs of .-29130.FCM 101521 -75-
collection, including reasonable attorneys’ fees; (b) a reasonable late charge not exceeding ten percent (10%) of the delinquent Assessment or Ten Dollars ($10.00), whichever is greater, or as may, from time to time, be established by the Board in accordance with California law; and (c) interest on all sums imposed under this Section at an annual percentage rate not to exceed twelve percent (12%), commencing thirty (30) days after the Assessment was due. The Corporation’s acceptance of a partial payment of an assessment installment or any costs or attorneys’ fees attributable thereto does not waive the Corporation’s right to demand and receive full payments thereafter. Payments for Assessments shall first be applied to the principal owed for the Assessments and only after such principal amount is paid in full, shall such payments be applied to interest or collection expenses for such Assessments.
If requested by an Owner, the Corporation shall provide the Owner with a receipt of payment of Assessments, indicating the date of the Owner’s payment of Assessments and the person who received such payment on behalf of the Corporation. The Corporation shall establish a mailing address for the overnight payment of Assessments. The Board, for and on behalf of the Corporation, may commence legal action against the Owner personally obligated to pay the same, or, in the case of a Regular, Special or Special Benefit Assessment, may foreclose the lien against the Owner’s Condominium.
Such lien may also be foreclosed by a power of sale or other nonjudicial procedure provided for by the laws of the State of California. In furtherance thereof, each Owner hereby vests in the Corporation, its successors or assigns, the right and power to bring all actions at law or to pursue lien foreclosure against any Owner for purposes of collecting such Delinquent Assessments. To the extent permitted by law, each Owner waives, with respect to the extent of any liens created pursuant to this Article, the benefit of any homestead or exemption laws of California in effect at the time any Assessment, or installment thereof becomes delinquent or any lien is imposed.
Section 2. Notice of Delinquent Assessments. No action shall be brought to foreclose a lien for delinquent Assessments, or to proceed under the power of sale herein, unless the Corporation complies with all applicable provisions of law (e.g., California Civil Code Section 5650 et seq., as the same may be amended from time to time, and provisions of California Civil Code Section 2924, 2924(b), and 2924(c), as may be amended from time to time).
Section 3. Foreclosure Sale. Any foreclosure sale
provided for above is to be conducted by the Board, its attorney or other persons authorized by the Board in accordance with all applicable provisions of law (e.g., California Civil Code Sections 2924, 2924a, 2924b and 2924c, as same may be amended, from time to time), applicable to the exercise of powers of sale in Mortgages and deeds of trust, or in any other manner permitted by law. The Corporation, through duly authorized agents, shall have the power .-29130.FCM 101521 -76-
to bid on a Condominium at a foreclosure sale, and to acquire, hold, lease, mortgage and convey the same. Any Owner, by acceptance of a deed for the Owner’s Condominium, hereby expressly waives any objection to the enforcement and foreclosure of the lien in this manner.
Section 4. Curing of Default. Upon the timely curing
of any default for which a Notice of Delinquent Assessments or lien was filed by the Corporation, the officers thereof are hereby authorized to file or record, as the case may be, an appropriate release of such Notice upon payment by the defaulting Owner of a reasonable fee to be determined by the Corporation to cover the costs of preparing and filing or recording such release.
