Owner shall have no right to install anything within the Common Area). The Architectural Review Committee also has the power to prohibit or restrict the installation of any antenna or other over-the-air receiving device that does not meet the definition of an Authorized Antenna above.
(c) Review after Installation. The Architectural
Review Committee may review the location and installation of an Authorized Antenna after it is installed. After its
review, the Architectural Review Committee may require that the Authorized Antenna be moved to a preferred location (if one has been designated) for safety reasons or to comply with reasonable restrictions subject to this Section and applicable law.
(d) Restatement of Applicable Law. This Section is
intended to be a restatement of the authority granted to the Architectural Review Committee under the law. All amendments, modifications, restatements and interpretations of the law applicable to the installation, use or maintenance of an antenna or other over-the-air receiving device shall be interpreted to amend, modify, restate or interpret this Section.
Section 18. Leasing. With the exception of a lender
in possession of a Condominium following default of a first mortgage, foreclosure or deed or other arrangement in lieu of foreclosure (unless otherwise prohibited by FNMA, GNMA, FHLMC, or FHA/VA), the following restrictions apply to the rental or lease of a Condominium: no Owner shall be permitted to rent or lease any portion of the Owner’s Condominium for transient or hotel purposes or for a period of less than thirty (30) days. All rental and lease agreements shall be in writing, and a copy of such rental and lease agreements shall be provided to the Board or the property management company as set forth in the Rules and Regulations. All rental and lease agreements shall be subject to, and shall require the tenant(s) to comply with the provisions of this Declaration, the By-Laws, Articles, and Rules and Regulations, and shall state that any failure by the tenant or lessee to comply with the terms of such documents shall constitute a default under such agreement.
Section 19. Drilling. No oil drilling, oil development
operations, oil refining, quarrying or mining operations of any kind shall be permitted upon or in the Project, nor shall oil wells, tanks, tunnels or mineral excavations be permitted upon or in the Project. No derrick or other structure designed for use in boring for oil, water or natural gas shall be erected, maintained or permitted in the Project.
Section 20. Trash and Recycling. Each Owner and other
resident in the Project shall place all rubbish, trash, garbage, recycling and other waste material (collectively "Trash") in closed .-29130.FCM 101521 -89-
containers with fitted lids acceptable to the City’s designated trash collection service, all such Trash containers shall be stored in the Owner’s garage and shall be obscured from view from the Corporation Property, and each Owner shall use his best efforts to assure that no odor shall arise therefrom so as to be unreasonably offensive to any adjacent Condominium or other portion of the Project, or to otherwise be unsanitary, unsightly, offensive or detrimental to any other residents in the Project. No Trash or Trash containers shall be stored overnight in Exclusive Use Corporation Property patio or deck areas or other Exclusive Use Corporation Property areas (if any). Appropriate Trash containers may be exposed to the view of neighboring Condominiums only when set out in designated Trash collection areas (e.g., as set forth in the Rules and Regulations) no earlier than 5:00 p.m. the night prior to the Trash collection day and removed from such designated Trash collection areas within twelve (12) hours after collection, unless otherwise modified by the Board. Each Owner of a Condominium shall pay the Trash disposal costs applicable to the Owner’s Condominium directly to the City’s Trash collection service. If common Trash receptacles are located in the Corporation Property (e.g., in common recreational areas, etc.), all Owners shall utilize such receptacles in accordance with the Rules and Regulations and applicable law. No toxic or hazardous materials (other than household cleansers) may be disposed of within any Trash containers in the Project. The Board may adopt additional Rules and Regulations pertaining to the storage and disposal of Trash consistent with this Declaration.
Section 21. Drainage. There shall be no interference
with the established drainage pattern over any Condominium (e.g., Exclusive Use Corporation Property patio, deck, etc.) within the Project as to affect any other Condominium or the Corporation Property or property outside the Project (assuming there has been established a historical flow of water across the Project as confirmed in writing by the City), unless adequate alternative provision is made for proper drainage and is approved in writing by the Architectural Review Committee. For purposes hereof, "established" drainage is defined as the drainage which exists at the time such Condominium is conveyed to a purchaser from Declarant, or later grading changes that are shown on plans approved in writing by the Architectural Review Committee and, if required by the City’s Municipal Code. The Corporation is responsible for maintaining any storm drainage facilities described and depicted as maintained by the Corporation on an Exhibit to this Declaration and/or a recorded Notice of Annexation (e.g., Exhibit "D" attached hereto); otherwise, each Owner is responsible for maintaining all drainage facilities on the Owner’s Condominium (e.g., Exclusive Use Corporation Property patio, deck, etc.). Each Owner agrees not to obstruct, retard or otherwise interfere with, in any manner whatsoever, any drainage swales and structures, or to perform any grading or construction on the Owner’s Condominium which may result in creating an excessive amount of surface water runoff (i.e., an .-29130.FCM 101521 -90-
amount of water beyond the flow originally intended and provided for by the approved grading plan) to flow into any drainage facilities. No Owner shall interfere with any drainage facilities or the maintenance, repair, or replacement of any drainage facilities maintained by the Corporation.
Section 22. Prohibition Against Further Subdivision.
No Owner shall make any conveyance, execute any document or map, or enter into any contract which shall purport to further subdivide any Condominium in any manner whatsoever, including, without limitation, subdividing such Condominium into additional lots, condominiums, stock cooperatives or timeshare uses, whether by map, deed or contract. Any such conveyance, document, map or contract shall be void and of no force or effect whatsoever.
Section 23. Patios, Porches, Entry Areas, Decks, and
Patios. Patios, porches, entry areas, decks, and patios, and all furniture, plants and other Improvements situated therein, shall be kept at all times in a neat, clean, safe and attractive condition.
Except as otherwise provided in the Rules and Regulations or expressly prohibited by Civil Code Section 4753, clothes, towels, blankets, laundry, or clotheslines shall not be placed on or hung from any patio, porch, deck, entry area, or in any portion of the Corporation Property, where doing so would be visible from any other Condominium, the Corporation Property, or the public. Patios, porches, entry areas, decks, and patios shall not be used for storage of any items deemed inappropriate by the Architectural Review Committee. Unless otherwise permitted by the Rules and Regulations and City, no cooking appliances other than electrical fueled equipment are allowed on the decks, and no wood or charcoal burner may be operated in the Project.
Section 24. Exemption of Declarant. Nothing in this
Article or elsewhere in this Declaration shall limit, restrict, abridge or control, in any manner whatsoever, the rights of Declarant 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 the Condominiums in the Project, including the Annexation Property:
(a) The right to maintain and operate one (1) or
more advertising, sales or leasing office(s), and construction trailer(s), construction parking areas, temporary utility facilities and/or lines, and parking area for employees located upon any Condominium(s) owned by Declarant or upon any Corporation Property without payment of rent or approval of the Corporation;
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(b) The right to post and display from any
Condominium(s) owned or controlled by Declarant or from any Corporation Property any sign, flag, banner, billboard or other advertising which Declarant may, in its sole discretion, deem appropriate, irrespective of size, color, shape or materials of such items, except to the extent that the
exercise of said right conflicts with any provisions of the City’s Municipal Code or other applicable governmental
regulations;
(c) The right to install, place, replace, construct, reconstruct, modify or remove any Improvement from any Condominium owned or controlled by Declarant, from any
Corporation Property, as Declarant may, in its sole discretion, deem appropriate; provided that in the event Declarant removes any Corporation owned Improvement from any Corporation Property without the express prior written consent of the Board, Declarant shall replace such Improvement with an Improvement of substantially similar value, appearance and utility within a reasonable period following completion of any work necessitating the removal of the Improvement;
(d) The right to conduct any commercial activity
upon any Condominium owned or controlled by Declarant or upon any Corporation Property which reasonably relates to the development, marketing, leasing or sales of the Condominiums in the Project; and
(e) The right to park vehicles upon any Condominium
owned or controlled by Declarant or upon any Corporation Property.
All or any portion of the rights of Declarant herein and elsewhere in this Declaration may be assigned by Declarant to any successor-in-interest in the Project, including the Annexation Property, by an express written assignment recorded in the Office of the County Recorder.
Section 25. No Easements for View Purposes; Disclaimer. The Article herein entitled "Architectural Review - Approval," sets forth procedures for the approval of Improvements which may be constructed upon Condominiums in the Project which are consistent with the architectural standards adopted, from time to time, pursuant to said Article. The architectural standards may have some effect on views and the passage of light and air to individual Condominiums. However, by promulgation and enforcement of the architectural standards, or otherwise, neither Declarant, nor the Board, nor the Architectural Review Committee, nor the members, employees or consultants of any of the foregoing, have made any representations whatsoever concerning the view, if any, that a particular Condominium or other Improvement thereon will enjoy. There are no express or implied easements or rights .-29130.FCM 101521 -92-
whatsoever appurtenant to any Condominium for view purposes, or for the passage of light and air. Each Owner, by accepting a deed to a Condominium, hereby expressly acknowledges and agrees that further construction within the Project may impair the view, if any, from such Owner’s Condominium, and each Owner hereby expressly consents to any such impairment and understands that no Owner has any right to a view and that Improvements in the Project will impair any view.
Section 26. Public Right-of-Way. No Owner shall
construct any Improvement in the public right-of-way or public utility easement adjacent to or within the Project, if applicable, unless the Owner obtains all necessary permits from the City, public utility company or other utility provider, and approval from the Board, as necessary.
Section 27. Screen Doors. No Owner shall install any
screen door in any portion of a Condominium unless such Owner has written approval from the Architectural Review Committee.
Section 28. Best Management Practices. All Owners and
the Corporation must comply with the Best Management Practices set forth in the Water Quality Management Plans. Failure to follow such Best Management Practices may result in severe civil and criminal penalties.
Section 29. Rights of Disabled. Subject to the
provisions of this Declaration, Civil Code Section 4760, State and Federal Laws regarding accommodations for the handicapped, and approval by the Architectural Review Committee, each Owner may modify his or her Condominium Unit and the route leading to the front door of his or her Condominium Unit, at his or her sole expense, in order to facilitate access to his or her Condominium Unit by persons who are blind, visually impaired, deaf or physically disabled, or to alter conditions which could be hazardous to such persons.
Section 30. Water Beds. Each Owner of a Condominium
hereby acknowledges that no water beds are allowed in the Condominium Buildings, and any Owner who breaches this Section shall indemnify and hold the Declarant, the Corporation, and the Members harmless from any claims, damages, losses or other liability arising from such breach.
Section 31. No Use of Hazardous Materials. No Owner
or other occupant of the Project shall use or allow any portion of the Project to be used for the generation, manufacture, storage, disposal, or release of Hazardous Materials. For purposes of this Declaration, the term "Hazardous Materials" shall mean any substances that are toxic, corrosive, inflammable, and/or ignitable, petroleum and petroleum byproducts, lead, asbestos, any hazardous wastes, and any other substances that have been defined .-29130.FCM 101521 -93-
as "hazardous substances," "hazardous materials," "hazardous wastes," "toxic substances," or other terms intended to convey such meaning, including those so defined in any of the following federal statutes, beginning at 15 U.S.C. section 2601 et seq., 22 U.S.C. section 1251 et seq., 42 U.S.C. section 6901 et seq. (RCRA), 42 U.S.C. section 7401 et seq., 42 U.S.C. section 9601 et seq. (CERCLA), 49 U.S.C. section 1801 et seq. (HMTA); or California statutes beginning at California Health and Safety Code Section 25100 et seq., Section 25249.5 et seq., and 25300, et seq., and California Water Code Section 13000, et seq., the regulations and publications adopted and promulgated pursuant to such statutes and any similar statutes and regulations adopted hereafter. Hazardous Materials shall not include substances that are stored on the Property as part of the normal construction and operation of residential housing.
Section 32. Noise, Odors, and Other Adverse Impacts.
Each Owner of a Condominium will experience noise, odors, fumes, and other adverse impacts associated with but not limited to, use of the Corporation Property and Condominiums, and as a result of living in close proximity to neighbors and businesses. These adverse impacts may include, without limitation, noise generated by plumbing fixtures and appliances that use water (e.g., toilets, sinks, bathtubs, showers, dishwashers, washing machines), televisions, radios, stereo systems, computers, human voices, walking on hard surfaces, the movement of furniture and people, children crying and playing, animal noises (e.g., dogs barking), the use and maintenance of landscaping and recreational facilities, air conditioners, exhaust systems and vents, electrical transformers, air conditioning condensers, maintenance and repair activities, and other activities, and odors and fumes generated by the smoking of cigarettes, cigars, pipes, barbecues, fireplaces, cooking, cleaning, and other activities. Each Owner understands and acknowledges that the Project is located in an urban environment in close proximity to many different commercial, residential, and other uses (e.g., commercial properties, busy streets, churches, etc.). Living in a Condominium within a densely populated community entails living in close proximity to other persons, with limitations on solitude. Notwithstanding whether or not windows, floors, walls, and ceilings have been constructed and designed to meet applicable building codes or whether noise mitigation measures have been implemented at the Project, the Condominium Buildings and individual Condominium Units therein are not sound and/or odor proof, and noise and/or odors from adjacent Condominiums, the Corporation Property, and surrounding areas will be heard and smelled. Each Owner should expect to hear and feel sounds, vibrations and other noise emanating from within and outside of his/her Condominium Unit, including, without limitation, sound and vibration from footfall and other movements of people; use of plumbing, fans, closing and opening of doors and cabinets; televisions, phones, computers, stereos and other electronic equipment and activities conducted in the Condominiums, and Corporation .-29130.FCM 101521 -94-
Property. Residents may hear the sound of garage doors opening at all hours of the day and night, including, without limitation, the mornings and early evenings when residents leave and return.
Residents of the Project may not engage in behavior or activities in their Condominiums or Corporation Property which impair other residents’ quiet enjoyment of their Condominiums. The Project is currently located in an area in which considerable noise, vibrations, and odors will be generated from traffic, air traffic, construction activities, truck deliveries, trash collection, commercial uses, and other activities.
Section 33. Sound Control Engineering in Condominium
Buildings. No alteration, repair or replacement may be made to any Condominium Unit which may diminish the effectiveness of the sound control engineering in the Condominium Building. Modifications to the floor, wall or ceiling of an Condominium Unit shall occur in the manner set forth in the Rules and Regulations, which may include the following:
(a) COMMON CEILING/FLOOR AND WALL SYSTEMS
(1) Condominium Unit common ceiling/floor
(e.g., for stacked Condominium Units) and common walls
(e.g., party walls) shall not be modified in any manner without the prior written approval of the Architectural Review Committee which would increase the noise levels in any other Condominium Unit or the Corporation Property. (2) Condominium Unit common walls (e.g., party
walls) shall not be modified in any way which would
compromise the acoustical performance of the as-built by Declarant common wall assembly.
(b) PLUMBING SYSTEM
(1) The plumbing systems of the Condominium
Units (except faucets) shall not be modified in any
manner without the prior written approval of the
Architectural Review Committee. The Owner comply with any Rules and Regulations which may require written evidence that the modifications will not increase the noise levels generated by the as-built plumbing system in any other
Condominium Unit. Examples of such modifications include, but are not limited to, the installation of spa tubs. If required by the Board, each Owner must use a licensed and approved contractor who has met any insurance obligations required by the Board.
(c) ALLOWED NOISE LEVELS
(1) No Condominium Unit owner or occupant, or
Condominium Unit mechanical, plumbing or electrical
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system, shall produce sound levels within any other
Condominium Unit that exceed the interior noise limits of the local governing jurisdiction in any other Condominium Unit. If there is no local noise limit that applies, the applicable limit shall be a maximum level of 50 dBA from 7:00 A.M. to 10:00 P.M. and 45 dBA from 10:00 P.M. to
7:00 A.M. as measured inside any other Condominium Unit with all windows and doors of the affected Condominium
Unit in a fully closed position.
(d) OTHER REQUIREMENTS
(1) To minimize the noise transmission from an
Condominium Unit, each Owner (other than Declarant) shall comply with the requirements noted above, and the
following:
(a) No modifications shall be made to
any Condominium Unit which would result in a reduction in the minimum impact insulation class of the Condominium Unit.
(b) Pianos shall have at least 1/2 inch
neoprene pads under the supports to minimize vibration transmission into the structure.
Section 34. No Modification Of Improvements Required
To Be Maintained By Corporation Or Interference With Corporation’s Maintenance Obligations. No Owner or other resident of the Project shall paint, trim, prune, alter, modify, disable, remove, or replace any Improvement in the Project that is required to be maintained by the Corporation under this Declaration, or take any other action which interferes with the Corporation’s maintenance and repair of such Improvements (including, without limitation, the Improvements described and/or depicted as maintained by the Corporation on Exhibits "D", "H", "I", "J", "K", and "M" hereto).
Section 35. Owner Annual Notice Requirement. As set
forth in Civil Code Section 4041(a), each Owner of a Condominium shall, on an annual basis, provide written notice to the Corporation of all of the following:
(1) The address or addresses to which notices from the
Corporation are to be delivered;
(2) An alternate or secondary address to which notices from the Corporation are to be delivered;
(3) The name and address of his or her legal representative, if any, including any person with power of attorney or other person who can be contacted in the event of the Owner’s extended absence from the Condominium (as applicable); and .-29130.FCM 101521 -96-
(4) Whether the Condominium (as applicable) is owneroccupied, is rented out, if the Condominium is developed but vacant, or if the Condominium is undeveloped land.
The Corporation shall solicit these annual notices of each Owner and, at least 30 days prior to making its own required disclosure under Section 5300 of the Civil Code, shall enter the data into its books and records. If an Owner fails to provide the notices set forth in subparagraphs (1) and (2) above, the property address of the Condominium shall be deemed to be the address to which notices are to be delivered.
Section 36. No Warranty of Enforceability. While
Declarant has no reason to believe that any of the Protective Covenants contained in this Article or elsewhere in this Declaration are or may be invalid or unenforceable for any reason or to any extent, Declarant makes no warranty or representation as to the present or future validity or enforceability of any such Protective Covenants. Any Owner acquiring a Condominium in the Project in reliance on one or more of such Protective Covenants shall assume all risks of the validity and enforceability thereof and, by acquiring the Condominium, agrees to hold Declarant harmless therefrom.