Section 5. Appointment of Receiver. In addition to
the foreclosure and other remedies of the Corporation provided herein or in applicable law, each Owner, by acceptance of a deed to a Condominium, conveys to the Corporation all of such Owner’s right, title and interest in all rents, issues and profits derived from and appurtenant to such Condominium, subject to the right of the Corporation to collect and apply such rents, issues and profits to any delinquent Assessments owed by such Owner, reserving to the Owner the right, before any default by the Owner in the payment of Assessments, to collect and retain such rents, issues and profit as they may become due and payable. Upon any default in the payment of Assessments by the Owner, the Corporation may, on the expiration of thirty (30) days following delivery to the Owner of a "Notice of Delinquent Assessment" described in this Declaration, either in person, by agent or by receiver to be appointed in court, and without regard to the adequacy of any security for the indebtedness secured by the lien described in this Declaration, (a) enter in or on and take possession of the Condominium or any part thereof, (b) in the Corporation’s name sue for otherwise collect such rents, issues and profits, including those past due and unpaid, and (c) apply the same, less allowable expenses of operation, to any delinquencies of the Owner, and in such order as the Corporation may determine. The entering upon and taking possession of the Condominium, the collection of rents, issues and profits, and the application thereof, shall not cure or waive any default or notice of default under this Declaration or invalidate any act done pursuant to such notice.
Section 6. Cumulative Remedies. The Corporation’s
remedies for nonpayment of Assessments, including, but not limited to, an action to recover a money judgment, Assessment lien and right of foreclosure and sale, and appointment of a receiver, are cumulative and in addition to and not in substitution of any other rights and remedies which the Corporation and its assigns may have hereunder or at law.
Section 7. Mortgagee Protection. Notwithstanding all
other provisions hereof, no lien created hereunder, nor any breach .-29130.FCM 101521 -77-
of the terms and provisions of this Declaration, nor the enforcement of any term or provision hereof, shall defeat or render invalid the rights of any Mortgagee under any recorded Mortgage or deed of trust upon a Condominium made in good faith and for value; provided, that after such Mortgagee or other person or entity obtains title to such Condominium by judicial or nonjudicial foreclosure, such Condominium shall remain subject to this Declaration and the payment of Assessments which fall due subsequent to the date of taking title.
ARTICLE IX
USE RESTRICTIONS
Unless otherwise prohibited by applicable law, the
Condominiums and Corporation Property shall be occupied and used only as set forth below.
Section 1. Private Residential Dwelling. Except as
otherwise provided in this Declaration or applicable law (e.g., provisions of California Civil Code Section 4751 allowing accessory dwelling units, etc.), each Condominium shall be used for residential purposes (i.e., single family dwelling purposes), except such temporary uses as shall be permitted by Declarant while the Project is being developed and Condominiums are being sold by Declarant; provided, however, that Declarant reserves unto itself, and its successors and assigns, together with the right to grant and transfer all or a portion of the same, for so long as Declarant owns any interest in the Property and/or the Annexation Property, and is entitled to annex Annexation Property to the Project, the right to carry on normal sales activity on the Project, including the operation of models, sales office, design center and parking area, provided Declarant shall not unreasonably interfere with any other Owner’s use of the Corporation Property.
Section 2. Corporation Property Use. Use of the
Corporation Property shall be subject to the provisions of this Declaration, the Rules and Regulations, and any additional limitations imposed by any other Governing Documents, and to any additional limitations imposed by the Corporation or Board or any governmental agency exercising jurisdiction over the Project.
Section 3. Conduct Affecting Insurance. Nothing shall
be done or kept in any Condominium or in the Corporation Property which will increase the rate of insurance on the Corporation Property without the approval of the Corporation. No Owner shall permit anything to be done or kept in the Owner’s Condominium or in the Corporation Property which will result in the cancellation of insurance on the Corporation Property or which would be in violation of any law. If, by reason of the occupancy or use of said premises by the Owner, the rate of insurance to the Corporation .-29130.FCM 101521 -78-
Property shall be increased, the Owner shall become personally liable for the additional insurance premiums.
Section 4. Liability for Damage. Each Owner shall be
liable to the Corporation, pursuant to the laws of the State of California, for any and all costs and expenses which may be incurred by the Corporation to repair any damage to the Corporation Property which be sustained by reason of the negligence or willful misconduct of said Owner or of his family, tenants, lessees or contract purchasers, or their respective guests or invitees, whether minor or adult. After approval by a majority of the Board, any such costs and expenses shall be levied by the Board as a Compliance Assessment against such Owner’s Condominium.
Section 5. Signs. Subject to Civil Code Sections
712, 713, 1940.45, 4705 and 4710, and California Government Code Section 434.5, as same may be amended from time to time (which may allow for other signs in addition to those set forth in this Section), no sign, advertising device or other display of any kind (including Project entrance signs) shall be displayed in the Project or on any public street abutting the Project except for the following signs:
(a) entry monuments, community identification
signs, address directory boards or maps, traffic or parking control signs maintained by the Corporation (including, without limitation, "NO PARKING - FIRE LANE" signs and
markings), and other signs required by the City in connection with the development of the Project;
(b) for each Condominium, one (1) nameplate or
similar Owner name or address identification sign which complies with the Architectural Review Committee rules; (c) for each Condominium, one (1) sign advising of
the existence of security services protecting a Condominium which complies with the Architectural Review Committee rules; (d) for each Condominium, one (1) sign advertising
the Condominium for sale or lease that complies with the following requirements:
(1) the sign is not larger than such signs
commonly utilized for similar purposes by a real estate company licensed to conduct business in the State of
California;
(2) the sign is attached to the ground by a
conventional, single vertical stake which does not exceed normal size standards for signs commonly utilized for
similar purposes by a real estate company licensed to
conduct business in the State of California; and
.-29130.FCM 101521 -79-
(3) the top of the sign is not taller than
such signs commonly utilized for similar purposes by a
real estate company licensed to conduct business in the State of California; and
(e) other signs or displays authorized by the
Architectural Review Committee and the City’s Sign Ordinance.
Section 6. Maintenance of Animals. No animals of any
kind shall be raised, bred or kept in any Condominium or in the Corporation Property, except that common domesticated dogs, cats, birds or other household pets (other than small household pets such as fish), may be kept in each Condominium in reasonable numbers; provided, however, that no animal shall be kept, bred or maintained for any commercial purpose and shall not exceed any weight limitations, if any, established by the Board. As used in this Declaration, "reasonable numbers" shall ordinarily mean two (2) total pets (excluding small household pets such as birds and fish) per Condominium; however, the Board may determine that a reasonable number in any instance may be more or less than two (2). Each Owner shall be responsible for cleaning up any excrement or other unclean or unsanitary condition caused by said animal in the Project. While walking or exercising an animal in the Project, the owner thereof shall, at all times, have readily available means to clean up any excrement or other unclean or unsanitary conditions caused by said animal. The Corporation, upon the approval of twothirds (2/3) of the Board, shall have the right to prohibit maintenance of any animal within the Project which constitutes a private nuisance to any other person. Every person bringing an animal upon or keeping an animal in the Project shall be liable pursuant to the laws of the State of California to each and all persons for any injury or damage to persons or property caused by such animal. All pets belonging to Owners, tenants, lessees or guests must be kept within an enclosed area or stable or on a leash or tether being held by a person capable of controlling the animal.
Section 7. Quiet Enjoyment. No Owner shall permit or
suffer anything to be done or kept upon such Owner’s Condominium which will obstruct or interfere with the rights of quiet enjoyment of the other occupants, or annoy them by unreasonable noises (e.g., inappropriate use of horns) or otherwise, nor will any Owner commit or permit any nuisance on the premises or commit or suffer any immoral or illegal act to be committed thereon. Notwithstanding the foregoing, for as long as Declarant owns an interest in the Project and the Annexation Property, the Declarant’s efforts in selling the Condominiums may interfere with the Owners’ quiet enjoyment of the Condominiums. Each Owner acknowledges the foregoing and waives any claims against the Declarant for nuisance due to any activity related to constructing, selling or marketing the Condominiums. Each Owner shall comply with all of the requirements of the Local Government Agency responsible for health (e.g., commonly referred to as the Board of Health) and of all .-29130.FCM 101521 -80-
other governmental authorities with respect to said premises, and shall remove all rubbish, trash and garbage from the Owner’s Condominium. Except as otherwise provided in the Rules and Regulations or expressly prohibited by Civil Code Section 4753, all clotheslines, refuse containers, woodpiles, storage boxes, tools and equipment shall be prohibited from any Condominium unless obscured from view by a fence or appropriate screen approved by the Architectural Review Committee provided for hereinbelow.