ARTICLE X
REPAIR AND MAINTENANCE
Section 1. Repair and Maintenance by Corporation. Without limiting the generality of the provisions herein, including the Article entitled "Powers and Duties of the Corporation," the Corporation shall have the duty to maintain, in a neat, clean, safe, healthy, sanitary, attractive and orderly condition at all times (reasonably free of weeds, visible deterioration, graffiti, debris and/or other conditions that violate the City’s Municipal Code), the Corporation Property designated by the Board, the Declarant, in this Declaration, or in any subsequent Notice(s) of Annexation, as generally indicated hereinbelow; provided, however, that Declarant shall be responsible for such maintenance until Declarant conveys the Corporation Property or an easement for the maintenance of the Corporation Property to the Corporation. Unless maintained by the City, County, a nature conservancy, landscape and lighting district, or similar non-profit entity approved by the City, assessment district, or other Local Government Agency or public entity, or otherwise directed by a unanimous vote of the Board, the Corporation Property (and all Improvements thereon) to be maintained, irrigated, landscaped, repaired, improved, restored and replaced in a neat, clean, safe, healthy, sanitary, attractive and orderly condition at all times shall include, but not be limited to, the following:
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(a) The Condominium Buildings (excluding the
Condominium Units), but including, without limitation,
awnings, bearing walls, columns, beams, slabs, foundations, exterior paint and exterior surfaces of the Condominium Buildings in the Project, including exterior walls and roofs, doors (all repairs to exterior doors and garage doors to individual Condominium Units, including the structural
maintenance thereof, shall be at the sole expense of the respective Owner, unless otherwise agreed to by the Board), the walls, fences, and/or railings enclosing the Exclusive Use Corporation Property decks, the structural integrity of the Exclusive Use Corporation Property decks and any deck surface waterproofing originally installed by Declarant (each Owner shall be responsible for the routine maintenance of the Owner’s Exclusive Use Corporation Property patio and deck, including sweeping and cleaning, and changing lightbulbs, if any, and the maintenance of the structure and all other aspects of the patio), any air conditioner pads or forced air heating unit pads, only if such pads are located outside the Condominium Unit and originally included in the Corporation budget reviewed by the DRE or subsequently approved by the Board (if such pads are located within an Exclusive Use Corporation Property patio or deck, the maintenance shall be that of the Owner thereof), exterior lights on the Condominium Buildings (which are not controlled by a switch within a Condominium Unit), shutters, gutters and downspouts.All lights maintained by the Corporation shall, subject to approval by the Police Department, provide adequate illumination during house of darkness;
(b) The private entryway, drives, aisles, and guest
parking areas in the Project, and related street Improvements originally constructed by Declarant thereon (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.) in substantially the same condition as originally approved by the City. Declarant hereby covenants to maintain the street Improvements located on the private entryway and each private drive and aisle in the Project in a neat, clean, safe and attractive condition, and in proper working order, at no cost to the Corporation or any Owner, pending Declarant’s conveyance to the Corporation of the private entryway, drive, or aisle, as part of the Corporation Property, for purposes of use, operation,
maintenance, regulation, drainage, utilities, and any other purposes set forth in this Declaration;
(c) Those 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., .-29130.FCM 101521 -98-
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) in accordance with the Water Quality Management Plans. The City shall have the right to enter the Project for the purpose of BMP
inspection and maintenance pursuant to the terms of any agreement by Declarant granting access rights to the City, which agreement shall be binding on the Corporation and all Owners;
(d) Those portions of the fences, walls, pilasters
(e.g., exterior surfaces, top and structural integrity), and gates described and/or depicted as maintained by the
Corporation on Exhibit "H" to this Declaration and/or a recorded Notice of Annexation, in substantially the same condition as originally approved by the City;
(e) Those portions of the private common sewer
lines and other 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) in substantially the same condition as originally approved by the City;
(f) Those 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, all master water meters and any water submeters shall be maintained by the Corporation) in substantially the same condition as originally approved by the City;
(g) Maintaining the common recreational facilities
in the Project (e.g., outdoor furniture, trellis/arbor, bicycle racks, etc.) in substantially the same condition as originally approved by the City;
(h) The 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 (including any irrigation water meters, backflow devices, and irrigation controllers), 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 .-29130.FCM 101521 -99-
serving a Condominium, including the internal and external telephone wiring designed to exclusively serve a Condominium), common exterior lighting (e.g., bollard lights and other exterior lights that are not controlled by a switch within an Owner’s Condominium Unit), and Project monuments, signs and directories;
(i) The landscaping, irrigation, and other
Improvements on the Corporation Property, including, without limitation, landscaping, irrigation Improvements, and other Improvements within the Project that are described/or depicted as maintained by the Corporation on an Exhibit to this
Declaration and/or a recorded Notice of Annexation (e.g., see Exhibit "K" attached hereto - specifically excluding landscaping and Improvements located within any Owner’s Exclusive Use Corporation Property patio and/or deck, which shall be
maintained by the Owner). As required by the City, the
landscaped areas to be maintained by the Corporation shall not be paved or used for storage or any similar purpose
inconsistent with the City’s conditions for the approval of the Project (as set forth in the Entitlements From City; (j) The automatic fire sprinkler systems, fire
alarm systems (if any), 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 Condominium Buildings
(including the Condominium Units) and other Corporation Property. Without any limitation of the foregoing, the
Corporation shall cause the automatic fire sprinkler systems to be serviced and maintained in working order at all times, and, to the extent required by the local fire authority, shall maintain a current fire sprinkler certification for the automatic fire sprinkler systems in accordance with applicable law and the requirements of the local fire authority, shall maintain service and maintenance records of the automatic fire sprinkler systems at the Project and shall have them available for review by the local fire authority upon request, and shall submit the required fire sprinkler certification reports to the local fire authority prior to the expiration of the previous five-year certifications. No Owner of a Condominium may modify, dismantle, disconnect, or remove such system, or take any other action which might make the system temporarily or permanently non-operational, without the written approval of the Corporation and City;
(k) An inspection and preventive program for the
prevention and eradication of infestation by wood destroying pests and organisms in the Corporation Property. In connection with the inspection and prevention program for the prevention and eradication of infestation by wood destroying pests and organisms, the Corporation, upon reasonable notice (which .-29130.FCM 101521 -100-
shall be given no less than fifteen [15] days nor more than thirty [30] days before the date of temporary relocation) to each Owner and the occupants of his/her Condominium Unit, may require such Owner and occupants to temporarily relocate from such Condominium Unit in order to accommodate efforts by the Corporation to eradicate such infestation. The notice shall state the reason for the temporary relocation, the date and time of beginning of treatment, the anticipated date and time of termination of treatment, and that the occupants will be responsible for their own accommodations during the temporary relocation. Any damage caused to a Condominium Unit by such entry by the Board or by any person authorized by the Board shall be repaired by the Board as a Common Expense of the Corporation. All costs involved in maintaining the inspection and preventive program as well as repairing and replacing the Corporation Property and Improvements thereon when the need for such maintenance, repair or replacement is the result of wood destroying pests or organisms shall be a Cost Center Expense.
(l) An inspection and preventive program, subject
to approval by the City’s Police Department, to monitor the area surrounding the trash pick up areas that impact public health to maintin the cleaniess of such areas.
(m) All amenities and all furnishings, equipment
and other personal property owned by the Corporation;
(n) Maintaining all other areas, facilities, equipment, services, aesthetic components or other Improvements of whatever nature as may, from time to time, be set forth in any Notice of Annexation, Budget reviewed by the DRE, or as approved by the Board or Declarant;
(o) To help mitigate potential personal injuries
and property damage caused by inadvertent damage to
underground utilities (e.g., underground water and sewer lines, underground electrical facilities, etc.), maintaining 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;
(p) Maintaining everything that the Corporation is
obligated to maintain in a clean, sanitary, and attractive condition reasonably consistent with the level of maintenance reflected in the most current budget of the Corporation, and in conformance with any Maintenance Guidelines. Unless
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specifically provided in any Maintenance Guidelines or product manufacturers’ maintenance recommendations or guidelines, or as commonly accepted maintenance practices may govern, the Board shall determine, in its sole discretion, the level and frequency of maintenance of the Corporation Property and Improvements thereon (as set forth below, each Owner shall maintain everything that Owner is obligated to maintain in a clean, sanitary and attractive condition and in conformance with any Maintenance Guidelines and Maintenance
Recommendations and product manufacturers’ maintenance
recommendations and guidelines, as well as commonly accepted maintenance practices);
(q) Performing all necessary tasks required to
conform with applicable City and/or State regulations.
(r) All other areas, facilities, furnishings and
Improvements of whatever nature as may, from time to time, be requested by the vote or written consent of three-fourths (3/4) of the voting power of the Members.
(s) Except as otherwise herein specified as being
paid by individual Owners, the costs of maintenance, repair, restoration and replacement as provided in this Article shall be Common Expenses and shall be paid out of the general fund of the Corporation. The Board shall have the right to require that only a contractor or other person approved by the Board shall enter any portion of the Corporation Property (including any portion of a Condominium which the Corporation is
obligated to maintain) 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 addition, if an Owner fails to inspect, maintain, repair and/or replace any Improvements on the Owner’s Condominium, the Corporation shall have the right and is hereby granted a permanent, nonexclusive easement, appurtenant to the Corporation Property, to enter the Owner’s Condominium and to perform such
inspections, maintenance, repairs, and/or replacements of the Improvements as the Corporation deems appropriate. In the event the Corporation is required to perform any inspections, maintenance, repairs or replacements of Improvements on an Owner’s Condominium because the Owner has failed to do so, .-29130.FCM 101521 -102-
such Owner shall promptly reimburse the Corporation for all costs of the Corporation incurred in connection with such inspections, maintenance, repairs, or replacements. Such costs may be levied by the Board as a Compliance Assessment.
A general maintenance matrix is attached hereto as Exhibit "M" and incorporated by reference. Any conflict between the matrix and the provisions herein shall be resolved by a unanimous vote of the Board. NO PERSON MAY ALTER, REMOVE, REPLACE, OR INTERFERE WITH THE CORPORATION’S MAINTENANCE OF,
ANY PROPERTY REQUIRED BY THIS DECLARATION TO BE MAINTAINED BY THE CORPORATION.
Section 2. Maintenance Manual. The Declarant may
deliver to the Board a "Maintenance Manual" which sets forth the Declarant’s and its consultants’ recommended frequency of inspections and maintenance of various components of the Corporation Property. The Board shall, during its meetings, determine whether the recommended inspections and maintenance activities have been followed, and, if any such recommendations have not been followed, what corrective steps, if any, need to be taken to assure proper inspection and maintenance of the Corporation Property. The Board shall keep a record of such determinations in the Board’s minutes.
The Board shall, from time to time, make appropriate revisions to the Maintenance Manual. The Board shall review the Maintenance Manual for appropriate revisions at least on an annual basis after the Board has prepared the annual pro forma budget and reserve study required by the By-Laws.
In addition to any obligations set forth in a Maintenance Manual, the Board may have the Corporation Property inspected at least once every three (3) years to (a) determine whether the Corporation Property is being maintained adequately in accordance with applicable standards of maintenance, (b) identify the condition of the Corporation Property and any Improvements thereon, including the existence of any hazards or defects, and the need for performing additional maintenance, refurbishment, replacement or repair, and (c) recommend preventative actions which may be taken to reduce potential maintenance costs to be incurred in the future.
The Board may employ such experts and consultants as are necessary to perform such inspection. The Board may have a report of the results of the inspection prepared. If determined appropriate by the Board, the report shall be furnished to Owners within the time set forth for furnishing Owners with the budget. The report should include at least the following:
(a) A description of the condition of the
Corporation Property, including a list of items inspected and the status of maintenance, repair and need for replacement of all such items;
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(b) A description of all maintenance, repair and
replacement planned for the ensuing fiscal year and included in the budget;
(c) If any maintenance, repair or replacement is to
be deferred, the reason for such deferral;
(d) A summary of all reports of inspections
performed by any expert or consultant employed by the Board to perform inspections;
(e) A report of the status of compliance with the
maintenance, replacement and repair needs set forth in the inspection report for preceding years; and
(f) Such other matters as the Board deems appropriate.
Section 3. Project Inspections. The Board shall
require strict compliance with all provisions of this Declaration and shall periodically cause inspections of the Project to be conducted by the Architectural Review Committee to report any violations thereof. The Board shall also cause inspections of the Corporation Property and all Improvements thereon to be conducted in conformance with the applicable Maintenance Guidelines and applicable law (e.g., Civil Code Section 5551, etc.), and in the absence of inspection frequency recommendations in any applicable Maintenance Guidelines, at least once every three (3) years, in conjunction with the inspection required for the reserve study to be conducted as required herein, in the By-Laws or by State law, to (a) determine whether the Corporation Property is being maintained adequately in accordance with applicable standards of maintenance, (b) identify the condition of the Corporation Property and any Improvements thereon, including the existence of any hazards or defects, and the need for performing additional maintenance, refurbishment, replacement, or repair, and (c) recommend preventive actions which may be taken to reduce potential maintenance costs to be incurred in the future. With respect to deck inspections, the Corporation shall ensure compliance with all applicable requirements established by law (e.g., visual inspection conducted by a licensed structural engineer or architect of a random and statistically significant sample of exterior elevated elements of the decks for which the Corporation has maintenance and repair responsibility). The Board shall during its meetings, regularly determine whether the recommended inspections and maintenance activities set forth in any applicable Maintenance Guidelines have been followed and, if not followed, what corrective steps need to be taken to assure proper inspections and maintenance of the Corporation Property and all Improvements thereon. The Board shall keep a record of such determinations in the Board’s minutes. Until otherwise notified by the Declarant, the Board shall keep Declarant fully informed of the Board’s activities under this Section. The .-29130.FCM 101521 -104-
Board shall employ, consistent with reasonable cost management, such experts, contractors and consultants as are necessary to perform the inspections and make and maintain the Corporation’s records the reports required by this Declaration, including this Section and applicable law (e.g., California Civil Code Section 5551, etc.).
The Board shall prepare a report of the results of
each of the inspections required by this Section, which shall comply with Section 2 above, including: For a period of ten (10) years after the date of the last close of escrow for a Condominium in the Project, the Board shall also furnish to Declarant (a) the report of each inspection performed for the Board, whenever such inspection is performed and for whatever portion of the Corporation Property that is inspected, within thirty (30) days after the completion of such inspection, and (b) the most recent inspection report prepared for any portion of the Corporation Property, within ten (10) days after the Corporation’s receipt of a written request therefor from Declarant.
Section 4. Maintenance of Phases Subject to Construction Easement. Notwithstanding anything stated to the contrary in this Declaration, the Corporation shall have no obligation to maintain or repair any portion of a Phase until commencement of the Corporation’s Assessments against the Condominiums within such Phase. Should any Improvements overlap between Phases, the Corporation shall only be responsible to maintain that portion of such Improvements which lie in the Phase(s) in which the Corporation’s maintenance obligations have commenced.
Section 5. Repair and Maintenance by Owner. Except
as otherwise provided elsewhere in this Declaration (e.g., in Section 1 above of this Article entitled "Repair and Maintenance", etc.) regarding the Corporation’s maintenance obligations affecting an Owner’s Condominium Unit and Exclusive Use Corporation Property, every Owner shall have the duty to maintain, repair and replace, at the Owner’s sole cost and expense, all Improvements within such Owner’s Condominium Unit and Exclusive Use Corporation Property or which represent an integral part thereof, e.g., pipes and utility lines and outlets which provide service to only the Owner’s Condominium Unit and/or Exclusive Use Corporation Property, including the internal and external telephone wiring, water lateral exclusively serving the Owner’s Condominium Unit and Exclusive Use Corporation Property (from within the Condominium Unit up to, but excluding, the water sub-meter) and private sewer lateral exclusively serving the Owner’s Condominium Unit (from within the Condominium Unit up to the point of connection to the common private sewer line serving multiple homes or the public sewer main), no matter where such are located, in a neat, clean, safe, sanitary, attractive and orderly condition at all times. Each Owner shall keep the Owner’s respective Exclusive Use Corporation Property in a neat and clean condition in accordance with the .-29130.FCM 101521 -105-
Corporation Rules and Regulations. Without limiting the generality of the foregoing, and by way of example only, and except as may otherwise be provided in this Declaration (e.g., Section 1 above) regarding the Corporation’s maintenance obligations, each Owner of a Condominium Unit and Exclusive Use Corporation Property shall:
(a) Paint, maintain, repair, replace, restore, decorate, tile, finish, plaster, and/or landscape or cause to so maintained, repaired, replaced, restored, decorated, tiled, finished, plaster, and/or landscaped (as the case may be) the following:
(1) The interior surfaces of the walls,
ceilings, and floors of the Owner’s Condominium Unit.
However, no bearing walls, ceilings, slab, floors or
other structural or utility bearing portions of the
Condominium Buildings housing the Condominium Units shall be pierced or otherwise altered or repaired, without the prior written approval of the plans for the alteration or repair by the Architectural Review Committee, which may approve or disapprove such in its sole and absolute
discretion. Each Owner shall have the right to substitute new finished surfaces in place of those existing on the ceiling, floors, walls and doors of the Owner’s
Condominium Unit as purchased from Declarant.
(2) Each Owner of a Condominium shall be
responsible for the maintenance and repair of:
i) The windows and the interior surfaces of doors enclosing the Condominium Unit, including the metal frames, tracks and exterior screens of glass doors and windows; provided, however:
a) The Corporation may contract for the
replacement of windows, in which event the
Owner will reimburse the Corporation for its
costs so incurred;
(3) Except as may otherwise be provided above
or approved by a unanimous vote of the Board and applied in a non-discriminatory manner, all window glass,
screens, if any, and all interior doors and the structural integrity of the exterior doors and garage doors (including locks, latches, weatherstripping, and thresholds); (4) All interior lighting fixtures, all
exterior light bulbs controlled by a switch inside the
Condominium Unit and all interior plumbing fixtures,
including back flow prevention devices, bathtubs, shower stalls, toilets, and sinks, heating, cooling, cable
.-29130.FCM 101521 -106-
television, water heating systems, heating systems, and electric equipment/system, and other utilities which are located within or which exclusively serve said Owner’s
Condominium Unit (e.g., water line from within the
Condominium Unit up to, but excluding, the water submeter, sewer lateral from within the Condominium Unit up to the point of connection to the common private sewer
line serving multiple homes or public sewer main, etc.); (5) All internal and external telephone wiring
designed to serve the Owner’s Condominium Unit and the
hinges, lock, and key of the mailbox exclusively serving the Owner’s Condominium;;
(6) All kitchen appliances, forced air heating
units, the air conditioning unit, the hot water heater
(if any - a tankless water heater may be provided), and the garage door opener which are located within or
service the Owner’s Condominium Unit;
(7) Routine maintenance (e.g., sweeping and
cleaning and replacing light bulbs) of any Exclusive Use Corporation Property appurtenant to the Condominium Unit (e.g., patio, deck, etc.);
(8) The Exclusive Use Corporation Property
deck exclusively serving the Owner’s Condominium Unit (if applicable), excluding those portions maintained by the Corporation (i.e., the walls, fences, and/or railings
enclosing the deck areas, any waterproofing originally
installed on the surface of the deck, and the structural integrity of the deck);
(9) The Exclusive Use Corporation Property
patio exclusively serving the Owner’s Condominium Unit
(if applicable), including, without limitation, any hose bibs, faucets, spigots, water shut-off valves, and electrical outlets and switches in the patio area, and any landscaping (e.g., potted plants) and any drain openings within the patio area (as indicated in Exhibit "K"
attached hereto, the Corporation shall be responsible for the maintenance of the landscaping surrounding the patio area);
(10) The Exclusive Use Corporation Property air
conditioning pad exclusively serving the Owner’s
Condominium Unit, as well as the air conditioning
compressor and associated equipment and wiring, and
Exclusive Use Corporation Property solar system
exclusively serving the Owner’s Condominium Unit,
including, without limitation, the solar panels, solar
collectors, and associated equipment and wiring;
.-29130.FCM 101521 -107-
provided, however, that no Owner or other person may
enter the roof of a Condominium Building without the
Board’s prior written approval;
* add hinges for the locak
(11) The heating, ventilation and air
conditioning (HVAC) system exclusively serving the
Owner’s Condominium Unit;
(12) In the event it is necessary for an Owner
to access the Corporation Property to maintain, repair, and/or replace any utility laterals or lines exclusively serving a Condominium (e.g., water or sewer lateral,
etc.) or any Exclusive Use Corporation Property (e.g.,
air conditioning unit, solar system, etc.), such Owner
shall comply with all conditions, requirements and
restrictions imposed by the Board in order to access the Corporation Property and complete such work (e.g.,
requirements that the contractor be appropriately
licensed, maintain and provide the Corporation with
written evidence of insurance coverage on which the
Corporation is named as an additional insured, obtain the Corporation’s written permission to access the roof 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 roof of a Condominium Building or in other 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 in the Corporation
Property required to maintain, repair, and/or replace any equipment, utility laterals or lines, or other
Improvements 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). Because underground utilities and
pipelines are located within the Project site, to avoid potential personal injuries and property damage caused by inadvertent damage to the underground utility lines
and/or pipelines, anyone intending to dig or perform any kind of excavation work within the Corporation Property (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
.-29130.FCM 101521 -108-
commencing such work so that local utility companies and pipeline operators may mark the locations of their
underground utility lines and pipelines;
(13) Best Management Practices. Each Owner of
a Condominium shall obtain a copy of the Water Quality
Management Plans approved for the Project and shall
inform himself or herself of said Owner’s responsibility related to the Water Quality Management Plans, their
implementation, and Best Management Practices associated with the Water Quality Management Plans (including,
without limitation, all Best Management Practices
pertaining to any storm water drainage facilities on the Owner’s Exclusive Use Corporation Property not maintained by the Corporation, if applicable). Each Owner shall
accept all ongoing responsibilities for implementation
and amendment of the Water Quality Management Plans for such Owner’s Exclusive Use Corporation Property
(excluding those maintained by the Corporation) for as
long as the Owner owns the Condominium.