Section 8. Structural Changes. There shall be no
structural alteration, modification or construction to the exterior of a Condominium (e.g., windows, doors, Exclusive Use Corporation Property, etc.), fence or other structure whatsoever in the Project without the prior written approval of the Board or its designated Architectural Review Committee and the County, as required herein, except such works of construction by Declarant during the development of the Project. Each Owner of a Condominium Unit originally constructed by Declarant understands that such Owner has no control over the exterior of the Condominium Buildings, except as set forth herein (e.g., windows and doors). Nothing in this Declaration or the Rules and Regulations shall require the installation of an Improvement in any manner which violates Civil Code Section 4720 (relating to the installation and repair of a roof). The Board may adopt Rules and Regulations regarding the Corporation Property (including all Exclusive Use Corporation Property areas) as the Board may deem reasonable and necessary.
Section 9. Improvements. There shall be no construction, alteration or removal of any Improvement in the Project (other than those repairs or rebuilding permitted under the Article entitled "Damage or Destruction to the Corporation Property") without the approval of the Architectural Review Committee and the County, as set forth hereinbelow. No Improvement shall be constructed upon any portion of any Corporation Property, other than such Improvements as shall be constructed: (a) by the Declarant (or a person or entity to whom Declarant assigns its rights as developer) or (b) by the Corporation as provided herein, as may be permitted by the Architectural Review Committee in accordance with the Article herein entitled "Architectural Review - Approval." Each Owner assumes all risks which may result from Improvements the Owner makes to his or her Condominium Unit, and each Owner indemnifies and holds harmless the Corporation, Declarant and each other Owner from any claim, demands, liabilities, judgments, attorneys’ fees and other obligations which arise out of or are incurred in connection with the installation, existence or removal of such Improvements. NO OWNER MAY MODIFY THE
ROOF, EXTERIOR, OR ANY STRUCTURAL ELEMENT OF ANY CONDOMINIUM BUILDING.
Section 10. Windows. Temporary window coverings
(“Temporary Window Coverings”) in a design and color that does not conflict with the surrounding Improvements (but excluding aluminum .-29130.FCM 101521 -81-
foil, newspaper, plywood or any other contrasting material) are permitted for a maximum period of sixty (60) days after the Condominium is conveyed by Declarant to an Owner. Except as specifically provided in the proceeding sentence, no Temporary Window Coverings shall be used to cover any door or window of any Condominium. All window coverings (including Temporary Window Coverings) shall be of a neutral color harmonious with and not in conflict with the color scheme of the exterior wall surface of the Condominium Building.
Section 11. Commercial Activity. No business, commercial, manufacturing, mercantile, storage, vending or industrial operations of any kind shall be conducted in or upon any Condominium or the Corporation Property, except such temporary uses as shall be permitted by Declarant. Notwithstanding the foregoing, this Section shall not preclude an Owner from maintaining a homeoffice and conducting business activities therefrom on the following conditions: (a) there is no external evidence of such activity; (b) such activities are conducted in conformance with all applicable government laws (e.g., all necessary permits and/or licenses are obtained); (c) the patrons or clientele of such activities do not visit the Condominiums or park automobiles or other vehicles within the Project; (d) the existence or operation of such activities is not apparent or detectable by sight, sound or smell from outside of the boundaries of the Condominium Building; (e) no such activity increases the liability or casualty insurance obligation or premium of the Corporation; and (f) such activities are consistent with the residential character of the Project and conform with the provisions of this Declaration. Until such time as Declarant no longer has an ownership interest in the Property or the Annexation Property, no Owner or the Corporation shall use a Condominium as an office for the rental, resale or leasing of Condominiums without the prior written consent of Declarant.
Section 12. Parking and Vehicular Restrictions.
(a) Authorized Vehicles. The following vehicles
are "Authorized Vehicles": standard passenger vehicles
including automobiles, passenger vans designed to accommodate ten (10) or fewer people, motorcycles (provided they are operated at levels not exceeding 45 decibels), and pick-up trucks having a manufacturer's rating or payload capacity of one (1) ton or less; provided, however, the dimensions of each of such foregoing vehicles may not exceed the following:
(1) seven feet (7.0’) in width from farthest
point to point, including mirrors and
tires;
(2) eighteen feet (18’) in length, including
bumper attachments and hitches; and
.-29130.FCM 101521 -82-
(3) six feet, four inches (6’4") in height,
including roof racks or other projections.
The Board has the power to identify additional vehicles as Authorized Vehicles in the Rules and Regulations and to adapt this restriction to other types of vehicles.
(b) Restricted Vehicles. The Board has the power
to identify restricted vehicles in the Rules and Regulations, other than Prohibited Vehicles, which may be stored in an Owner’s garage if such storage would not prevent, prohibit, and/or impede said Owner from parking the number of four wheel vehicles therein for which the garage was originally designed and constructed by Declarant to accommodate (e.g., 1 or 2). (c) Prohibited Vehicles. The following vehicles
are "Prohibited Vehicles": (a) recreational vehicles,
trailers, watercraft, and boats; (b) commercial-type vehicles (e.g., stakebed trucks, tank trucks, dump trucks, step vans, concrete trucks and limousines), excluding those which
constitute Authorized Vehicles; (c) buses or vans designed to accommodate more than ten (10) people, (d) vehicles having more than two (2) axles, (e) trailers, (f) inoperable vehicles or parts of vehicles, (g) aircraft, (h) any vehicle or
vehicular equipment deemed a nuisance by the Board, and (i) any other vehicle not classified as an Authorized Vehicle or Restricted Vehicle. If a vehicle qualifies as both an Authorized Vehicle and a Prohibited Vehicle, then the vehicle is presumed to be a Prohibited Vehicle, unless the vehicle is expressly classified as an Authorized Vehicle in writing by the Board.
(d) Temporary Parking. "Temporary Parking" shall
mean the parking of: (a) such vehicles belonging to Owners and/or their invitees or guests for purposes of loading and unloading only, or (2) delivery trucks, service vehicles and other commercial vehicles for purposes relating to the
furnishing of services to the Corporation, an Owner or tenant, and/or for loading and unloading only; provided, further, that no such temporarily parked vehicle may remain within the Project overnight.
(e) Parking in Project. The entryway, drives,
aisles, and guest parking areas within the Project are private and are subject to the Protective Covenants of this Declaration, as well as all applicable laws, ordinances and regulations of all governmental agencies having jurisdiction over the Project. Parking is not permitted in any fire lanes or other areas of the Project described and/or depicted on Exhibit "C" attached hereto and incorporated by this
reference, in other areas depicted or described in the Rules .-29130.FCM 101521 -83-
and Regulations, or as specified by "NO PARKING - FIRE LANE" or similar signs or markings originally installed by
Declarant. Unless otherwise provided herein or in the Rules and Regulations for the Project, the parking of vehicles owned or controlled by an Owner or other resident of a Condominium is permitted only in the garage of that Condominium.