(b) In the event any Owner shall fail to perform
his/her maintenance obligations as set forth herein, the Corporation shall have the right, but not the duty, to cause such maintenance to be performed. If the Board elects to cause such maintenance work to be performed, the cost thereof (including a reasonable administrative fee) shall be assessed against said Owner as a Compliance Assessment. Each Owner shall reimburse the Corporation for those costs incurred which result from the Condominium occupants’ excessive or neglectful use of the Exclusive Use Corporation Property or other
portions of the Project.
Section 6. Maintenance of Public Utilities. Nothing
contained herein shall require or obligate the Corporation to maintain, replace or restore the underground facilities or public utilities which are located within easements in the Corporation Property owned by such public utilities. However, the Corporation shall take such steps as are necessary or convenient to ensure that such facilities are properly maintained, replaced or restored by such public utilities.
Section 7. Damage and Destruction Affecting a
Condominium Unit - Duty to Rebuild. In the event any Condominium Unit is damaged or destroyed by fire or other casualty, it shall be the duty of the Owner to repair or reconstruct the Condominium Unit (e.g., including, without limitation, all interior walls, lighting fixtures, plumbing fixtures, cabinets, furniture and Improvements therein, together with restoration and repair of all interior paint, wall coverings and floor coverings, etc.), at the individual expense of the Owner of the Condominium Unit, unless covered by insurance maintained by the Corporation for the benefit of such .-29130.FCM 101521 -109-
Owner as determined by the Board, in a manner which will restore it to its condition and appearance immediately prior in time to such damage or destruction, or as otherwise approved by the
Architectural Review Committee. Notwithstanding the foregoing, the structural elements of the Condominium Unit shall be restored as determined by the Board. The Architectural Review Committee shall not approve any variance if the finished Condominium Unit would be inharmonious or out of keeping with the overall architectural theme of the Project, or with the exterior design of any adjacent Condominiums. The affected Owner shall be obligated to proceed with all due diligence hereunder, and shall be responsible for commencing reconstruction within three (3) months after the damage occurs, and completing such reconstruction as soon as reasonably possible thereafter.
Section 8. Owners’ Cooperation for Maintenance. The
Owners of adjacent Condominiums shall cooperate with each other as is reasonably necessary to enable each Owner to properly maintain and repair the Owner’s respective Condominium and/or to mitigate any damage to the Owner’s Condominium.
ARTICLE XI
ENVIRONMENTAL AND OTHER DISCLOSURES
AND REQUIREMENTS
Section 1. Environmental Requirements.
(a) Duties and Obligations of the Owners. To
reduce and/or eliminate negative effects on the environment within the Project, all Owners and/or tenants, as applicable, shall:
(1) Not discharge toxic chemicals or hydrocarbon compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood preservatives, and other such fluids into the public right-of-way, public or private, or into storm drain or storm water conveyance
systems. Use and disposal of pesticides, fungicides,
herbicides, insecticides, fertilizers and other such
chemical treatments shall be in accordance with the
recommended City or County guidelines on Best Management Practices as prescribed in their respective containers. (2) Use Best Management Practices, as described in the Water Quality Management Plans to eliminate or reduce surface pollutants when planning any changes to the landscaping and surface Improvements to
the Project when conducting any activities that may
impact water quality (i.e., paint brush washing,
lettering, etc.).
.-29130.FCM 101521 -110-
(3) Maintain any drainage devices on the
Owner’s Condominium (e.g., Exclusive Use Corporation
Property patio, deck, etc.) in accordance with all
Maintenance Guidelines, if applicable.
(4) Abide by and comply with all applicable
provisions of the Water Quality Management Plans.
(b) Duties and Obligations of the Corporation.
Notwithstanding anything to the contrary set forth herein, the Corporation shall:
(1) Contract with a contractor to perform all
activities required to minimize the pollution of storm
drain water and to comply with all Best Management
Practices applicable to the Project, including, without limitation, the following:
i) Periodically inspect and clean
(i.e., at least twice a year, once immediately
prior to October 1st and once in January of each
year, and at such other times as may required by
the City Engineer) and otherwise maintain the
private storm drainage 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., 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);
ii) If applicable, inspect for
legibility at least once per storm season (i.e., no
later than October 1st of each year) and maintain
stenciling on storm drains saying "NO DUMPING,
DRAINS TO OCEAN, BAY, CREEK, CHANNEL," as
appropriate;
iii) Provide efficient irrigation
systems on all landscaped areas located in the
Corporation Property (e.g., the areas depicted as
maintained by the Corporation on Exhibits "K"
attached hereto and/or to a recorded Notice of
Annexation);
iv) Minimize irrigation runoff by
using controllers to provide several short watering
cycles;
.-29130.FCM 101521 -111-
v) Immediately correct any irrigation
design or maintenance deficiencies which cause
excessive runoff;
vi) Prohibit application of fertilizers within three (3) days prior to an anticipated rain;
vii) Follow all fertilizer applications
with light irrigation to permit fertilizer to soak
into the landscaped area;
viii) Dispose of waste properly;
ix) Periodically provide, and maintain
appropriate records of, educational programs to
Condominium Owners and other residents within the
Project on good housekeeping, the use of
pesticides, herbicides, fertilizers, proper
disposal of wastes, and other storm water pollution
prevention measures in accordance with the Water
Quality Management Plans;
x) Comply with and perform all
obligations pertaining to stormwater facilities set
forth in the Water Quality Management Plans,
including, without limitation, conducting
inspections of all stormwater treatment measures
and trash capture devices at the frequencies set
forth in the Water Quality Management Plans, and
completing and submitting reports to the City as
required by the Water Quality Management Plans.
(2) Abide by and comply with all applicable
provisions of the Water Quality Management Plans.
ARTICLE XII
ARCHITECTURAL REVIEW - APPROVAL
Section 1. Exemptions From Architectural Review. Except as otherwise provided herein or approved by the Board, all Improvements shall be subject to architectural approval by the Corporation in accordance with the provisions of this Declaration.
Notwithstanding the foregoing, Declarant shall be exempt from compliance with any of the provisions of this Article as they may relate to the original construction and development of the Project by Declarant in accordance with the plans approved by the City; provided, however, if Declarant shall desire to construct any Improvements to the exterior of a Condominium Building (e.g., windows, doors, Exclusive Use Corporation Property areas .-29130.FCM 101521 -112-
appurtenant to a Condominium Unit, etc.) after such Condominium Building has been completed and approved by the City, Declarant shall obtain approval for such Improvements from the City, and provided further, if Declarant shall retain a Condominium Unit in a Condominium Building for personal use, any Improvements to such Condominium Unit shall be subject to architectural approval pursuant to this Article.
Section 2. Architectural Review. Except for the purposes of proper maintenance and repair, and except as otherwise permitted hereunder, no person shall build, construct, erect or install any Improvement, or modify the exterior appearance of his or her Exclusive Use Corporation Property (e.g., patio, deck, air conditioning pad, solar system location, as applicable), until all conditions which may be imposed by the City have been satisfied and until any and all plans and specifications required pursuant to this Article shall have been submitted to and approved in writing by the Architectural Review Committee. For the purposes of this Section, the term "exterior" shall mean any outside wall, outside surface, roof, outside door, deck, patio, or other outside structure which is visible to others in the Project and/or to the public.
Section 3. Architectural Review Committee. The Architectural Review Committee is hereby authorized with the rights and powers set forth in this Article. The Architectural Review Committee may consist of three (3) members, and each initial member shall serve until the first election of the Board. In the event of the failure or inability of any member of the Architectural Review Committee to act, the remaining members shall designate a successor who shall serve for the remainder of the term of the member he replaces. The Declarant shall appoint all of the original members of the Architectural Review Committee and replacements thereto.
Further, Declarant reserves the power to appoint a majority of the members of the Architectural Review Committee until ninety percent (90%) of the Condominiums in the proposed development of the Project (i.e., Phase 1 and the Annexation Property) have been sold and escrows closed or until the fifth (5th) anniversary of the issuance of the Final Subdivision Public Report for the first Phase of the Project. After one (1) year from the date of the issuance of the Final Subdivision Public Report for the first Phase of the Project, the Board shall have the power to appoint one (1) member to the Architectural Review Committee until ninety percent (90%) of the Condominiums in the Project have been sold, or until the fifth anniversary date of the first close of escrow for the sale of a Condominium pursuant to the Final Subdivision Public Report for the first Phase of the Project, whichever first occurs. Thereafter, the Board shall have the power to appoint all of the members of the Architectural Review Committee. All members appointed to the Architectural Review Committee by the Board shall be from the membership of the Corporation. Members appointed to the Architectural Review Committee by the Declarant, however, need not be .-29130.FCM 101521 -113-
members of the Corporation. No member of the Architectural Review Committee shall be liable to any person for his decisions or failure to act in making decisions as a member of the Architectural Review Committee. Declarant may, in its discretion and at any time, assign to the Corporation by written assignment its powers of removal and appointment with respect to the Architectural Review Committee, subject to such terms and conditions regarding the exercise thereof as Declarant may impose.
Section 4. Meetings of the Architectural Review Committee. The Architectural Review Committee shall meet, from time to time, as necessary to perform its duties hereunder. The Architectural Review Committee may, by a majority vote of the members thereof and the Board, delegate any or all of the Committee’s rights and responsibilities hereunder to one (1) or more duly licensed architects, who shall have full authority to act on behalf of the Architectural Review Committee on all matters so delegated.
Section 5. Architectural Approval - Review of Plans
and Specifications. The Architectural Review Committee shall have the right and duty to promulgate reasonable standards against which to examine any request made pursuant to this Article, in order to ensure that the proposed plans are in conformance with and are harmonious to the exterior design and existing materials of the Exclusive Use Corporation Property of the Condominiums in the Project and applicable design standards (including, without limitation, color schemes). The Architectural Review Committee shall consider and act upon any and all plans and specifications submitted for its approval under this Declaration, and perform such other duties as, from time to time, shall be assigned to it by the Board, including the inspection of construction and progress to ensure its conformance with the plans approved by the Architectural Review Committee. No construction, alteration, grading, addition, excavation, demolition, modification, decoration, redecoration or reconstruction of an Improvement shall be commenced or maintained by any Owner until the plans and specifications therefor showing the nature, kind, shape, height, width, color, materials and location of the same shall have been submitted to the Architectural Review Committee and approved in writing by the Architectural Review Committee. The initial address for submission of such plans and specifications shall be provided to the Owners by the Board.
The Architectural Review Committee shall approve the plans and specifications submitted for its approval only if it deems that:
(a) the construction, alterations or additions contemplated thereby and the locations indicated will not be detrimental to the appearance of the surrounding area of the Project as a whole; (b) the appearance of any structure affected thereby will be in harmony with surrounding structures; (c) the construction thereof will not detract from the beauty, wholesomeness and attractiveness of the Project or the enjoyment thereof by the Owners; (d) the upkeep and maintenance thereof will not become a burden on the Corporation; and (e) the proposed Improvements are in substantial compliance .-29130.FCM 101521 -114-
with the adopted Architectural Guidelines, if any. In addition to the foregoing, in its review of plans and specifications, the Architectural Review Committee may take into consideration, among other things, the scale of site dimensions; conformity and harmony of external design with neighboring Improvements; effect of location and use of Improvements (including landscaping) on neighboring Condominiums; relation of topography, grade and finish grade elevation to neighboring Condominiums; proper facing of all elevations; aesthetic beauty; and conformity of the plans and specifications to the purpose and general plan and intent of the Protective Covenants of this Declaration. The Architectural Review Committee may withhold approval of the plans and specifications for any proposed Improvement because of noncompliance with any of the specific Protective Covenants set forth in this Declaration; because of the dissatisfaction of the Architectural Review Committee with the proposed nature, kind, plan, design, shape, height, dimensions, proportions, architectural style, color, finish or materials to be used therein, the pitch or type of any proposed roof, or the size, type or location of any proposed trees or the landscaping to be planted; or because of the dissatisfaction of the Architectural Review Committee with any aspect of the proposed Improvement which could cause the proposed Improvement to be inappropriate, inharmonious or out-of-keeping with the general plan of improvement for the Project, or with the Improvements on or topography of the surrounding property.
The Architectural Review Committee may condition its
approval of proposals or plans and specifications for any Improvement: (a) on such changes therein as it deems appropriate, (b) upon the agreement by the person submitting the same to grant appropriate easements to the Corporation for the maintenance of the Improvement, or (c) upon the agreement of the person submitting the same to reimburse the Corporation for the cost of such maintenance, or all of the above, and may require submission of additional plans and specifications or other information prior to approving or disapproving the submission.
The Architectural Review Committee may also issue rules or guidelines setting forth procedures for submission of plans for approval, requiring a payment of a fee to the Corporation to accompany each submission of plans and specifications, or additional factors which it will take into consideration in reviewing submissions.
The Architectural Review Committee may require such
detail in plans and specifications submitted for its review as it deems proper, including, without limitation, floor plans, site plans, drainage plans, elevation drawings, landscape plans and description or samples of exterior material and colors.
Section 6. Decisions of the Architectural Review Committee. Until receipt by the Architectural Review Committee of any .-29130.FCM 101521 -115-
required plans and specifications, and such other information as may be required in Section 5 above, the Architectural Review Committee may postpone review of any plans submitted for approval.
Decisions of the Architectural Review Committee and the reasons therefor should be transmitted by the Architectural Review Committee to the applicant, at the address set forth in the application for approval, within forty-five (45) days after receipt by the Architectural Review Committee of all plans, specifications and materials required. Any application submitted pursuant to the provisions of Section 5 above shall be deemed approved, unless written disapproval or a request for additional information or materials by the Architectural Review Committee shall have been transmitted to the applicant within forty-five (45) days after the receipt by the Architectural Review Committee of all required materials.
Section 7. Submittal to Public Agencies - Right of
Architectural Review Committee to Review. Upon obtaining the written approval of the Architectural Review Committee for the proposed Improvement, if such Improvement requires a building permit or zoning approval, the Owner shall thereafter submit the plans and specifications to all appropriate governmental agencies in accordance with their respective requirements. In the event that all approvals by the governmental agencies necessary for the issuance of a building permit are not obtained within six (6) months after the date of approval by the Architectural Review Committee, the Architectural Review Committee shall have the right, but not the obligation, to review all previously approved plans and specifications. In addition, in the event that the governmental agencies require modifications to the plans and specifications previously approved by the Architectural Review Committee, the Owner shall submit to the Architectural Review Committee all modifications to the plans and specifications previously approved by the Architectural Review Committee, which shall have the right to review and to impose further conditions on any such
modifications.
Section 8. Conflicts Between Governmental Agencies
and Architectural Review Committee. In the event of any conflict in the conditions of approval of any proposed Improvement imposed by the governmental agencies and the Architectural Review Committee, the more restrictive of such conditions shall be controlling.
Further, nothing herein shall limit the Architectural Review Committee from imposing conditions of approval of any proposed Improvements which are more restrictive than conditions that may be imposed by the appropriate governmental agencies.
Section 9. No Waiver of Future Approvals. The
Architectural Review Committee’s approval of any submissions for any work done, or proposed to be done, or in connection with any other matter requiring the approval or consent of the Architectural .-29130.FCM 101521 -116-
Review Committee, shall not be deemed to constitute a waiver of any right to withhold approval or consent of any similar proposals, plans and specifications, drawings or other matters subsequently or additionally submitted for approval.
Section 10. Compensation of Members. The members of
the Architectural Review Committee shall receive no compensation for services rendered, other than reimbursement by the Corporation, pursuant to Board approval, for expenses incurred in the performance of such members’ duties hereunder. This Section shall not be interpreted or construed to prohibit the Corporation from compensating any duly licensed Architect who has been delegated rights and duties as provided in this Article.
Section 11. Variances. Where circumstances such as
topography, location of buildings, location of landscaping or other matters require, the Architectural Review Committee, by the vote or written assent of a majority of the members thereof and the Board, may allow reasonable variances as to any of the Protective Covenants contained in this Declaration or provisions under the rules and regulations promulgated by the Architectural Review Committee, on such terms and conditions as it shall require. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose, except as to the particular Condominium and particular provision hereof covered by the variance, nor shall it affect in any way the Owner’s obligation to comply with all governmental laws and regulations affecting the Owner’s use of the Owner’s Condominium, including, but not limited to, zoning ordinances, Condominium Building setback lines or requirements imposed by the City, other Local Government Agencies, or other governmental authority.
Section 12. Inspection of Work. Upon consent of the
Owner, which consent shall not be unreasonably withheld, any member or authorized representative of the Architectural Review Committee may, at any reasonable hour and upon reasonable notice, enter and inspect any Condominium (including the Exclusive Use Corporation Property thereof) which has been the subject matter of an approval of a submission for an Improvement to the Owner’s Condominium. Such entry shall be made with as little inconvenience to the Owner as reasonably possible, and any damage caused thereby shall be repaired by the Corporation. If the Architectural Review Committee finds that such work was not done in substantial compliance with the approved plans and specifications, it shall notify the Owner in writing of such noncompliance, specifying the particulars of noncompliance and shall require the Owner to remedy the same within thirty (30) days from the date of notification of such noncompliance. If a noncompliance exists, the Board, after Notice and Hearing, may levy a Compliance Assessment against such Owner for the costs of removing or remedying such noncompliance.
.-29130.FCM 101521 -117-
Section 13. Non-Liability of Architectural Review Committee Members. Neither Declarant, the Corporation, the Board or the Architectural Review Committee, nor the members or designated representatives thereof, shall be liable for damages to any Owner submitting plans or specifications to them for approval, or to any Owner in the Project affected by this Declaration by reason of mistake in judgment, negligence or nonfeasance, unless due to willful misconduct or bad faith of the Architectural Review Committee. The Architectural Review Committee’s approval or disapproval of a submission shall be based solely on the considerations set forth in this Article, and in such rules and regulations as may be promulgated by the Architectural Review Committee, and the Architectural Review Committee shall not be responsible for reviewing, nor shall its approval of any plan or design be deemed approval of, any plans or design from the standpoint of structural safety and conformance with building or other codes.
Section 14. Appeal. In the event plans and specifications submitted to the Architectural Review Committee are disapproved, the party making such submission may appeal in writing to the Board. The written request must be received by the Board not more than thirty (30) days following the final decision of the Architectural Review Committee. The Board may request the written recommendations of the Architectural Review Committee for review.
Within sixty (60) days following receipt of the request for appeal, the Board shall consider the appeal at an open meeting and render its written decision. The failure by the Board to render a decision within said sixty (60) day period shall be deemed a decision in favor of the party making such submission.
Section 15. Approval of City. Each Owner is solely
responsible for ensuring that all plans and specifications submitted by such Owner to the Architectural Review Committee comply with, and do not violate, any applicable provision of law, including, without limitation, the Fair Employment and Housing Act (California Government Code Section 12900 et seq.), the City’s Municipal Code, all applicable building and construction codes, and all other applicable laws, regulations, and ordinances governing land use and public safety. Approval of any proposed or existing Improvement by the Architectural Review Committee or the Board, or the completion of any Improvement, shall not be construed to warrant or represent in any way that the Improvement was approved by or complies with the minimum standards of the City or any other provision of law. Similarly, approval of any proposed or existing Improvement by the City shall not be construed to constitute approval of such Improvement by the Architectural Review Committee or the Board.