Prohibited Vehicles may not be parked in the Project
(including in an Owner’s garage). There shall be no parking of any vehicles on any portion of the sidewalks or unpaved surfaces, such as lawns or dirt surfaces, on in any other area where the parked vehicle might overhang into a pedestrian or vehicular travel way. No traffic calming devices (including, but not limited to, speed bumps or speed humps) shall be installed on the private drives or aisles in the Project, and no vehicle shall block or impede access of fire fighting equipment to or through the private drives or aisles or fire hydrants in the Project. The Board may, from time to time, establish Rules and Regulations for the operating and parking of vehicles in the Project.
(f) Reporting of Parking Violations. Each Owner is
authorized to report parking violations on the private
streets, drives, and aisles in the Project, to the
Corporation’s Board of Directors. Parking violations on the public streets adjacent to the Project should be reported to the City or other Local Governing Agency exercising
jurisdiction over such public streets. Any enforcement action taken by the Board to correct violations of the parking Rules and Regulations shall be in accordance with the provisions set forth herein.
(g) Parking in Garage. As required by the City,
each Owner shall keep his garage readily available for parking of the Owner’s or the Owner’s tenant’s respective vehicle(s) at all times, and shall not store any Restricted Vehicles, goods or materials therein, nor use any portion thereof for a workshop or other use, if such storage or use would prevent, prohibit, and/or impede said Owner from parking the number of four wheel vehicles therein for which said garage was originally designed and constructed by Declarant to accommodate (e.g., 1 or 2). No garage or other parking space may be rented or conveyed separately from a Condominium. Each Owner shall ensure that all parking spaces in the garage are at all times available for parking and shall use such space for parking his or her vehicles therein when said vehicles are in the Project. Garage doors shall remain closed at all times, except as reasonably required for entry to and exit from the garage. Each Owner shall ensure that his garage door is a roll-up garage door with an automatic garage door opener and that the automatic garage door opener is in proper working order at all times.
.-29130.FCM 101521 -84-
(h) Vehicle Repair and Maintenance. No Owner shall
conduct any repairs to any motor vehicle of any kind
whatsoever in or upon any portion of the Project, except for emergency repairs thereto and then only to the extent necessary to enable the vehicle to be moved to a proper repair facility. In addition, no garage shall be used for any purpose other than parking of an Owner’s vehicle and storage (only so long as such storage does not interfere with the parking of Owner’s vehicles therein). UNLESS OTHERWISE SPECIFIED IN THE
RULES AND REGULATIONS, NO WASHING OR POLISHING OF ANY VEHICLE,
AND NO HOSING OF IMPERVIOUS SURFACES, IN THE PROJECT IS PERMITTED.
(i) Use of Power Tools in Garages. Unless
expressly authorized by the Board in writing or in the event of an emergency, no power equipment (other than hand-held power tools) or other similar apparatus may be used in the garages or Project.
Section 13. Regulation of Parking. Subject to the
rights of the Corporation, through its officers, committees and agents, the Board is hereby empowered to establish "parking" and "no parking" areas within the Corporation Property, in accordance with the local fire authority’s standards and Section 22658 of the California Vehicle Code, or any similar statute hereafter enacted, as well as to enforce these parking limitations by all means lawful for such enforcement, including, but not limited to, the levying of fines (if allowed by law) and the citing and towing of vehicles.
Parking is limited in accordance with signs installed by Declarant or authorized by the City. The Board shall have the authority to tow away and store any vehicle or similar equipment parked in violation of the above limitations whether the same shall belong to any Owner or a member of the Owner’s family or to any tenant, lessee, guest or invitee of any Owner (if required by the City, a written warning for first time violators with subsequent violations subject to immediate towing). Charges for such towing and storing shall be assessed against the Owner of the Condominium which is responsible for the violation of such restrictions, and such assessment may be enforced as a Compliance Assessment.
Section 14. Compliance With Governing Documents. All
Owners shall be Members of the Corporation and shall comply with the terms and conditions as set forth herein and in the Articles and the By-Laws, and all Rules and Regulations of the Corporation and Architectural Review Committee. No Owner shall transfer any membership or interest in the Corporation, except upon the transfer of the Condominium to which it is appurtenant.