.-29130.FCM 101521 -118-
ARTICLE XIII
DAMAGE OR DESTRUCTION TO
THE CORPORATION PROPERTY
Section 1. Restoration of Damaged Corporation
Property. Except as otherwise provided in Section 2 hereinbelow, damage to or destruction of all or any portion of the Corporation Property shall be handled in the following manner:
(a) In the event of damage to or destruction of the
Corporation Property, and the insurance proceeds are
sufficient to effect total restoration, the Corporation shall, as promptly as is practical, cause the Corporation Property to be repaired and reconstructed in a good and workmanlike manner to its condition prior to such damage or destruction.
(b) If the insurance proceeds available are at
least ninety percent (90%) of the estimated cost of total repair and reconstruction to the Corporation Property, the Corporation shall, as promptly as practical, cause such Corporation Property to be repaired and reconstructed in a good and workmanlike manner to its condition prior to the damage or destruction, and the difference between the
insurance proceeds and the actual cost shall be levied by the Corporation as a Special Assessment against each of the Condominiums on the same basis as Regular Assessments are imposed against the Condominiums.
(c) If the insurance proceeds available are less
than ninety percent (90%) of the estimated cost of total repair and reconstruction to the Corporation Property, the Owners shall, by the written consent or vote of a majority of the Owners, determine whether:
(1) To restore the Corporation Property as
promptly as practical to its condition prior to the
damage or destruction, and to raise the necessary funds over and above the insurance proceeds available by
levying Assessments against each of the Condominiums on the same basis as Regular Assessments are imposed against the Condominiums; or
(2) To restore the Corporation Property in a
way which utilizes all available proceeds and an
additional amount not in excess of ten percent (10%) of the estimated cost of total reconstruction and repair to the Corporation Property, and which is assessable as
provided above to all Condominiums, but which is less
expensive than restoring the Corporation Property to its condition prior to the damage or destruction.
.-29130.FCM 101521 -119-
Section 2. Election by Owners Not to Restore Damaged
Corporation Property.
(a) Notwithstanding the provisions set forth in
Section 1 hereinabove, in the event sixty-seven percent (67%) of the Owners, other than Declarant, and sixty-seven percent (67%) of the first Mortgagees (based upon one [1] vote for each first Mortgage owned) have given their prior written approval, the Owners may elect not to rebuild or restore the Corporation Property and to disburse the available insurance proceeds to the general fund of the Corporation if such is approved by the City as being consistent with all applicable Project approvals.
(b) In the event the Owners shall have so voted not
to rebuild the Corporation Property, the Corporation Property shall be cleared and landscaped and the cost thereof shall be paid for out of the available insurance proceeds prior to their distribution to the general fund of the Corporation. (c) In the event the Owners shall have so voted not
to rebuild the Corporation Property, unless the City shall agree to the contrary, it shall be the obligation of the Corporation and each of the Owners to rebuild the utilities and private streets, at least to the extent said utilities and private streets were accepted initially by the City in lieu of payment of fees due pursuant to law.
Section 3. Retention of Excess Insurance Proceeds in
General Fund. In the event any excess insurance proceeds remain after restoring the destroyed Corporation Property pursuant to this Article, the Board shall retain such sums in the general fund of the Corporation.
ARTICLE XIV
CONDEMNATION
Section 1. Distribution of Awards - Corporation
Property. Subject to the limitations set forth in the Article herein entitled "Mortgagee Protection," a condemnation award affecting all or any portion of the Corporation Property of the Project which is not apportioned among the Owners by court judgment shall be distributed to the Corporation and deposited in the general fund of the Corporation.
Section 2. Board of Directors as Attorney-in-Fact. All Owners hereby appoint the Board as their special attorney-infact to handle the negotiations, settlements and agreements pertaining to any condemnation affecting only the Corporation Property. The special power of attorney shall not apply to the .-29130.FCM 101521 -120-
Secretary of the Department of Veterans Affairs, an Officer of the United States of America. No Owner may participate as a party, or otherwise, in any proceedings related to such condemnation.
ARTICLE XV
COVENANT AGAINST PARTITION
Section 1. Covenant Against Partition. Except as
otherwise provided in this Article, the Corporation Property and Common Area shall remain undivided, and there shall be no judicial partitions of the Corporation Property or Common Area. Nothing herein shall be deemed to prevent partition of a co-tenancy in a Condominium.
Section 2. Judicial Partition of the Project. The
Owner of a Condominium in the Project may maintain a partition action as to the entire Project as if the Owners of all the Condominiums in the Project were tenants-in-common in the entire Project in the same proportion as their membership interests in the Corporation. The court shall order partition under this Article only by sale of the entire Project and only upon the showing of one (1) of the following:
(a) More than three (3) years before the filing of
the action, the Project was damaged or destroyed so that a material part was rendered unfit for its prior use, and the Project has not been rebuilt or repaired substantially to its state prior to the damage or destruction;
(b) Three-fourths (3/4) or more of the Project is
destroyed or substantially damaged, and at least sixty-seven percent (67%) of the Owners (other than Declarant) and sixtyseven percent (67%) of the first Mortgagees (based upon one [1] vote for each first Mortgage owned) oppose repair or restoration of the Project; or
(c) The Project has been in existence more than
fifty (50) years, is obsolete and uneconomical, and at least sixty-seven percent (67%) of the Owners (other than Declarant) and sixty-seven percent (67%) of the first Mortgagees (based upon one [1] vote for each first Mortgage owned) oppose repair or restoration of the Project.
Section 3. Board of Directors’ Power of Sale in Event
of Judicial Partition. Declarant, for itself and on behalf of each and every present and subsequent Owner of one (1) or more Condominiums within the Project, hereby appoints the Board as its and their attorney-in-fact to sell the entire Project for the benefit of all of the Owners thereof when partition of the Project may be had pursuant to this Declaration, which power shall: (a) be binding .-29130.FCM 101521 -121-
upon all of the Owners, whether they assume the obligations of these restrictions or not; (b) be exercisable by a vote of at least seventy-five percent (75%) of the voting power of the Board; and (c) be exercisable only after recordation of a certificate by the Board, which shall provide that said power is properly exercisable hereunder, and which certificate shall be conclusive evidence thereof in favor of any person relying thereon in good faith; provided, however, said power of attorney shall not apply to the Secretary of the Department of Veterans Affairs, an Officer of the United States of America.
ARTICLE XVI
INSURANCE
Section 1. Insurance Coverage Required To Be
Maintained By The Corporation. The Corporation, acting by and through the Board, shall obtain for the Corporation and shall maintain and pay the premiums for the following insurance coverage:
(a) Casualty and Fire Insurance for Corporation
Property. A master policy or policies of casualty and fire insurance, with an extended coverage endorsement in an amount equal to as near as reasonably possible one hundred percent (100%) of the current replacement cost (without deduction for depreciation or co-insurance) of the Corporation Property, together with all Improvements located therein (except
Improvements made by an Owner of a Condominium to Exclusive Use Corporation Property) and including those portions of the Condominium Units consisting of fixtures, built-in or set-in appliances, cabinets and initial basic floor coverings as initially installed thereof in accordance with the original plans and specifications for the Project submitted by
Declarant and approved by the City (excluding upgrades to any of the foregoing). Alternatively, if approved by the Board, a master policy or policies of casualty and fire insurance, with an extended coverage endorsement in an amount equal to as near as reasonably possible one hundred percent (100%) of the current replacement cost (without deduction for depreciation or co-insurance of the Corporation Property, together with all Improvements located therein, except Improvements made by an Owner of a Condominium to Exclusive Use Corporation Property), but specifically excluding interior Condominium Unit coverage (including, without limitation, interior walls and floor coverings); in the event the Board elects to obtain such master policy(ies), each Owner of a Condominium Unit shall procure and maintain, at the Owner’s sole cost and expense, an insurance policy of casualty and fire insurance covering the interior of his Condominium Unit, including replacement of interior improvements and betterment coverage to insure improvements that the borrower may have made to the interior .-29130.FCM 101521 -122-
of the Condominium Unit (e.g., a HO-6 policy) sufficient, as reasonably determined by the insurer, to repair the
Condominium Unit to its condition which existed immediately prior to a loss claim event. Said policies shall be primary and maintained for the benefit of the Corporation, the Owners and the Mortgagees, as their interests shall appear, and shall waive the right of subrogation against Owners, if obtainable.
If reasonably obtainable, the deductible shall be the lesser of Ten Thousand Dollars ($10,000) or one percent (1%) of the policy face amount. Such policy must be written by an insurance carrier that meets the requirements of FNMA, FHLMC, and/or VA/FHA as applicable. The coverage does not need to include land, foundations, excavations, or other items
normally excluded from such coverage. Such policy or policies must contain, if required and if obtainable:
(1) An Agreed Amount and Inflation Guard
Endorsement;
(2) Construction Code Endorsements (such as
Demolition Cost Endorsement);
(3) Contingent Liability From Operation of
Building Laws Endorsement;
(4) Increased Construction Endorsement if
there is a construction code provision which would become operative and require changes to undamaged portions of
the Corporation Property; and
(5) Any other special Endorsements that may be
available or required.
(b) General Liability Insurance. A policy or policies of comprehensive general liability insurance (with crossliability endorsement, if obtainable) insuring the Corporation, the Board, the Owners, the City and the Declarant, and the agents and employees of each of the foregoing, against any liability to the public or to any Owner, the Owner’s family, tenants, lessees and their respective guests and invitees, arising from or incident to the ownership, occupation, use, maintenance and/or repair of the Corporation Property, and from lawsuits related to employment contracts in which the Corporation is a party. The limits of liability under this Section shall be set by the Board and shall be reviewed at least annually by the Board, and increased or decreased at the discretion of the Board; provided, however, that said limits shall not be less than Three Million Dollars ($3,000,000.00) for bodily injury, including deaths of persons and property damage arising out of a single occurrence (unless approved by a vote of sixty-seven percent [67%] of the
Members); provided further, if FHLMC, FNMA, and/or VA/FHA .-29130.FCM 101521 -123-
participate in the financing of Condominiums in the Project, said limits shall not be less than the minimum limits required under the then current FHLMC, FNMA, and/or VA/FHA regulations. (c) Workers’ Compensation Insurance. Worker’s compensation insurance to the extent necessary to comply with any applicable laws.
(d) Fidelity Bonds. Officers’ and Directors’ errors
and omissions insurance, and fidelity bonds naming all persons signing checks or otherwise possessing fiscal responsibilities on behalf of the Corporation, including, but not limited to, officers, directors, the Board, trustees and employees of the Corporation, and officers, employees and agents of any
management company employed by the Corporation who handle or are responsible for the administration of Corporation funds, if obtainable. The Corporation’s fidelity bond coverage shall include coverage for computer fraud and funds transfer fraud and, if the Corporation enters into an agreement for
professional management of the Project, coverage for dishonest acts by such manager or management company. Such coverage shall be in an amount deemed reasonably appropriate by the Corporation, but shall not be less than an amount equal to or more than the combined amount of the reserves of the
Corporation and total Assessments for three (3) months. In addition, if the Corporation enters into an agreement for professional management of the Project, the Corporation shall require such company to submit evidence of its fidelity bond coverage to the same extent as the Corporation’s coverage. The Corporation shall be named as an additional obligee in the management agent’s bond.
(e) Flood Insurance. If the Project is located
within a "Special Flood Hazard Area" designated on a Federal Emergency Management Agency flood map, adequate flood insurance under the National Flood Insurance Program on buildings in the Project, which insurance coverage must protect the interests of Owners in their Condominium Units, as well as the Corporation Property and satisfy the requirements set forth in Section 10, below, of this Article.
(f) Liability. If the Board determines the coverage
is necessary and reasonably cost effective, it may obtain coverage necessary to comply with Civil Code Section 5800, e.g., one (1) or more policies of insurance which include coverage of at least One Million Dollars ($1,000,000.00) for (i) general liability for the Corporation and (ii) individual liability of officers and Directors of the Corporation for negligent acts or omissions in such capacity.
Section 2. Optional Insurance Coverage That May Be
Obtained By The Corporation. The Corporation, acting at its option .-29130.FCM 101521 -124-
and by and through the Board, may purchase such additional coverage or other insurance as it may deem necessary or appropriate, or otherwise financially beneficial for the Owners, including, but not limited to, earthquake insurance, flood insurance, and plate glass insurance.
Section 3. Notice of Cancellation of Insurance
Maintained By The Corporation. All policies of insurance maintained by the Corporation pursuant to this Article shall contain a provision that coverage under said policies may not be canceled, terminated, allowed to expire by their own terms, or be substantially modified by any party without at least thirty (30) days’ prior written notice to the Board, to each Owner and to such first Mortgagees who have filed written requests with the Corporation for such notice. A list of the Owners and such first Mortgagees shall be made available by the Corporation to the insurance carrier upon request.
Section 4. Board’s Review of Insurance Coverage
Maintained by Corporation. The Board shall annually determine whether the amounts and types of insurance coverage that it has obtained pursuant to this Article shall provide adequate coverage for the Project, based upon the then current construction costs, insurance practices in the area in which the Project is located and all other factors which may indicate that either additional insurance coverage or increased coverage under the existing policies is necessary or desirable to protect the interests of the Corporation, the Owners and their respective Mortgagees. If the Board determines that increased coverage or additional insurance is appropriate, it shall obtain same.
Section 5. Owner’s Waivers and Release of Claims. As
to all policies of insurance maintained by the Corporation which will not be voided or impaired thereby, each Owner hereby waives and releases all claims against the Corporation, the Board, the Declarant and the agents and employees of each of the foregoing, and all other Owners, with respect to any loss covered by such insurance, whether or not caused by the negligence of, or breach of, any agreement by said persons, but only to the extent of the insurance proceeds received in compensation for such loss.
Section 6. Corporation’s Rights And Obligations With
Respect To Premiums, Proceeds and Settlement. Insurance premiums for all blanket insurance coverage and any other insurance coverage which the Board has determined is necessary to protect the interests of the Corporation, the Owners and their respective Mortgagees, shall be a Common Expense to be included in the Regular Assessments levied by the Corporation. All insurance proceeds paid to the Corporation shall be disbursed as follows: (a) in the event of any damage or destruction to the Corporation Property, such proceeds shall be disbursed in accordance with the provisions of the Article herein entitled "Damage or Destruction to the .-29130.FCM 101521 -125-
Corporation Property"; and (b) in the event of any other loss, the proceeds shall be disbursed as the Board shall deem appropriate, subject to the limitations set forth in the Article herein entitled "Mortgagee Protection." The Corporation is hereby granted the authority to negotiate loss settlements with the appropriate insurance carriers. Any two (2) Directors may sign a loss claim form and release form in connection with the settlement of a loss claim, and such signatures shall be binding on the Corporation and its Members.
Section 7. Rights and Duties of Owners to Insure.
Each Owner of a Condominium is required to procure and maintain fire and casualty insurance on the Owner’s Condominium Unit and Exclusive Use Corporation Property and all Improvements therein and on the Owner’s personal property in amounts the Owner deems appropriate for which the Corporation has not purchased insurance.
Each Owner of a Condominium shall also procure and maintain appropriate third party liability insurance 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 shall be named as additional insured. When obtaining such insurance coverage, the Owner of a Condominium may wish to provide the Owner’s insurance broker with a copy of the Article of this Declaration entitled "Description of the Condominiums", and the Owner of a Condominium may wish to provide the Owner’s insurance broker with a copy of the Corporation’s fire and casualty insurance policy, so that the insurance broker can properly advise the Owner regarding the scope and extent of insurance coverage desirable for the Owner. Nothing in this Declaration shall preclude any Owner from carrying any liability insurance or other insurance that the Owner considers desirable (e.g., earthquake insurance, flood insurance, etc.); however, no Owner’s insurance policy may adversely affect or diminish any coverage provided under the Corporation’s insurance policies. If obtainable, any insurance carried by an Owner shall contain a waiver of subrogation of claims against the Declarant, the Corporation and the Board, and their agents and employees, and all other Owners. Such other policies shall not adversely affect or diminish any liability under insurance obtained by the Corporation.
If any loss intended to be covered by insurance carried by the Corporation shall occur and the proceeds payable thereunder shall be reduced by reason of insurance carried by any Owner, such Owner shall assign the proceeds of such insurance carried by the Owner to the Corporation to the extent of such reduction for application by the Board to the same purposes as the reduced proceeds are to be applied.
Section 8. Trustee for Policies Maintained By The
Corporation. The Corporation is hereby appointed and shall be deemed trustee for the interests of all insureds under the policies of insurance maintained by the Corporation. All insurance proceeds under such policies shall be paid to the Board, as trustees, and .-29130.FCM 101521 -126-
the Board shall have full power to receive such funds on behalf of the Corporation, the Owners and their respective Mortgagees, and to deal therewith as provided for in this Declaration.
Section 9. Mortgage Clause. All insurance policies
should have the "standard mortgage clause," or equivalent endorsement, providing that coverage of a Mortgagee under the insurance policy will not be adversely affected or diminished by an act or neglect of the Mortgagor, which is commonly accepted by private institutional mortgage investors in the area in which the Project is located, unless such coverage is prohibited by applicable law. Mortgages owned by FNMA must name as a Mortgagee either FNMA or the servicers for the Mortgages held by FNMA encumbering the Condominiums. When a servicer is named as the Mortgagee, its name should be followed by the phrase "its successors and assigns." If the Mortgage is owned in whole by FHLMC, the name of the servicer of the Mortgage followed by the phrase "its successors and assigns, beneficiary" should be named as Mortgagee instead of FHLMC. The mortgage clause should be endorsed to fully protect FHLMC’s interests or the interest of FHLMC and the servicer where applicable. If FHLMC must be named as Mortgagee, the endorsement should show the servicer’s address in lieu of FHLMC’s address. A mortgage clause in favor of Mortgagees holding Mortgages on Condominiums is not required on a policy insuring the Corporation Property.
Section 10. Compliance With Requirements of FHLMC,
FNMA and VA/FHA. Notwithstanding the provisions of this Article, the Corporation shall obtain and maintain in effect such policies of insurance which substantially comply with the requirements of FHLMC, FNMA, and/or VA/FHA established by those entities for condominium projects for so long as any of such agencies continue to be a Mortgagee, Owner, insurer or guarantor of a Mortgage in the Project, except to the extent such coverage is not available at a reasonable cost as determined by the Board or has been waived, in writing, by such agencies, including, without limitation, the following requirements:
a. Each insurance company providing
the insurance coverage described in this Article
shall be generally acceptable (i.e., an insurance
carrier who can satisfy the qualifications for
insurance carriers set forth in the FNMA Conventional Home Mortgage Selling Contract Supplement and the FHLMC Sellers Guide).
b. All insurance policies covering
the Corporation Property, or any portion thereof,
shall be held in the name of the Corporation for
the benefit of the Owners in the Project.