Section 15. Declarant’s Improvements. Nothing in this
Article or elsewhere in this Declaration shall limit the right of Declarant to complete construction of any Improvements to the Corporation Property and/or to any Condominium (e.g., patio .-29130.FCM 101521 -85-
landscaping for Condominiums sold or owned by Declarant, modifications to the Condominium Buildings, hardscape, landscaping, etc.), or to alter the foregoing or to construct such additional Improvements to the Corporation Property and/or any Condominium as Declarant deems advisable prior to completion and sale of the entire Project (including any Annexation Property annexed to the Project pursuant to the provisions of this Declaration). The rights of Declarant under this Declaration may be assigned by Declarant to any successor to all or any part of Declarant’s interest in the Project, as developer, by an express assignment incorporated in a recorded deed transferring such interest to such successor. Any Improvements constructed by Declarant (e.g., to the property associated with the models or model complex) will be approved for that property, but may not necessarily be allowed by the Board for other property in the Project which is not subject to the Declarant exemption.
Section 16. Solar. Each Owner shall have the right to
install a solar system exclusively serving the Owner’s Condominium (e.g., solar panel, solar collector, and/or associated wiring and/or other equipment of a solar energy system) in accordance with applicable law (e.g., Civil Code Sections 714, 714.1, 4600, 4746, etc.). Each Owner shall own and shall be responsible, at the Owner’s sole cost and expense, for the maintenance of any solar system exclusively serving the Owner’s Condominium (e.g., solar panel, solar collector, and/or associated wiring and/or other equipment of a solar energy system, including, without limitation, any solar system originally installed by Declarant in an Exclusive Use Corporation Property solar system location, or any solar system otherwise installed by an Owner in accordance with applicable law).
In addition, each Owner shall be responsible for procuring and maintaining appropriate third party liability insurance coverage relating to the solar system exclusively serving the Owner’s Condominium, with limits approved by the Board (in its reasonable discretion), and on which the Corporation is named as an additional insured, and at the beginning of each calendar year shall provide the Corporation with a certificate of insurance evidencing such insurance coverage. The installation of any solar system by an Owner shall be subject to all applicable zoning regulations, the Uniform Building Code and City associated ordinances, and reasonable review by the Architectural Review Committee for compliance with the architectural standards adopted by the Corporation, based on reasonable standards consistent with applicable law (e.g., California Civil Code Sections 714, 714.1, 4600, 4746, etc.), as same may be amended from time to time. At a minimum, any solar panels or collectors are to be integrated with the roof design and angle, with the panels or collectors and frame colored to match the roof or bronze anodized or otherwise approved by the Board.
Notwithstanding any provision in this Declaration (including this Section), the Board shall have the right to require that only a contractor or other person approved by the Board enter the roof or other portion of a Condominium Building or other Corporation .-29130.FCM 101521 -86-
Property for the purpose of placing, installing, maintaining, repairing, and replacing the solar system, and shall have the right to condition such entry on the contractor’s or other person’s compliance with reasonable requirements for the protection of the Corporation Property or Corporation (e.g., requirements that the contractor be appropriately licensed, maintain insurance coverage on which the Corporation is named as an additional insured, execute an indemnity agreement in favor of the Corporation, keep the Corporation Property free of mechanic’s liens, and/or restore the Corporation Property to substantially the same condition that existed prior to the contractor’s entry on the Corporation Property; requirements that a representative of the Corporation be present during the performance of all activities on the roof or other portion of a Condominium Building or in other portions of the Corporation Property, etc.). Notwithstanding any provision in this Section, the Board (in its sole and absolute discretion) shall also have the right, but not the obligation, by the unanimous vote of all of the directors on the Board, to require that the Corporation or its contractors (rather than the Owner or its contractors) perform all work on the roof or other portion of a Condominium Building or other Corporation Property required to install, maintain, repair, and/or replace any element of a solar system exclusively serving the Owner’s Condominium, in which event the Owner shall pay all of the Corporation’s costs and expenses (including all costs and expenses charged by the Corporation’s contractor) to perform such work. By acceptance of a deed to a Condominium in the Project, each Owner acknowledges that the Solar Shade Control Act, codified at California Public Resources Code Sections 25980 et seq., as the same may be amended from time to time, may: (a) preclude the future planting of any trees or the planting of medium or large trees in portions of the Project; (b) preclude the installation of any upper-floor additions, roof-top structures or other tall Improvements, if approved by the City and the Architectural Review Committee); (c) preclude the growth of tree and shrubs to mature heights; and (d) otherwise impact the landscaping and other Improvements that an Owner may maintain in any Exclusive Use Corporation Property areas of an Owner’s Condominium. Prior to making any Improvements, an Owner shall consider whether the proposed Improvements will shade the absorption area of a solar collector that has already been installed in the Project. Any Owner submitting an application to the Architectural Review Committee for the construction or installation of landscaping or other Improvements shall address in such application the impact of such landscaping and Improvements on existing solar collectors in the Project (including, without limitation, the height at maturity of all trees, shrubs and other landscaping and the location and the height of all Improvements installed on the respective properties). However, the Owner shall be solely responsible for complying with the Solar Shade Control Act, and neither the Board nor the Architectural Review Committee shall be responsible for enforcing any Owner’s compliance with the Solar Shade Control Act or resolving any disputes between Owners .-29130.FCM 101521 -87-
which may arise under the Solar Shade Control Act. By acceptance of a deed to a Condominium, each Owner acknowledges and agrees that Declarant makes no representation or warranty that any solar system installed in the Project will, for any time period, be free from shading prohibited by the Solar Shade Control Act, and, to the maximum extent permissible under the law, each Owner releases and discharges Declarant and the Corporation from any claims, loss, liability and/or damage arising from the negative impact of any such shading.
Section 17. Antenna Restriction. No Person may install
any antenna or over-the-air receiving device except for an "Authorized Antenna" if allowed hereunder. An Authorized Antenna is (i) an antenna designed to receive direct broadcast satellite service, including direct-to-home satellite service, that is one meter or less in diameter, or (ii) an antenna designed to receive video programming service, including multichannel multipoint distribution service, instructional television fixed service, and local multipoint distribution service, and is one meter or less in diameter or diagonal measurement, (iii) an antenna designed to receive television broadcast signals, or (iv) an antenna used to receive and transmit fixed wireless signals. An Authorized Antenna may be mounted on a mast to reach the height needed to receive an acceptable quality signal, subject to Local Government Agency permitting requirements for safety purposes.
(a) Restrictions on Installation. The Architectural Review Committee may adopt reasonable restrictions on installation and use of an Authorized Antenna as part of its design guidelines in order to minimize visibility of the Authorized Antenna from other Condominiums. Such restrictions may designate one or more preferred installation locations, or require camouflage such as paint (subject to the antenna manufacturer's recommendations) or screening vegetation or other Improvements. However, no restriction imposed by the Committee may (i) unreasonably delay or prevent the installation, maintenance or use of an Authorized Antenna, (ii) unreasonably increase the cost of installation, maintenance or use of an Authorized Antenna, or (iii) preclude acceptable quality reception.
(b) Prohibitions on Installation. The Architectural Review Committee may prohibit the installation of an Authorized Antenna in a particular location if, in the
Architectural Review Committee's opinion, the installation, location or maintenance of such Authorized Antenna unreasonably affects the safety of the Owners or any other Person, or for any other safety-related reason established by the
Committee. The Architectural Review Committee may also
prohibit an Owner from installing an Authorized Antenna on any real property which such Owner does not own or is not entitled to exclusively use or control under this Declaration (e.g., an .-29130.FCM 101521 -88-