.-29130.FCM 101521 -127-
c. All insurance policies shall
provide that a certificate of insurance shall be
issued to each Owner and Mortgagee upon request.
d. Notwithstanding any other
provision of this Declaration, there may be named
as an insured, on behalf of the Corporation, the
Corporation’s authorized representative, including
any trustee with whom such Corporation may enter
into any insurance trust agreement or any successor
to such trustee, who shall have exclusive authority
to negotiate losses under any policy providing such
property or liability insurance and to perform such
other functions as are necessary to accomplish this
purpose.
e. The casualty and fire insurance
policies required to be maintained by the
Corporation shall also cover, in addition to all
other property described above, all building
services equipment and supplies and other personal
property belonging to the Corporation.
f. All fidelity bonds maintained by
the Corporation shall contain waivers by the issuer
of the bonds of all defenses based upon the
exclusion of persons serving without compensation
from the definition of "employees" or similar terms
or expressions. Notwithstanding any other
provision of the Declaration, in no event may the
aggregate amount of the fidelity bonds be less than
a sum equal to three (3) months aggregate monthly
installments of the Regular Assessments levied on
all Condominiums plus reserve funds.
g. If the Project is located in an
area which has been officially identified by the
Secretary of the United States Department of
Housing and Urban Development as having special
flood hazards and for which flood insurance has
been made available under the National Flood
Insurance Program ("NFIP") (i.e., Zones ^), the
Corporation shall obtain and pay the premiums upon,
as a Cost Center Expense, a "master" or "blanket"
policy of flood insurance on the Condominium Buildings containing the Condominium Units and any other property covered by the required form of policy, in
an amount deemed appropriate by the Corporation,
but not less than the following: The lesser of:
(a) the maximum coverage available under the NFIP
for all Condominium Buildings containing the
Condominium Units and other insurable property
.-29130.FCM 101521 -128-
within the Project to the extent that such
buildings and other insurable property are within
an area having special flood hazards and are
maintained by the Corporation; or (b) 100% of the
current replacement cost of all such Condominium
Buildings containing the Condominium Units and
insurable property. Such policy shall be in a form
which meets the criteria set forth in the guidelines on the subject issued by the Federal Insurance Administrator. h. In the event the Project contains
a steam boiler, the casualty and fire insurance
policy(ies) to be maintained by the Corporation
shall provide coverage for loss or damages resulting from steam boiler equipment accidents in an amount not less than $50,000 per accident per
location (or such greater amount as deemed prudent
based on the nature of the Project).
Section 11. Required Waiver. All policies of hazard
and physical damage insurance may provide, only if available at a reasonable cost to the Corporation as determined by the Board, in its sole discretion, for waiver of the following rights, to the extent that the respective insurers would have the rights without such waivers:
(a) Any defense based on co-insurance;
(b) Any right of set-off, counterclaim, apportionment,
proration or contribution by reason of other insurance not carried by the Corporation;
(c) Any invalidity, other adverse effect or defense on
account of any breach of warranty or condition caused by the Corporation, any Owner or any tenant of any Owner, or arising from any act, neglect or omission of any named insured, or the respective agents, contractors and employees of any insured; (d) Any right of the insurer to repair, rebuild or
replace, and, in the event the Corporation is not repaired, rebuilt or replaced following loss, any right to pay under the insurance an amount less than the replacement value of the improvements insured or the fair market value thereof;
(e) Notice of the assignment of any Owner of its interest in the insurance by virtue of a conveyance of any Condominium; and
(f) Any right to require any assignment of any Mortgage to the insurer.
.-29130.FCM 101521 -129-
Section 12. Annual Notification of Insurance. The
Corporation shall, upon issuance or renewal of insurance, but no less than annually, notify its Members as to the amount and type of insurance carried by the Corporation, and it shall accompany this notification with statements to the effect that the Corporation is or is not insured to the levels specified by this Article, and that if not so insured, Owners may be individually liable for the entire amount of a judgment, and if the Corporation is insured to the levels specified in Section 1 above, then Owners may be individually liable only for their proportional share of Assessments levied to pay the amount of any judgment which exceeds the limits of the Corporation’s insurance. The Corporation shall further prepare and distribute to all its Members a summary of the Corporation’s insurance coverage pursuant to Section 5300 of the California Civil Code.
ARTICLE XVII
MORTGAGEE PROTECTION
Section 1. Mortgagee Protection Provisions. Notwithstanding any other provisions in this Declaration to the contrary, in order to induce FHLMC, FNMA, and VA/FHA and other lenders and investors, to participate in the financing of the sale of Condominiums in the Project, the following provisions contained within this Article are added hereto, and to the extent these added provisions conflict with any other provisions in this Declaration, these added provisions shall control. This Declaration, the Articles and the By-Laws for the Corporation are hereinafter collectively referred to in this Article as the "constituent documents."
(a) The right of an Owner to sell, transfer or
otherwise convey his or her Condominium shall not be subject to any right of first refusal or any similar restriction in favor of the Corporation;
(b) The lien of the Assessments provided for herein
shall be subordinate to the lien of any first Mortgage now or hereafter recorded upon any Condominium. The sale or transfer of any Condominium shall not affect the Assessment lien; however, the sale or transfer of any Condominium pursuant to judicial or nonjudicial foreclosure of a first Mortgage or pursuant to any remedies provided for in the Mortgage shall extinguish the lien of such Assessments as to payments which became due prior thereto. No sale or transfer shall relieve such Condominium from liability for Assessments due thereafter. Any first Mortgagee who obtains title to a Condominium pursuant to the remedies provided in the Mortgage, or foreclosure of the Mortgage, or any purchaser at a foreclosure sale of a first Mortgage will not be liable for unpaid
.-29130.FCM 101521 -130-
Assessments or charges which accrue prior to the acquisition of title to such Condominium by the Mortgagee (except for claims for a share of such Assessments or charges resulting from a reallocation of such Assessments or charges to all Condominiums, including the mortgaged Condominium);
(c) Except as provided by statute in case of condemnation or substantial loss to the Condominiums and/or Corporation Property, unless sixty-seven percent (67%) of the Owners other than Declarant, or sixty-seven percent (67%) of the first Mortgagees (based upon one [1] vote for each
Condominium encumbered by said Mortgagee’s first Mortgage) have given their prior written approval, neither the Corporation nor the Owners shall be entitled to:
(1) Change the method of determining the
obligations, Assessments, dues or other charges which may be levied against an Owner’s Condominium;
(2) By act or omission seek to abandon, partition, subdivide, encumber, sell or transfer all or any portion of the Corporation Property. The granting of
easements for public utilities or for other purposes consistent with the intended uses of the Corporation Property or the residential nature of the Project, shall not be deemed a transfer within the meaning of this
clause;
(3) Use hazard insurance proceeds for losses
to the Corporation Property for other than repair,
replacement or reconstruction;
(4) Effect any decision of the Corporation to
terminate professional management and assume selfmanagement of the Project, where such professional management was previously a requirement by a holder, insurer or guarantor of any first Mortgage;
(5) By act or omission, change, waive or
abandon any provisions of this Declaration, or enforcement thereof, pertaining to architectural design of the Condominium Units or the maintenance and operation of the Corporation Property within the Project, including,
without limitation, fences and landscaping within the
Project;
(6) Fail to maintain fire and extended coverage on the insurable Corporation Property on a current replacement cost basis in an amount not less than one
hundred percent (100%) of the insurable value thereof;
and
.-29130.FCM 101521 -131-
(7) Abandon or terminate the Corporation,
except for abandonment, partition or termination as may be provided by law.
(d) All taxes, Assessments and charges which may
become liens prior to the first Mortgage under local law shall relate only to individual Condominiums, and not to the Project as a whole;
(e) No provision of the constituent documents shall
be interpreted to give any Owner or any other party priority over any rights of the first Mortgagee in the case of a distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of all or any portion of the Corporation Property or such Owner’s Condominium;
(f) The Assessments provided for in the constituent
documents shall include an adequate reserve fund for maintenance, repairs and replacement of those elements of the Corporation Property that must be replaced on a periodic basis, and shall be payable in regular installments, rather than by Special Assessments;
(g) Each holder, insurer or guarantor of a first
Mortgage who has filed with the Corporation a written request for notice shall be entitled to timely written notice of:
(1) Any condemnation or eminent domain proceeding, and any loss or taking resulting from such proceeding which affects the Project, or any portion
thereof;
(2) Any substantial damage or destruction to
the Project, or any portion thereof, when such loss
exceeds Ten Thousand Dollars ($10,000.00);
(3) Any default in the performance by an individual Owner of any obligation under the constituent documents which is not cured within sixty (60) days after the Corporation learns of such default, which notice
shall state the length of time which such Owner has been delinquent;
(4) Any lapse, cancellation or material
modification of any insurance policy or fidelity bond
maintained by the Corporation;
(5) Any abandonment or termination of the
Project; and
(6) Any proposed action that requires the
consent of a specified percentage of eligible Mortgagees. .-29130.FCM 101521 -132-
(h) Any agreement for professional management of
the Project, or any contract providing for services of the Declarant, may not exceed one (1) year, renewable by agreement of the parties for successive one (1) year periods. Any such agreement must provide for termination by either party with or without cause and without payment of a termination fee on at least thirty (30) days’ written notice, but not more than ninety (90) days;
(i) First Mortgagees of Condominiums may, jointly
or singly, pay taxes or other charges which are in default and which may have become a lien on the Corporation Property, and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for the Corporation Property, and first Mortgagees making such payments shall be owed immediate reimbursement therefor from the Corporation. Upon demand by any first Mortgagee, the Board shall execute, on behalf of the Corporation, an agreement establishing the right of all first Mortgagees to such
reimbursement;
(j) A first Mortgagee of a Condominium in the
Project will, upon request, be entitled to:
(1) Examine the books and records of the
Corporation during normal business hours;
(2) An audited financial statement from the
Corporation for the previous fiscal year (without expense to the holder, insurer or guarantor requesting said
statement); however, if an audited financial statement is not available and until such time as the Project contains fifty (50) Condominiums, any Mortgage holder may be
allowed to have an audited financial statement prepared, at its own expense; and
(3) Receive written notice of all meetings of
the Corporation and be permitted to designate a representative to attend all such meetings. (k) Each Owner shall notify the Corporation in
writing within ten (10) days after the close of escrow for the purchase of his Condominium of the name and address of the first Mortgagee on such Condominium, and thereafter, each Owner shall promptly notify the Corporation of any changes of name or address for the first Mortgagee;
(l) If any Condominium (or portion thereof) or the
Corporation Property (or portion thereof) is made the subject matter of any condemnation or eminent domain proceeding, or is otherwise sought to be acquired by a condemning authority, then the institutional holder of any first Mortgage on such .-29130.FCM 101521 -133-
Condominium will be entitled to timely written notice of any such proceeding or proposed acquisition; and
(m) Subject to the provisions set forth herein, in
the event any portion of the Corporation Property encroaches upon any Condominium Unit or any Condominium Unit encroaches upon the Corporation Property as a result of the construction and/or reconstruction or repair by Declarant, shifting, settlement or movement of any portion of the Project, a valid easement for the encroachment and for the maintenance of the same shall exist so long as the encroachment exists.
Section 2. Violation of Mortgagee Protection Provisions. No breach of any of the foregoing Protective Covenants shall cause any forfeiture of title or reversion or bestow any right of re-entry whatsoever, but in the event that any one or more of these Protective Covenants shall be violated, the Declarant, its successors and assigns, the Corporation, or any Owner in the Project may commence a legal action in any court of competent jurisdiction to enjoin or abate said violation and/or to recover damages; provided, however, that any such violation shall not defeat or render invalid the lien of any Mortgage or deed of trust made in good faith and for value. Said Protective Covenants shall be binding upon and effective against any Owner whose title is acquired by foreclosure, trustee sale or otherwise.
Section 3. Amendments to Conform With Mortgagee
Requirements. It is the intent of Declarant that this Declaration and the Articles and By-Laws of the Corporation, and the Project in general, substantially comply with requirements necessary to purchase, guarantee, insure or subsidize any Mortgage of a Condominium in the Project by the FHLMC, FNMA, and the VA/FHA. In furtherance of said intent, Declarant may amend this Declaration without the consent of the Members at any time after the close of escrow for the first sale of a Condominium in the Project by recording a written instrument setting forth the amendment, provided that the amendment is necessary to cause this Declaration to comply with the requirements of the DRE, FHLMC, FNMA, GNMA and/or VA/FHA; provided, however, that any such amendment shall be effective only if Declarant mails (by certified or registered mail with a "return receipt" requested) a copy of the amendment to all of the foregoing entities which are, or have agreed to be, a holder, insurer or guarantor of a first Mortgage, and does not, within sixty (60) days thereafter, receive a notice of disapproval from any such entity. Said amendments shall not be recorded by Declarant until after the expiration of such sixty (60) day period. .-29130.FCM 101521 -134-
ARTICLE XVIII
ENFORCEMENT OF BONDED OBLIGATIONS
Section 1. Enforcement of Bonded Obligations. In the
event that any Improvements to the Corporation Property in a Phase have not been completed prior to the first close of escrow for a Condominium in such Phase following the issuance of a Final Subdivision Public Report by the DRE which includes such Corporation Property, and the Corporation is obliged under a bond or other arrangement (hereinafter referred to as the "Bond") to secure performance of the commitment of Declarant to complete such Improvements, the following provisions shall apply:
(a) The Board shall consider and vote on the
question of action by the Corporation to enforce the obligations under the Bond with respect to any Improvements in the Phase for which a Notice of Completion has not been filed within sixty (60) days after the completion date specified for such Improvements in the Planned Construction Statement appended to the Bond. If the Corporation has given an
extension in writing for the completion of any Corporation Property Improvement in the Phase, the Board shall consider and vote on the aforesaid question if a Notice of Completion has not been filed within thirty (30) days after the
expiration of such extension.
(b) In the event that the Board determines not to
initiate action to enforce the obligations under the Bond, or in the event the Board fails to consider and vote on such question as provided above, the Board shall call a special meeting of the Members for the purpose of voting to override such decision or such failure to act by the Board. Such meeting shall be called according to the provisions of the ByLaws dealing with meetings of the Members, but in any event, such meeting shall be held not less than thirty-five (35) days nor more than forty-five (45) days after receipt by the Board of a petition for such meeting signed by Members representing five percent (5%) of the total voting power of the Corporation. (c) The only Members entitled to vote at such
meeting of Members shall be the Owners, other than Declarant.
A vote at such meeting of a majority of the voting power of such Members, other than the Declarant, to take action to enforce the obligations under the Bond shall be deemed to be the decision of the Corporation, and the Board shall thereafter implement such decision by initiating and pursuing appropriate action in the name of the Corporation.
.-29130.FCM 101521 -135-
ARTICLE XIX
ANNEXATION OF ADDITIONAL PROPERTY
Additional property may be annexed to and become subject to this Declaration as set forth in this Article.
Section 1. Development of the Project. The Declarant
intends to sequentially develop the Annexation Property on a phased basis; however, Declarant may elect not to develop all or any portions of said Annexation Property, to annex such portions of the Annexation Property in Phases of any size or to develop more than one (1) Phase in any order and at any given time, subject to the provisions of this Article. Notwithstanding anything herein to the contrary, in the event that Declarant or any other entity continues to develop the Property or Annexation Property in accordance with the Entitlements From City existing as of the recordation of this Declaration, such future development shall be annexed into the Project.
Section 2. Annexation Pursuant to Approval. Except as
otherwise allowed pursuant to Section 3 hereinbelow, upon obtaining the approval in writing of the Corporation pursuant to the vote or written assent of sixty-seven percent (67%) of the total voting power of Corporation Members, the owner of any property who desires to annex said property to the scheme of this Declaration and to subject it to the jurisdiction of the Corporation may file of record a Notice of Annexation, as described in Section 4 of this Article.
Section 3. Annexation Pursuant to General Plan of
Development. Declarant shall have the right, subject to the provisions of this Article, to annex all or any portions of the Annexation Property (subject to the requirements of Section 1 above), thereby making such Annexation Property subject to this Declaration and to the jurisdiction of the Corporation, without the vote or written assent of the Corporation or its Members, provided and on condition that:
(a) Any annexation pursuant to this Section shall
be allowed when the proposed annexation is in substantial conformance with the overall general plan of phased development for the Project originally submitted to and reviewed by the DRE with the Phase 1 Final Subdivision Public Report application (e.g., the Annexation Property as depicted and/or described on Exhibit "B"), or as subsequently reviewed by the DRE; and
(b) A Notice of Annexation, as described in Section
4 of this Article, shall be recorded covering the designated portions of the Annexation Property.
.-29130.FCM 101521 -136-
Section 4. Notice of Annexation. The annexation of
additional property authorized under this Article shall be made in filing of record a Notice of Annexation, or similar instrument, covering said additional property, and the Notice of Annexation shall expressly provide that the scheme of this Declaration shall extend to such additional property. The Notice of Annexation may contain such complementary additions to and modifications of the Protective Covenants set forth in this Declaration which are necessary to reflect the different character, if any, of the annexed property, including, but not limited to, marketing and selling vacant Condominiums, the architectural guidelines for any construction thereon, maintenance responsibilities between the Corporation and the Owners in this annexed property and payment of Assessments, and which are fair, reasonable, and appropriate, and are not inconsistent with the general scheme of this Declaration. Except as set forth in this Section, no Notice of Annexation shall add, delete, revoke, modify or otherwise alter the Protective Covenants set forth in this Declaration. A notice of annexation may annex solely Corporation Property so long as such annexation would not violate the provisions in this Declaration regarding increases in Regular Assessments and is reviewed by the DRE.
Section 5. Effective Date of Annexation. Any Notice
of Annexation recorded on a subsequent Phase of the Project shall become effective immediately upon the first close of an escrow for the sale of a Condominium in said Phase, as evidenced by the recordation of the first instrument of conveyance for said Condominium.
Section 6. Amendments to Notice of Annexation. Notwithstanding any other provisions in this Declaration to the contrary, a Notice of Annexation may be amended by the requisite affirmative vote of the Owners for such Phase upon the vote or written consent of a majority of a quorum of the Members (and first Mortgagees, if applicable), as set forth in the Article herein entitled "General Provisions," in only the annexed property described in said Notice of Annexation, rather than by the Owners casting affirmative votes or giving written consent on behalf of a majority of all Members of the Corporation (and first Mortgagees, if applicable) in the Project, on the following conditions:
(a) Such amendment applies only to the annexed
property described in said Notice of Annexation; and
(b) Such amendment shall in no way contradict,
revoke or otherwise alter any of the Protective Covenants set forth in this Declaration.
Section 7. Right of De-Annexation. Declarant hereby
reserves the right to delete all or any portions of the Annexation Property which may be annexed to the Project pursuant to this Declaration, and to delete said property from the scheme of this Declaration and from the jurisdiction of the Corporation, provided .-29130.FCM 101521 -137-
and on condition that (i) the de-annexation shall be made prior to the first close of an escrow for the sale of a Condominium in the property to be de-annexed, (2) the de-annexation is recorded in the same manner as the applicable Notice of Annexation, (3) the Declarant has not exercised any vote with respect to any Condominium in such property, and (4) no Assessments have commenced on any portion of the property subject to the de-annexation, (5) the City has approved of such de-annexation; and (6) a draft of the revocation of Notice of Annexation has been submitted to and approved by VA/FHA, if required, and VA/FHA is a guarantor of at least one loan in the Project.
Section 8. Parties to Notice of Annexation. For so
long as Declarant has the right to annex all or any portion of the Annexation Property into the Project, each Notice of Annexation covering property owned by Declarant shall be executed only by Declarant. Declarant’s execution of any Notice of Annexation shall evidence Declarant’s consent thereto.
ARTICLE XX
DISPUTE RESOLUTION
Section 1. Resolution of Disputes Between
Corporation/Owners and Declarant. Notwithstanding any provision(s) of this Declaration to the contrary, (a) all Disputes, including, without limitation, Disputes regarding construction defects, arising between the Declarant and any Owner, shall be resolved solely in accordance with Exhibits "F" and "G" attached hereto and incorporated by this reference.
Section 2. Inspection Easements. The Declarant
reserves easements to enter any Condominium (including the Condominium Unit and any Exclusive Use Corporation Property), and the Corporation Property to inspect those areas and to conduct destructive testing referred to in California Civil Code Section 6000. However, the Declarant shall notify the Owner of the Condominium (as applicable) and/or the Corporation (if the Corporation Property is to be inspected and/or tested) of at least three (3) alternative dates and times when such inspection can take place (the earliest of which shall not be less than ten (10) days after the notification is given), and the Declarant shall give the Owner and/or Corporation (as applicable) the opportunity to specify which date and time is acceptable to the Owner and/or Corporation (as applicable). Should the Owner and/or Corporation (as applicable) not respond affirmatively with respect to one of the dates and times within five (5) days, then the Declarant may decide which of the dates and times the inspection and testing shall take place and so notify the Owner and/or Corporation (as applicable).
Alternatively, the Declarant may seek a judicial order allowing such inspection and testing to take place. Declarant shall be .-29130.FCM 101521 -138-
entitled to its reasonably incurred attorneys’ fees and be deemed the "prevailing party" should such a court order be sought and obtained. Declarant shall be obligated to fully repair any damage caused by any such destructive testing.
Section 3. No Enhanced Protection Agreement. None of
the provisions set forth in this Declaration, and none of the representations or warranties, expressed or implied, by Declarant, constitute, or shall be interpreted to constitute, an "enhanced protection agreement," as defined in Section 901 of the California Civil Code.
Section 4. Corporation Property Claims .
Notwithstanding any provision to the contrary in the Declaration regarding resolution of Disputes regarding the Corporation Property, at such time as an Owner is elected or appointed to the Board, the Declarant shall be deemed to have relinquished control over the Corporation’s ability to initiate claims regarding the Corporation Property.
Section 5. Notification by Corporation of Defects. The Board agrees that in the event of any alleged defect in any improved Corporation Property for which the Corporation believes the Declarant may be responsible, the Board will provide Declarant with written notice of such defect in accordance with Exhibits "F" and "G" attached to this Declaration.
Section 6. Awards Rendered in Construction Defects
Disputes. Any recovery by the Corporation or any Owner for any damage, to or defect in, the Corporation Property shall be utilized solely for the purpose of correcting such damage or defect.
Section 7. Special Meeting of the Corporation for
Construction Defect Disputes. Unless otherwise prohibited by law, in the event the Board decides to commence binding arbitration proceedings or decides to commence any other legal proceedings against any of the Declarant Parties (as defined in Exhibits "F" and "G" attached hereto), the Secretary shall call a special meeting of the Corporation. In addition to the information required by California Civil Code Section 6000 to be specified in the notice of such meeting, the notice shall also specify the following: (a) the estimated costs to repair the defects; (b) how the necessary repairs will be funded; (c) the name of the attorney whom the Corporation is contemplating retaining and an estimate of the attorney’s fees, consultant’s fees and any other costs to be incurred to prosecute such proceedings; (d) how such fees and costs will be funded; (e) each Member’s duty to disclose to prospective purchasers the alleged defects; and (f) the potential impact the proceedings may have on the marketability and availability of financing for Condominiums in the Project. Such notice shall be sent to all Members of the Corporation. In addition, if required by a resolution of the Board or an amendment to this .-29130.FCM 101521 -139-
Declaration approved by a majority (51%) of the Owners, the decision of the Board to commence any legal proceedings against any Declarant Party (as defined in Exhibit "G" to this Declaration) or incur any expenses, including without limitation attorneys’ fees, relating to a construction defect Dispute shall be approved by the percentage of the voting power of the Corporation residing in Members other than the Declarant specified in Exhibit "G" or such Board resolution or amendment to this Declaration. Not later than thirty (30) days before filing any civil action by the Corporation against any Declarant Party, the Corporation shall comply will all applicable legal requirements, including, but not limited to, California Civil Code Section 6150.
Section 8. AMENDMENTS. THIS ARTICLE MAY NOT BE
AMENDED WITHOUT DECLARANT’S PRIOR WRITTEN CONSENT, WHICH CONSENT MAY BE WITHHELD IN DECLARANT’S SOLE AND ABSOLUTE DISCRETION.
ARTICLE XXI
VETERANS AFFAIRS PROVISIONS FOR CONDOMINIUM PROJECTS
Section 1. Condominium Ownership. As noted above,
each Owner of a Condominium in Phase 1 shall receive title to his or her respective Condominium Unit, various easements (exclusive and nonexclusive, as set forth in this Declaration), an undivided one/^th (1/^th) fractional fee interest in the Common Area in this Phase, and a membership in the Corporation.
Section 2. Condominium Documentation. This
Declaration and any amendment or restatement hereto shall be recorded in the County. The By-Laws need not be recorded. The Corporation shall make available to all Condominium Owners, lenders, and the holders, insurers and guarantors of the first Mortgage on any Condominium, current copies of the Declaration, ByLaws, Articles, Rules and Regulations, and other books and records and financial statements of the Corporation. The Corporation shall also make available to prospective purchasers of the Condominiums current copies of the Declaration, By-Laws, Articles, Rules and Regulations, and the most recent annual audited financial statement of the Corporation, if such has been prepared. For purposes of this Section, the term "available" shall mean available for inspection, upon request, during normal business hours or under other reasonable circumstances.
Section 3. Amendments. While the Declarant is
entitled to appoint a majority of the members of the Board (as provided in the Article of this Declaration entitled "The Corporation"), any amendments to this Declaration (excluding amendments which annex Annexation Property to the Project in accordance with the general plan of development reviewed by the .-29130.FCM 101521 -140-
DRE), the By-Laws, or other enabling documentation must be approved by the Secretary of Veterans Affairs or any employee of the Department of Veterans Affairs authorized to act in the Secretary’s stead ("Secretary") if required in connection with a loan made by the Department of Veterans Affairs for a Condominium in the Project. Material amendments and extraordinary actions (as defined in VA’s regulations) must be approved in the manner specified in Section 1 of the Article of this Declaration entitled Mortgagee Protection (e.g., by 67% of the Members other than Declarant).
Section 4. Description of the Condominium Units,
Common Area, and Corporation Property. The Condominium Units, Common Area, and Corporation Property (including the overall plan of development) are described throughout this Declaration, including, without limitation, in the Articles of this Declaration entitled "Introduction to Zest," "Description of the Condominiums," etc.). Maintenance requirements for the Condominium Units and Corporation Property are set forth in the Article of this Declaration entitled "Repair and Maintenance." Any proposed annexation of Annexation Property shall be in substantial conformance with the overall general plan of development for the Project originally submitted to and reviewed by the DRE with the Final Subdivision Public Report application for the first Phase of the Project, or as subsequently accepted by the DRE.
Section 5. Corporation’s Right of Termination of
Certain Contracts. In the event the Corporation executes any of the following contracts prior to the Owners’ election of at least a majority of the Board, the contract must allow termination by the Board, without payment of a termination fee or any other penalty, upon not more than ninety (90) days’ notice to the other party to the contract:
(a) Any management contract, employment contract or
lease of recreational or parking areas or facilities; or (b) Any contract or lease of recreational or
parking areas or facilities.
Section 6. Corporation’s Right of Entry and Other
Rights. If applicable and consistent with the Corporation’s maintenance obligations of the Condominiums as set forth herein, the Corporation shall have the immediate right (without notice to the Owner) to enter upon or within any Owner’s Condominium Unit and Exclusive Use Corporation Property, and/or the Corporation Property to effect emergency repairs, and shall have the right, after reasonable notice to the Owner and at a reasonable hour of the day, to enter upon or within any Owner’s Condominium Unit and Exclusive Use Corporation Property, and/or the Corporation Property to effect other repairs, improvements, replacement or maintenance (as necessary) for which the Corporation has responsibility under this Declaration or the law. As set forth herein, including in the .-29130.FCM 101521 -141-
Article of this Declaration entitled "Powers and Duties of the Corporation," the Corporation shall have such other rights and powers as are reasonably necessary to the ongoing development and operation of the Project, including without limitation, the right to grant utility easements under, through or over the Corporation Property.
Section 7. Assessments. Provisions addressing each
Owner’s responsibility for, and the Corporation’s authority to levy and enforce the collection of, Assessments are set forth in the Article of this Declaration entitled "Assessments." Notwithstanding any other provisions in this Declaration, a lien for Assessments shall not be affected by any sale or transfer of a Condominium, except that a sale or transfer of any Condominium pursuant to judicial or nonjudicial foreclosure of a first Mortgage guaranteed by VA shall extinguish a subordinate lien for Assessments which became payable prior to such sale or transfer. Any such sale or transfer pursuant to a judicial or nonjudicial foreclosure shall not relieve the purchaser or transferee of the Condominium from liability for, not the Condominium so sold or transferred from the lien of, any Assessments thereafter becoming due.
Section 8. Reserves and Working Capital. The initial
purchasers of Condominiums from Declarant in the Project will not be required to contribute to the working capital of the Corporation. This Declaration contains provisions designed to ensure that the Corporation has sufficient reserves and working capital.
Section 9. Voting Rights. Provisions addressing each
Owner’s voting rights, including the allocation of a portion of the votes in the Corporation to each Owner, are set forth in the Article of this Declaration entitled "The Corporation." Section 10. Easements. Nothing in this Declaration
restricts an Owner’s right of ingress or egress to the Owner’s Condominium Unit. As provided in the Article of this Declaration entitled "Reservation of Easements and Other Property Rights in the Corporation Property," easements for encroachment have been reserved in favor of each Owner. As provided in the Article of this Declaration entitled Mortgagee Protection, in the event any portion of the Corporation Property encroaches upon any Condominium Unit or any Condominium Unit encroaches upon the Corporation Property as a result of the construction initially performed by Declarant, reconstruction, repair, shifting, settlement or movement of any portion of the Project, a valid easement for the encroachment and for the maintenance of the same shall exist so long as the encroachment exists.
Section 11. Restrictions on Alienation. As set forth
in the Article of this Declaration entitled "Mortgagee Protection," .-29130.FCM 101521 -142-
the right of an Owner to sell, transfer or otherwise convey the Owner’s Condominium shall not be subject to any right of first refusal or any similar restriction in favor of the Corporation.
Section 12. Rights of Action. As noted below, the
Corporation and each Owner shall have the right to enforce, by proceedings at law or in equity, all of the Protective Covenants now or hereafter imposed by this Declaration and the By-Laws, respectively (and the Rules and Regulations duly adopted by the Corporation), including, without limitation, the right to prosecute a proceeding at law or in equity against the person or persons who have violated, or are attempting to violate, any of said Protective Covenants, to enjoin or prevent them from doing so, to record a notice of non-compliance, to cause said violation to be remedied and/or to recover damages for said violation; provided, however, that with respect to Assessment liens, the Corporation shall have the exclusive right to the enforcement thereof.
Section 13. Miscellaneous Requirements.
(a) Declarant Transfer of Control of Corporation. The
Declarant’s Class B membership shall cease and be converted to Class A membership, and the Declarant’s right to solely appoint a majority of the members of the Board shall terminate, within the time periods specified in Sections 2 and 3 of the Article of this Declaration entitled "The Corporation." (b) Taxes. As set forth in the Article of this Declaration entitled "Mortgagee Protection," all taxes, Assessments and charges which may become liens prior to the first Mortgage under local law shall relate only to individual Condominiums, and not to the Project as a whole.
(c) Corporation By-Laws. The Corporation’s By-Laws
shall contain sufficient provisions for the successful
governance of the Corporation, including, among things, adequate provisions for the election and removal of directors and officers of the Corporation.
(d) Insurance. The Corporation and each Owner shall be
required to maintain insurance as set forth herein, including the Article of this Declaration entitled "Insurance."
(e) Annexation of Additional Property. Additional
property may be annexed into the Project as set forth in the Article of this Declaration entitled "Annexation of Additional Property." The quality of construction of all Improvements in any property annexed to the Project must be substantially consistent with the quality of construction of the
Improvements in Phase 1. The annexation of additional
property to the Project must not affect the statutory validity of the Project as a condominium project or the validity of .-29130.FCM 101521 -143-
title to the Condominiums. Any proposed annexation of
Annexation Property shall be in substantial conformance with the overall general plan of development for the Project originally submitted to and reviewed by the DRE with the Final Subdivision Public Report application for the first Phase of the Project, or as subsequently reviewed by the DRE. As set forth below, the Declarant’s right to annex the Annexation Property to the Project pursuant to the overall general plan of development for the Project originally submitted to and reviewed by the DRE shall terminate on the latter of the date which is seven (7) years after the date of the recordation of this Declaration. Except as otherwise stated herein, the Project may not be merged with a successor condominium regime without prior written approval of the Secretary.
(f) Minimum and Maximum Percentages of Undivided
Interests in the Common Area. As noted above, each Owner of a Condominium in Phase 1 will receive an undivided one/^th (1/^th) fractional fee interest in the Common Area in Phase 1, and each Owner of a Condominium in a subsequent Phase annexed to the Project will receive an undivided fractional fee interest in the Common Area of such Phase equal to the ratio of his Condominium to the total number of Condominiums in such Phase. Phase 1 of the Project as set forth in the general plan of development currently reviewed by the DRE, will contain a total of ^____ (^) Condominiums. If all of the Annexation Property is annexed into the Project as set forth in the general plan of development currently accepted by the DRE, the Project will contain a total of one hundred and fifty-one (151) Condominiums, Common Area, and Corporation Property. The basis for reallocation of each Owner’s common expense liabilities and voting rights in the event of annexation of the Annexation Property is set forth in the Article entitled "The Corporation" and the Article entitled "Assessments" of this Declaration. (g) Professional Management. As noted above, any
agreement for professional management of the Project or any agreement whereby the Declarant will provide services to the Corporation may not exceed one (1) year, renewable by agreement of the parties for successive one (1) year periods, unless approved by either a vote or written assent of a majority of the Corporation’s voting power or by VA or FHA, in which case the maximum term of the management contract is three (3) years. Any such agreement must provide for termination by either party with or without cause and without payment of a termination fee on thirty (30) days’ or ninety (90) days’ or less, respectively, written notice.
(h) Corporation’s By-Laws. The Corporation’s By-Laws
must conform with the following requirements:
.-29130.FCM 101521 -144-
(1) Notices of Meetings. The By-Laws must provide
that meetings of the Members of the Corporation regarding material amendments or extraordinary actions (as defined in VA’s regulations) will be held on at least twenty-five (25) days advance notice to all Members and that meetings for all other purposes will be held on at least seven (7) days notice. The notice must state the purpose of the
meeting and contain a summary of any material amendments or extraordinary actions proposed. If proxies are
permitted, the notice must contain a copy of the proxy
that may be cast in lieu of attendance at the meeting.
The quorum for any such meeting must be at least twenty (20) percent of the total number of votes.
(2) Election, Removal, and Replacement of Board of
Directors of Corporation. The By-Laws may not alter the provisions for election (or appointment by Declarant) of Board members of the Corporation set forth in this
Declaration. In addition, the By-Laws shall be
substantially consistent with the following provisions:
i) Removal of Board Members of the
Corporation. At any regular or special meeting
duly called, any one (1) or more of the Directors
of the Corporation may be removed, with or without
cause, as provided herein, and a successor may then
and there be elected to fill the vacancy so
created. Unless the entire Board is removed from
office by the vote of Corporation Members, an
individual Director shall not be removed prior to
the expiration of his term of office if the number
of votes cast against his removal would be
sufficient to elect the Director if voted cumulatively at an election at which the same total number of votes were cast and the entire number of
Directors authorized at the time of the most recent
election of the Director were then being elected. A
Director who has been elected to office solely by
the votes of Members of the Corporation, other than
the Declarant, may be removed from office prior to
the expiration of his term of office only by the
vote of at least a simple majority of the voting
power residing in Members, other than the
Declarant.
ii) Vacancies on Board of Directors of
Corporation. Vacancies on the Board caused by any
reason, other than the removal of a Director by a
vote of the Corporation, shall be filled by vote of
a majority of the remaining Directors, even though
they may constitute less than a quorum, and each
Director so elected shall serve for the remainder
.-29130.FCM 101521 -145-
of the term of the Director he/she replaces; provided, however, that for as long as the Declarant has the right to appoint a majority of the Board
members under the By-Laws, the Declarant may appoint a new Board member to fill any vacancy resulting from the resignation of a Board member previously appointed by the Declarant without the
approval of the remaining Directors. In the event
that a majority of the remaining Directors are
unable to agree upon a successor within fifteen
(15) days following the occurrence of a vacancy, a
special election to fill the vacancy shall then be
held in accordance with the terms provided in the
Article herein entitled "Nomination and Election of
Directors," in accordance with the secret ballot
procedures set forth in the By-Laws and California
Civil Code Sections 5100-5130.
ARTICLE XXII
GENERAL PROVISIONS
Section 1. Enforcement.
(a) Enforcement Rights. The City, Corporation,
and/or the Owner of any Condominium in the Project, including the Declarant, shall have the right, but not the obligation, to enforce, by proceedings at law or in equity, any or all of the covenants imposed by this Declaration, as well as the Water Quality Management Plans, including, without limitation, the right to prosecute a proceeding, at law or in equity, against the person or persons who have violated, or are attempting to violate, any of said covenants, to enjoin or prevent them from doing so, to cause said violation to be remedied and/or to recover damages for said violation. In accordance with any applicable ordinance of the City, the City may be allowed to maintain the Condominiums and place a special assessment on the tax bills of the individual
Condominium Owners in the event said Owners fail to maintain said Condominiums in accordance with the provisions of this Declaration.
(b) Violation of Covenant Deemed Nuisance. The
result of every act or omission whereby any of the covenants contained in this Declaration are violated, in whole or in part, is hereby declared to be and constitutes a nuisance, and every remedy allowed by law or equity against a nuisance, either public or private, shall be applicable against every such result and may be exercised by the City or by any Owner, including the Declarant, or by such Owner’s successors in interest.
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(c) Remedies Are Cumulative. The remedies herein
provided for breach of the covenants contained in this Declaration shall be deemed cumulative, and none of such remedies shall be deemed exclusive.
(d) Failure to Enforce Covenants. The failure of
the City or any Owner, including the Declarant, to enforce any of the covenants contained in this Declaration shall not constitute a waiver of the right to enforce the same thereafter. (e) Effect of Breach on Mortgagees. A breach of the
covenants contained in this Declaration shall not affect or impair the lien or charge of any bona fide mortgage or deed of trust made in good faith and for value on any Condominium; provided, however, that any subsequent Owner of such
Condominium shall be bound by said covenants, whether or not such Owner’s title was acquired by foreclosure, a trustee’s sale or otherwise.
(f) Fines. Each Owner agrees, by the acceptance of
his deed, that recovery of damages at law for any breach of the provisions of this Declaration would not be an adequate remedy. In order to encourage compliance, deter noncompliance, and enable the effective enforcement of this Declaration, the Declarant (so long as Declarant owns any Condominium within the Project) and/or the Corporation is authorized to establish and collect fines and penalties, in addition to any fines and penalties which may be imposed by the City pursuant to the appropriate authority of applicable municipal codes, for the breach of any provision of this Declaration which is not cured or which reoccurs after the violating Owner has received written notification of said violation. The fines and penalties shall be determined by taking into account the: (1) violation, (2) desirability of deterring future violations, (3) the expense related to alternative legal action, and (4) all other reasonable related factors.
(g) Prefiling Requirements. Prior to filing a civil
action by an Owner solely for declaratory relief or injunctive relief, or for declaratory relief or injunctive relief in conjunction with a claim related to the enforcement of this Declaration, the parties may be required to comply with Civil Code Section 5925 et seq., if applicable. Failure to comply with the prefiling requirements of Section 5925 et seq. of the Civil Code may result in the loss of the right to sue regarding enforcement of the applicable Governing Documents. Upon motion by any party for attorneys’ fees and costs as the prevailing party, the court, in determining the amount of the award, may consider a party’s refusal to participate in alternative dispute resolution prior to the filing of the action.
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(h) Penalties. Except as expressly prohibited by
law, the Board, for and on behalf of the Corporation, may assess monetary penalties against an Owner as a Compliance Assessment and/or temporarily suspend said Owner’s rights (e.g., parking in the guest parking spaces in the Project) for the period during which any Assessment against said Owner’s Condominium remains unpaid; provided, however, the requirements for Notice and Hearing set forth in the By-Laws shall be followed with respect to the accused Owner before a decision to impose discipline is reached.
(i) Suspension. Except as expressly prohibited by
law, the Board, for and on behalf of the Corporation, may, after Notice and Hearing, temporarily suspend an Owner’s rights for a period not to exceed thirty (30) days for any infraction of the Corporation’s published Rules and Regulations; provided, however, the requirements for Notice and Hearing set forth in the By-Laws shall be followed with respect to the accused Owner before a decision to impose discipline is reached. (j) Additional City Rights. In addition to the
above general rights of enforcement, the City shall have the right, through its agents and employees, to enter upon any part of the Project for the purpose of enforcing the
California Vehicle Code and its local ordinances and, if the Corporation fails to maintain the Corporation Property in violation of this Declaration, to maintain the exterior portions of the Corporation Property at the expense of the Corporation in accordance with the City’s Municipal Code, as applicable, and is hereby granted an easement over the Project for those purposes. Nothing in this Section is intended to, nor shall it obligate, the City to take enforcement action; any such enforcement action shall be a the City’s sole
discretion and election.
Section 2. Severability. Invalidation of any one of
these Protective Covenants by judgment or court order shall in no way affect any other provisions hereof, which shall remain in full force and effect.
Section 3. Term. The Protective Covenants set forth
in this Declaration shall run with and bind the Project, and shall inure to the benefit of the Corporation and be enforceable by the Board or the Owner of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of sixty (60) years from the date this Declaration is recorded, after which time said Protective Covenants shall be automatically extended for successive periods of ten (10) years, unless an instrument, signed by a majority of the then Owners agreeing to terminate said Protective Covenants, in whole or in part, has been recorded within one (1) year prior to the termina- .-29130.FCM 101521 -148-
tion of the initial sixty (60) year term, or within one (1) year prior to the termination of any successive ten (10) year period.
Section 4. Covenants Running With The Land. Each of
the covenants provided for in this Declaration shall be deemed to be established upon the recordation of this Declaration, and shall henceforth be deemed to be covenants running with the land for the use and benefit of the Condominiums, and superior to all other encumbrances applied against or in favor of any portion of the Project which are the subject of this Declaration. In furtherance of the easements provided for in this Declaration, the individual grant deeds to the Condominiums may, but shall not be required to, set forth said easements. This Declaration, and each of the covenants, conditions, restrictions, reservations, easements, liens and charges, shall inure to the benefit of and be binding upon the Owners of any Condominium in this Project, and their successors, assigns, and grantees, for such duration and according to such terms and provisions as set forth in this Declaration.
Section 5. Construction. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and maintenance of the Project. The Article and Section headings have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.
Section 6. Singular Includes Plural. Whenever the
context of this Declaration may so require, the singular shall include the plural, and the masculine shall include the feminine and neuter.
Section 7. Amendments.
(a) Amendments by Declarant. Prior to the close of
escrow for the sale of a Condominium to a member of the public, in accordance with a Final Subdivision Public Report issued by the DRE, this Declaration may be amended, restated or terminated by an instrument executed by Declarant.
Notwithstanding any other provisions of this Declaration, for so long as Declarant owns any portion of the Property or the Annexation Property, Declarant may unilaterally amend this Declaration (so long as such an amendment does not require prior written consent of the Real Estate Commissioner as set forth in Business and Professions Code Section 11018.7, e.g., a material change to the rights of ownership, possession or use), to (i) conform this Declaration to the requirements of VA/FHA, the DRE, FNMA, FHLMC, GNMA, the County, City, State or Federal laws or regulations or any other governmental agency or entity then in effect, (ii) correct typographical or inadvertent errors in the Declaration and/or Exhibits attached thereto, (iii) record any maintenance standards and/or
obligations of the Corporation and Owners, and (iv) supplement .-29130.FCM 101521 -149-
this Declaration with provisions which pertain to rights and obligations of Declarant, the Corporation or Owners arising under Division 2, Part 2, Title 7 (commencing with Section 895) of the California Civil Code.
(b) Amendments by Corporation. Except as otherwise
provided herein (e.g., Section [a] above), and all applicable provisions of law (e.g., the provisions of California Civil Code Section 5100 et seq. regarding secret ballots), this Declaration may be amended only by an affirmative vote of Owners representing not less than sixty-seven percent (67%) of the Class A voting power and the Class B voting power of the Corporation. At such time when the Class B membership shall cease and be converted to Class A membership, any and all amendments to this Declaration shall be enacted by requiring the vote or written assent of Owners representing both: (a) sixty-seven percent (67%) of the total voting power of the Corporation, and (b) sixty-seven percent (67%) of the votes of Members, other than the Declarant; provided, however, that the percentage of the voting power necessary to amend a specific provision shall not be less than the percentage of affirmative votes prescribed for action to be taken under said provision, and no amendment of a provision of this Declaration which requires the approval or consent of Declarant may be made without the written approval of Declarant (e.g., provisions pertaining to the resolution of Disputes, Maintenance Guidelines, Maintenance Manual, Maintenance Recommendations, etc.).
Any Owner or the Corporation may petition the Superior Court of the County for an order reducing the necessary percentage required under this Section to amend this Declaration;
provided, however, that under no circumstances shall any provision requiring the consent of the Declarant be amended without such consent. The procedure for effecting this
petition is set forth in Section 4275 of the California Civil Code, as the same may be amended, from time to time.
(c) Approval of Mortgagees. In addition to the
rights of first Mortgagees, as set forth in the Article herein entitled "Mortgagee Protection," in the event that FNMA or VA/FHA participates in the financing of Condominiums in the Project, the written consent of not less than fifty-one percent (51%) of the first Mortgagees shall be required for any amendment of a "material" nature. An amendment which affects or purports to affect any of the following is
considered material:
(1) The legal status of the Project as a
condominium project;
(2) Voting rights;
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(3) Increases in Assessments that raise the
previously assessed amount by more than twenty-five
percent (25%), assessment liens or the priority of
assessment liens, including the levy and collection
thereof, enforcement provisions for nonpayment and
subordination of liens for nonpayment;
(4) Reduction in reserves for maintenance,
repair and replacement of Corporation Property;
(5) Responsibility for Corporation Property
maintenance and repair;
(6) Reallocation of interests in the
Corporation Property or rights to use the Corporation
Property;
(7) Boundaries of any Condominium;
(8) Convertibility of Corporation Property
into Condominiums or Condominiums into Corporation
Property;
(9) Expansion or contraction of the Project,
or addition, annexation or de-annexation of additional
property to or from the Project;
(10) Reduction of insurance or fidelity bonds
requirements;
(11) Increased restrictions on the leasing of
Condominiums;
(12) Restrictions on alienation, including, but
not limited to, rights of first refusal;
(13) Any decision by the Corporation to establish self-management, if professional management was previously required by an eligible first Mortgagee or
legal documents governing the Project;
(14) Restoration or repair of the Project in a
manner other than as specified in this Declaration;
(15) Any action to terminate the legal status
of the Project after substantial destruction or condemnation occurs; and (16) Mortgagee protection provisions as set
forth in that Article hereinabove entitled "Mortgagee
Protection," and such other provisions in this Declaration for which the consent of Mortgagees shall be re- .-29130.FCM 101521 -151-
quired or which are expressly for the benefit of Mortgagees, insurers or guarantors of Mortgages.
An addition or amendment to this Declaration shall
not be considered material if it is for the purpose of
correcting technical errors or for clarification only. In the event the Corporation is considering termination of the legal status of the Project for reasons other than the substantial destruction or condemnation of the Project, then sixty-seven percent (67%) of the first Mortgagees must agree to said termination. Notwithstanding the foregoing, in the event any first Mortgagee receives a written request, delivered by certified or registered mail with return receipt requested, from the Board to approve any amendment to this Declaration, and such first Mortgagee does not deliver a negative response in writing to the Board within sixty (60) days of the mailing of such request by the Board, such first Mortgagee shall be deemed to have approved such proposed amendment.
(d) Approval by City. The Declarant or the
Corporation shall forward, or cause to be forwarded, to the City a written notice of any proposed amendment affecting the rights of the City under this Declaration or termination of this Declaration. Notwithstanding the foregoing, in the event the City receives a written request, delivered by certified or registered mail with return receipt requested, from the Board to approve any proposed amendment to this Declaration, and the City does not deliver a negative response in writing to the Board within forty-five (45) days of the mailing of such request by the Board, the City shall be deemed to have approved such proposed amendment. The Declarant or the Corporation shall transmit a copy of the final approved amendment to the City within thirty (30) days after the final approved amendment becomes effective. This Declaration may not be terminated without the prior writtent approval of the City, which the City may withhold in its reasonable discretion. (e) Recordation of Amendments. An amendment made in
accordance with the provisions set forth hereinabove, except any amendment pursuant to paragraph (a), shall be effective when executed by the President and Secretary of the Corporation, who shall certify that the amendment has been approved by the membership and, where appropriate, by the first
Mortgages, in the percentages set forth hereinabove, and recorded in the Office of the County Recorder. Upon such recordation, the amendment shall be effective and binding upon all Owners and all Mortgagees, regardless of whether such Owner or such Mortgagee consented to such amendment.
Section 8. Encroachments. None of the rights and obligations of the Owners created herein or by the deed shall be altered in any way by encroachments due to settlement or shifting of .-29130.FCM 101521 -152-
structures or any other cause. There shall be valid easements for the maintenance of said encroachments so long as they shall exist; provided, however, that in no event shall a valid easement for encroachment be created in favor of an Owner if said encroachment occurred due to the willful conduct of said Owner.
Section 9. Notices. Any notice permitted or required
to be delivered as provided herein shall be in writing and may be delivered either personally or by mail. If delivery is made by first-class, registered or certified mail, it shall be deemed to have been delivered forty-eight (48) hours after a copy of the same has been deposited in the United States mail, postage prepaid, addressed to any person at the address given by such person to the Corporation for the purpose of service of such notice, or to the Condominium of such person if no address has been given to the Corporation. If such notice is not sent by first-class, registered or certified mail, it shall be deemed to have been delivered when received. Such address may be changed, from time to time, by notice in writing to the Corporation.
Section 10. Attorneys’ Fees. Except as otherwise
provided in this Declaration, or the Limited Warranty, in the event the Board, Corporation, or any Owner of a Condominium shall commence legal proceedings against the Owner of any other Condominium to enforce the covenants of this Declaration, or to declare rights hereunder as the result of any breach, or claim of breach, of said covenants, the prevailing party shall recover the cost of the suit, arbitration, or alternative dispute resolution, in addition to its costs of suit, including reasonable attorneys’ fees, as may be fixed by the court. In addition, if any Owner defaults in making a payment of Assessments, and the Corporation has obtained the services of an attorney in connection therewith, the Owner covenants and agrees to pay to the Corporation any costs or fees incurred, including reasonable attorneys’ fees, regardless of whether dispute resolution proceedings are instituted.
Section 11. Mergers or Consolidations. Upon a merger
or consolidation of the Corporation with another association, the Corporation’s properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Corporation as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer and enforce the Protective Covenants established by this Declaration governing the Project, together with the covenants and restrictions established upon any other property as one plan.
Section 12. Declarant’s Notices and Elections Pursuant
to Right to Repair Law. Declarant’s notices and elections pursuant to the Right to Repair Law, California Civil Code Section 895 et .-29130.FCM 101521 -153-
seq. (dealing with construction disputes), are attached hereto as Exhibit "F" attached hereto and incorporated by this reference.
Declarant, each Owner (by acceptance of a deed to a Condominium from Declarant or any subsequent Owner), and the Corporation (by acceptance of a deed to the Corporation Property) agree to be bound by the provisions of Exhibit "F."
Section 13. Non-Adversarial Prelitigation Procedures,
Mediation, and Binding Dispute Resolution of Disputes. Nonadversarial prelitigation procedures for the resolutions of Disputes are set forth in Exhibit "G" attached hereto and incorporated by this reference. If the prelitigation procedures do not resolve a Dispute, or if a Dispute is not subject to the prelitigation procedures, then the Dispute shall be submitted to mediation in accordance with Exhibit "G" attached hereto. If the Dispute is not resolved by mediation, the Dispute shall be resolved by judicial reference or binding arbitration in accordance with the procedures specified in Exhibit "G." Declarant, each Owner (by acceptance of a deed to a Condominium from Declarant or any subsequent Owner), and the Corporation (by acceptance of a deed to the Corporation Property) agree to be bound by the provisions of Exhibit "G."
Section 14. No Representations or Warranties. No
representations or warranties of any kind, express or implied, have been given or made by Declarant, or its agents or employees, in connection with the Project, or any portion thereof, its physical condition, zoning, compliance with applicable laws, fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof as a condominium project, except as specifically and expressly set forth in this Declaration, and except as may be filed by Declarant, from time to time, with the DRE.
Section 15. Project Disclosures. The following
disclosures are made to facilitate each Owner’s investigation of the Project prior to purchasing a Condominium in the Project. The disclosures are not exhaustive, and no warranty or representation of any kind or nature is made in connection with the disclosures.
The information set forth in the disclosures may change over time.
By acceptance of a deed to a Condominium in the Project, each Owner acknowledges and agrees that such Owner is responsible for investigating all matters of interest to such Owner prior to completing the purchase of a Condominium in the Project.
(a) Conditions of Approval. The Project is subject
to the Entitlements From City. Neither this Declaration nor any contract of sale, lease, or other written document or any means or method shall be established, or shall attempt to establish, any requirement, restriction, or limitation on the Declarant, or any person, individual or entity, which would operate, directly or indirectly, to prevent or preclude any .-29130.FCM 101521 -154-
other developers of the Property or Project, or any person, individual, or entity, in complying with all applicable conditions for the approval of the tentative map and
development of the Project and other City ordinances, rules, policies, or regulations. As required by the City, the
Corporation (e.g., through its property management company) shall enforce the provisions of this Declaration included for the City’s benefit (i.e., as set forth in the City’s
conditions for the approval of Vesting Tentative Tract Map (TTM) 83178, as set forth in City Council Resolution No. 2021- 68, and the City’s conditions for the approval of Site Plan Review (SPR) 20-34, as set forth in City Council Resolution No. 2021-68). In addition, the City shall have the right, but not the obligation, to enforce the provisions of this
Declaration to ensure that the Project complies with the Entitlements From City.
(b) Airports. The Project is located in the
vicinity of several airports (e.g., Brackett Field, San Gabriel Valley Airport, Fullerton Municipal Airport, etc.).
Although the Project is not currently located within what is known as an airport influence area (i.e., an area in which current or future airport-related noise, overflight, safety, or airspace protection factors may significantly affect land uses or necessitate restrictions on those uses as determined by an airport land use commission), the Project may be subject to some of the annoyances or inconveniences associated with proximity to airport operations (for example: noise,
vibration, or odors). Individual sensitivities to those annoyances can vary from person to person. Each Owner of the Project may wish to consider what airport annoyances, if any, are associated with the Project before completing the purchase of a Condominium to determine whether they are acceptable.
Declarant makes no warranties or representations of any kind or nature, express or implied, regarding any airport,
including, without limitation, any warranties or
representations regarding the potential for any expansion or change in use of the airport, types of aircraft permitted at the airport, flight paths of aircraft, or hours of operation of the airport. Each Owner is responsible for investigating such matters to the Owner’s full and complete satisfaction prior to completing the purchase of a Condominium in the Project.
(c) Community Facilities District. As required by
the City, the Project has been annexed into Community
Facilities District 2007-01 (the "CFD") for the purpose of financing the Project’s proportionate share of the cost for police response, fire and emergency medical response, and park services. As a result, each Owner will be required to pay special taxes to the community facilities district in addition to the other taxes shown on the Owner’s property tax bill. .-29130.FCM 101521 -155-
Although Declarant may provide Owners with additional
information regarding the community facilities district, each Owner is solely responsible for investigating these matters to the Owner’s full and complete satisfaction prior to completing the purchase of a Condominium in the Project.
(d) Landscape and Lighting District. As required
by the City, the Project has been annexed into a Landscape and Lighting District. The landscaped areas benefiting the Project that will be maintained by the Landscape and Lighting District are described and/or depicted on Exhibit "N" attached hereto and incorporated by this reference. Each Owner will be
required to pay special assessments to the landscape and lighting district in addition to the other taxes shown on the Owner’s property tax bill. Although Declarant may provide Owners with additional information regarding the landscape and lighting district, each Owner is solely responsible for investigating these matters to the Owner’s full and complete satisfaction prior to completing the purchase of a Condominium in the Project.
(e) Limited Parking. Parking in and near the
Project is limited. Owners and other residents of the Project are required to park in their garages and may not park in the guest parking spaces in the Project. The guests of residents of the Project may park in the guest parking spaces in the Project , on a first-come, first-served basis, in accordance with the Rules and Regulations. Due to the limited number of guest parking spaces in the Project, the guests of a resident of the Project may be required to park on public streets near the Project (on which the time for parking may be restricted) or in the resident’s garage. Declarant makes no warranties or representations of any kind or nature, express or implied, regarding the availability of parking spaces in or near the Project.
(f) Railroad Tracks. Railroad tracks are located
in the vicinity of the Project. Trains may travel on the railroad tracks and sound their horns, whistles, or bells at all times of the day and night. Train cars may be unhitched and hitched on portions of the railroad tracks in the vicinity of the Project. Owners and other residents of the Project may experience, and/or be exposed to, significant noise, odors, air pollution, diesel fumes, visual blight, bright lights, vibrations, traffic congestion, wind, dirt, debris, and other adverse impacts relating to the operation and maintenance of the railroad tracks. In addition, the trains and railroad tracks may pose various safety hazards (e.g., hazards
resulting from chemical spills, collisions, etc.). Unsupervised children should not be allowed near the railroad tracks.
Declarant has no control over the operation and maintenance of the trains or the railroad tracks. Each Owner is responsible .-29130.FCM 101521 -156-
for investigating all matters of interest to the Owner
regarding the trains and railroad tracks to the Owner’s full and complete satisfaction prior to completing the purchase of a Condominium in the Project.
(g) Noise. The Project is located in an urban
environment in close proximity to many different uses (e.g., Southern California Edison lines, industrial uses, citrus packing/processing plant, senior housing complex, etc.).
Living in a condominium project within a densely populated community entails living in close proximity to other persons and businesses, with attendant limitations on solitude.
Although measures may be taken by the Declarant to mitigate noise impacts in the Project, the buildings are not sound and/or odor proof, and noises and/or odors from adjacent Condominiums, the Corporation Property, and surrounding areas may be heard and smelled. Owners and other residents of the Condominium Units may experience significant noise and vibrations, bright lights (e.g., exterior night lighting), and other adverse impacts relating to the use of the Community and surrounding areas. Owners and other residents may also
experience light entering the residences from street lights located in proximity to the windows and doors of the
residences. Declarant has no control over the transmission of noise or light and their potential effects on residences within the Project.
(h) Cell Tower. Declarant is informed that a
wireless telecommunications facility is currently located in vicinity of the Project. Each Owner is responsible for
investigating this matter to the extent the Owner deems appropriate prior to completing the purchase of a Condominium in the Project.
(i) Power Poles and Lines. Underground and
overhead electric transmission and distribution lines and transformers are located in and around the Project. Power lines and transformers produce low-frequency electromagnetic fields ("ELF-EMF") when operating. Declarant makes no
warranties or representations regarding any powers poles or lines, including, without limitation, any warranties or representations regarding the operation, maintenance, or safety of, or the risks or hazards associated with, such power poles and lines. Each Owner is responsible for investigating this matter to the extent the Owner deems appropriate prior to completing the purchase of a Condominium in the Project. (j) Board’s Authority to Commence Construction
Defect Legal Proceedings. Construction defect disputes are often resolved amicably, without the costs and other potential adverse impacts of legal proceedings (including, without limitation, the potential impact the legal proceedings may .-29130.FCM 101521 -157-
have on the marketability and availability of financing for Condominiums in the Project). Thus, to ensure that home owners had a say in whether legal proceedings should or should not be commenced, it was common in the past for Governing Documents to include a requirement that the board of directors of a homeowners association obtain the approval of its members before commencing any legal proceeding relating to a
construction defect dispute. However, as a result of the enactment of Civil Code Section 5986, that type of requirement is now prohibited.
In compliance with Civil Code Section 5986, this
Declaration does not require the Board to obtain the approval of the Corporation’s Members before commencing any legal proceeding or incurring any expenses, including attorneys’ fees, relating to a construction defect dispute. However, pursuant to Civil Code Section 5986(c), this Declaration provides that the Members (other than Declarant) may amend this Declaration to require that the Board obtain the approval of 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 expenses, including attorneys’ fees, relating to a construction defect Dispute. In addition, this Declaration gives the Board the discretionary authority to require the approval of the Members (other than the Declarant) before the Board decides to commence any such legal proceeding.
(k) Waiver. Each Owner, for and on behalf of
himself and the members of his family, his tenants, lessees, guests and invitees, expressly approve all of the foregoing conditions and risks, and waives all causes of action and covenants not to sue the City, the Declarant, and their respective directors, officers, members, employees, agents and consultants for any damages or injuries which may arise from or relate to any of such conditions and/or risks.
Section 16. Conflicts in Governing Documents For the
Project. In the event of any conflict between and/or among the provisions of any of the Governing Documents for the Project, this Declaration shall be deemed to supersede the provisions of any conflicting Governing Documents, including, without limitation, the By-Laws, architectural standards, if any, and the Rules and Regulations, if any.
Section 17. Davis-Stirling Common Interest Development
Act. Notwithstanding the provisions set forth in this Declaration, various laws (including, but not limited to, the Davis-Stirling Common Interest Development Act, Sections 4000, et seq., of the California Civil Code, and the Federal Fair Housing Act, Title 42 United States Code, Sections 3601, et seq., as such laws may be .-29130.FCM 101521 -158-
amended, from time to time), may supplement or override the provisions of this Declaration. This Declaration shall be interpreted and construed to be consistent with such applicable laws, as same may be amended, from time to time, and, accordingly, in addition to the provisions set forth above, Declarant makes no representations or warranties regarding the future enforceability of the provisions of this Declaration.
Section 18. Exhibits. Each and every Exhibit
referenced herein and attached to this Declaration is incorporated herein by this reference as if set forth herein in full; except that the sample form of Limited Warranty attached as Exhibit "E" to this Declaration is provided for illustrative purposes only. All depictions in such Exhibits are for illustrative purposes only, and the "as-built" condition by Declarant shall be controlling.
Notwithstanding any depiction in an Exhibit, the Corporation shall not be responsible for the maintenance of any Corporation Property in a Phase until such Phase has been annexed into the Project and Assessments have been levied by the Corporation for the maintenance of the Corporation Property in such Phase.
Section 19. Maintenance Standards. The Corporation
and each Owner shall maintain everything he/she/it/they is/are obligated to maintain in a manner consistent with the provisions herein and in the Declaration and in conformance with any "Maintenance Recommendations/Schedules" (i.e., procedures, standards, and/or schedules for the maintenance and operation which may be provided to said Owner and/or the Corporation by Declarant, as such procedures, standards, and/or schedules may be updated and revised as appropriate), product manufacturers’ recommendations and guidelines, and commonly accepted maintenance standards. Unless otherwise provided in such Maintenance Recommendations/Schedules, product manufacturers’ recommendations and guidelines, or in this Declaration, each Owner and the Corporation, as applicable, shall determine the level and frequency of maintenance. The Board shall provide to Declarant, for a period of ten (10) years following the last close of escrow for a Condominium, and within thirty (30) days after the Corporation’s receipt of a written request therefor from the Declarant, the report noted in the Declaration (if such report is prepared).
Section 20. Declarant’s Representative. During the
time period commencing on the date on which Declarant no longer has an elected representative on the Board and continuing until the date that is ten (10) years after the date of the last close of escrow in the Project, the Declarant shall have the right to take the following actions through a representative ("Declarant’s Representative"):
(a) Books and Records. The Declarant’s
Representative shall have the same rights as any Owner/Member to inspect and copy the Corporation’s books and records, .-29130.FCM 101521 -159-
including, without limitation, maintenance records. If the Corporation or its property manager maintains any books and records on a website accessible by Owners/Members, the
Declarant’s Representative shall have the same rights as an Owner/Member to access the website and download or copy such books and records from the website. The Declarant shall reimburse the Corporation for its direct and actual costs in providing copies of any Corporation books and records to the Declarant to the same extent that an Owner/Member is required to do so under the By-Laws.
(b) Meetings. The Declarant’s Representative shall
have the same rights as any Owner/Member to attend and speak at all meetings of the Owners/Members and the Board. The secretary of each meeting shall accurately note any statements made by the Declarant’s Representative in the minutes of the meetings. Notwithstanding the foregoing, the Declarant’s Representative shall have no rights to speak at or attend executive sessions of the Board. The Declarant’s Representative shall not be a Board member or have any right to vote on matters coming before the Board or have any liability as a Board member. For so long as Declarant’s Representative is entitled to attend any meetings of the Board or the
Owners/Members (except when the Board adjourns to executive session), the Corporation and/or the Owners/Members, as appropriate, shall provide Declarant with written notice of all meetings of the Board and Owners/Members as if Declarant were an Owner/Member, and the Corporation shall provide Declarant’s Representative with the proposed minutes and approved minutes of the meetings of the Board, Owners/Members, and any committees on the same terms and conditions as it would any Owner/Member (e.g., require that the Declarant reimburse the Corporation for its direct and actual costs in providing records).
This Section may not be amended without the prior written approval of the Declarant, which approval may be withheld in Declarant’s sole and absolute discretion.
(signature page to follow)
.-29130.FCM 101521 -160-
IN WITNESS WHEREOF, Declarant has executed this instrument on the day and year first above written. "DECLARANT"
TH BARRANCA LLC, a California limited
liability company
By: Trumark Homes LLC,
a California limited liability
company
Its: Sole member and Manager
By: _______________________
Name: Angela Schmidt
Title: Authorized Signatory
.-29130.FCM 101521 -161-
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
On ______________, 202_, before me, ________________________, Name and Title of Officer
personally appeared ______________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the persons or the entities upon behalf of which the person(s) acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_______________________________
Signature of Notary Public
(SEAL)
.-29130.FCM 101521 -162-
EXHIBIT "A"
LEGAL DESCRIPTION
The Property (i.e., Phase 1) is more described as that certain real property, together with the Improvements thereon, located in the City of Covina, County of Los Angeles, State of California, more generally described as:
A portion of Lot 1 of Tract No. 83178, in the City of
Covina, County of Los Angeles, State of California, as
shown on a Map filed in Book ^ , Pages ^ through ,
inclusive, of Maps in the Office of the County Recorder of said County, depicted and/or described as Modules "A", "B", and "D" (Remainder) on the Phase 1 Condominium Plan recorded concurrently herewith;
Non-exclusive easements in, on, over, under, across and through portions of Lot 1 of Tract No. 83178, as shown on a Map filed in Book _____, Pages ___ through ____,
inclusive, of Maps in the Office of the County Recorder of said County, for purposes of ingress, egress, access, utilities, and drainage according to the approved grading and building plans for the Project, as well as according to the as-built condition of the Project as originally
constructed by Declarant, and the established patterns
for drainage created by Declarant, as well as the actual, natural, existing drainage patterns; and
Nonexclusive easements in favor of the Corporation
over the Condominium Units and Exclusive Use
Corporation Property within Phase 1 and other
property for ingress, egress, access, inspection,
maintenance, landscaping, irrigation, repair,
drainage (e.g., see Exhibits "D", "H", "I", "J",
"K", and "M" hereto), and for all other purposes
reasonably necessary to allow the Corporation to
manage, implement, and comply with all of the
Corporation’s obligations described and/or depicted
in this Declaration, the Water Quality Management
Plans approved for the Project, and the recorded
map of Tract No. 83178.
The Condominium Units within Phase 1 are Condominium Units ^ through ^, inclusive, as described and/or depicted on the Condominium Plan recorded for this Phase in the Official Records of Los Angeles County, California.
.-29130.FCM 101521 Page 1 of 1 Page
EXHIBIT "B"
ANNEXATION PROPERTY
The Annexation Property is more particularly described as that certain real property, together with the Improvements thereon, located in the City of Covina, County of Los Angeles, State of California, more generally described as:
All of Tract No. 83178 in the City of Covina, County of Los Angeles, State of California, as per Map filed in
Book ____, at Pages __ through __, inclusive, of Maps, in the Official Records of Los Angeles County, California., EXCEPT PHASE 1.
.-29130.FCM 101521 Page 1 of 1 Page
EXHIBIT "C"
FIRE LANES AND OTHER NO PARKING AREAS
(see the Exhibit attached hereto)
.-29130.FCM 101521 Page 1 of 1 Page
EXHIBIT "D"
CORPORATION MAINTAINED STORM DRAINAGE FACILITIES
(see the Exhibit attached hereto)
.-29130.FCM 101521 Page 1 of 1 Page
EXHIBIT "E"
SAMPLE FORM OF LIMITED WARRANTY
(see the Exhibit attached hereto)
.-29130.FCM 101521 Page 1 of 1 Page
EXHIBIT "F"
DECLARANT’S NOTICES AND ELECTIONS
PURSUANT TO RIGHT TO REPAIR LAW
California Civil Code Section 895 et seq. (the "Right to Repair Law") establish residential construction standards and provide claim resolution mechanisms. The Right to Repair Law is contained in Part 2 of Division 2 of the California Civil Code ("Part 2"). Required notifications under the Right to Repair Law, and summaries of some of its pertinent provisions, are as follows:
(a) Notice of Procedures. The Right to Repair Law contains various procedures which may impact an Owner’s legal rights as a homeowner. Each Owner may wish to consult with an attorney or other legal advisor to ascertain the requirements of the Right to Repair Law and its impact upon the Owner’s legal rights. (c) ALTERNATIVE PRELITIGATION PROCEDURES. EACH OWNER (BY
ACCEPTANCE OF A DEED TO A CONDOMINIUM) AND THE CORPORATION (BY
ACCEPTANCE OF A DEED TO THE CORPORATION PROPERTY) ACKNOWLEDGES THAT, AS AUTHORIZED BY SECTION 914 OF THE CALIFORNIA CIVIL CODE,
DECLARANT HAS ELECTED NOT TO ENGAGE IN THE PRELITIGATION
PROCEDURES FOR RESOLVING CLAIMS SET FORTH IN THE RIGHT TO REPAIR LAW (CALIFORNIA CIVIL CODE SECTIONS 910 THROUGH 938). INSTEAD,
DECLARANT WILL SEEK TO ENFORCE ITS OWN ALTERNATIVE PRELITIGATION PROCEDURES (e.g., CONTAINED IN EXHIBIT "G" TO THIS DECLARATION,
AS THE SAME MAY BE AMENDED FROM TIME TO TIME BY DECLARANT, THE
PURCHASE AND SALE AGREEMENT BETWEEN DECLARANT AND OWNER, AND, FOR
DISPUTES SUBJECT THERETO, THE LIMITED FIT & FINISH WARRANTY, ETC.). NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL BE DEEMED TO CONSTITUTE A WAIVER OF DECLARANT’S RIGHTS, IF
ANY, TO REQUIRE AN OWNER OR THE CORPORATION TO COMPLY WITH THE
PROCEDURES OF THE CALDERON ACT (SET FORTH AT CIVIL CODE SECTION 6000) OR TO ENFORCE ANY PROVISION OF LAW RELATING TO THE
RESOLUTION OF DISPUTES OTHER THAN THE PRELITIGATION PROCEDURES SET FORTH IN CHAPTER 4 OF THE RIGHT TO REPAIR LAW. EACH OWNER ON
BEHALF OF ITSELF AND ITS SUCCESSORS IN INTEREST AGREES TO PROVIDE COPIES OF THE DOCUMENTS MAKING UP DECLARANT’S ALTERNATIVE
PRELITIGATION PROCEDURES TO ANY SUBSEQUENT PURCHASER OF SAID OWNER’S CONDOMINIUM.
(d) No Enhanced Protection Agreement. Nothing in this
Declaration, nor any representations or warranties of Declarant, express or implied, shall constitute, or shall be interpreted to constitute, an "enhanced protection agreement," as defined in Section 901 of the California Civil Code.
(e) Agent for Notice. Unless otherwise specified by
Declarant, notice of all claims and disputes shall be provided to Declarant’s agent at the address listed below. The name and .-29130.FCM 101521 Page 1 of 3
address of Declarant’s agent is subject to change by written notice from Declarant.
Declarant’s Agent for Notice:
Right to Repair Law Agent
c/o TRUMARK COMPANIES LLC
450 Newport Center Drive, Suite 300
Newport Beach, CA 92660
Tel: (949) 999-9898
Fax: (949) 788-1991
(f) Corporation Property Claims. Notwithstanding any
provision regarding the resolution of Disputes concerning the Corporation Property, at such time as an Owner is elected or appointed to the Board, the Declarant shall be deemed to have relinquished control over the Corporation’s ability to initiate claims regarding the Corporation Property.
(g) Inspection Easements. The Declarant reserves easements to enter the Corporation Property and any Condominium, including the interior of the Condominium Unit, to inspect those areas and to conduct destructive testing referred to in California Civil Code 6000. However, the Declarant shall notify the Corporation (if the Corporation Property is the subject of inspection or testing) or the Owner of the Condominium (if the Owner’s Condominium is the subject of inspection or testing) of at least three (3) alternative dates and times when such inspection can take place (the earliest of which shall not be less than ten (10) days after the notification is given), and the Declarant shall give the Corporation or Owner (as applicable) the opportunity to specify which date and time is acceptable. Should the
Corporation or Owner (as applicable) not respond affirmatively with respect to one of the dates and times within five (5) days, then the Declarant may decide on which of the dates and times the inspection and testing shall take place and so notify the Corporation or Owner (as applicable). Alternatively, the Declarant may seek a judicial order allowing such inspection and testing to take place. Declarant shall be entitled to its reasonably incurred attorneys’ fees and shall be deemed the "prevailing party" should such a court order be sought and obtained.
Declarant shall be obligated to fully repair any damage caused by any such destructive testing.
(h) Manufactured Products Maintenance and Manufacturer
Limited Warranty Information. Each Owner, as to his respective Condominium, and the Corporation, as to the Corporation Property, acknowledge that Declarant has provided such Owner and the Corporation with manufactured product maintenance, preventative maintenance and limited warranty information pertaining to such Owner’s Condominium and to the Corporation Property. Declarant reserves the right, by written notice to each Owner and/or to the Corporation, to supplement and/or amend such manufactured product .-29130.FCM 101521 Page 2 of 3
maintenance, preventative maintenance and limited warranty information from time to time. Each Owner and the Corporation also acknowledge that by law, such Owner and Corporation are obligated to follow all reasonable maintenance and preventative maintenance schedules and obligations communicated in writing from Declarant as well as commonly accepted maintenance practices. Each Owner and the Corporation covenant to faithfully follow all such maintenance and preventative maintenance schedules and obligations contained in all such manufactured product maintenance, preventative maintenance and limited warranty information (and each Owner shall require and cause any tenant or lessee of such Owner’s Condominium to follow all such schedules and obligations).
THIS EXHIBIT MAY NOT BE AMENDED WITHOUT DECLARANT’S PRIOR WRITTEN CONSENT, WHICH CONSENT MAY BE WITHHELD IN DECLARANT’S SOLE AND ABSOLUTE DISCRETION.
.-29130.FCM 101521 Page 3 of 3
EXHIBIT "G"
PRELITIGATION PROCEDURES, MEDIATION, AND
BINDING DISPUTE RESOLUTION PROCEDURES
1. DISPUTES WITH DECLARANT PARTIES. Any dispute between the Corporation or any Owners, on the one hand, and the Declarant, or any director, officer, partner, shareholder, member, employee, representative, contractor, subcontractor, design professional or agent of the Declarant (each, a “Declarant Party,” and
collectively the “Declarant Parties”), on the other hand, which dispute:
(a) Arises under this Declaration or otherwise relates to the Project, including, without limitation, Right to Repair Law claims; and
(b) Involves neither Corporation Property completion bonds, nor the collection of delinquent Assessments from Declarant; and (c) Concerns an amount in controversy that is greater than Five Thousand Dollars ($5,000); and
(d) Concerns matters that are not resolved under the
written limited warranty provided by Declarant;
shall be a “Dispute” for purposes of this Section 1.
In addition, Owners and the Corporation are advised that Sections 1.1 and 1.2 below are Declarant's alternative
contractual prelitigation procedures for the resolution of Disputes concerning matters governed by the Right to Repair Law.
These procedures are different from and replace the
“Prelitigation Procedure” described in Chapter 4 of the Right to Repair Law (i.e., California Civil Code Sections 910 through 938). All Disputes shall be resolved in accordance with the following alternative dispute resolution procedures:
1.1. Claim Notice; Right to Inspect and Correct. Any person with a Dispute shall notify the other party or parties in writing of the Dispute. Such writing shall (i) identify the claimant's name and address; (ii) state that the claimant elects to commence the procedures set forth in this Section 1; and (iii) describe the nature and location of the Dispute in reasonable detail (the “Dispute Notice”). Within a reasonable period of time after receipt of the Dispute Notice, which period shall not exceed sixty (60) days, the party or parties receiving the Dispute Notice and the party making the Dispute shall meet and confer at a mutually-acceptable place in the County to discuss the Dispute.
At such meeting or at such other mutually-agreeable time, the parties and their authorized representatives shall have full access to the property that is subject of the Dispute for the purposes of inspecting such property. If the party or parties against whom the Dispute is made decides to take any corrective action, that party or parties and their representatives shall be provided full access to the subject property to take such .-29130.FCM 101521 Page 1 of 7
corrective action. Further, if the party or parties against whom the Dispute is made decides to take any corrective action, any such corrective action shall be taken within not less than fortyfive (45) days after the meet and confer of the parties referenced above.
1.2. Nonbinding Mediation. If the parties cannot resolve the Dispute pursuant to the procedures described in Section 1.1 above, the Dispute shall be submitted to non-binding mediation pursuant to the mediation procedures adopted by Judicial Arbitration and Mediation Services (“JAMS”) or any successor entity thereto or to any other entity offering mediation services that is acceptable to the parties. The parties shall cooperate so that the mediation hearing can be held as soon as practicable, and no later than sixty (60) days after the meet and confer of the parties referenced above in Section 1.1. No person shall serve as a mediator in which the person has any financial or personal interest in the result of the mediation, except by the written consent of all parties.
(a) Each party shall submit a brief memorandum setting
forth its position with regard to the issues that need to be resolved within ten (10) days of the selection of the mediator or within such time frame established by the mediator. The mediation shall be commenced within ten (10) days following the submittal of the memoranda and shall be concluded within fifteen (15) days from the commencement of the mediation unless the parties mutually agree in writing otherwise. As stated above, however, the mediation shall be held no later than sixty (60) days after the meet and confer of the parties referenced in Section 1.1.
The mediation shall be held in the County or such other place as the parties agree in writing.
(b) The mediator shall have discretion to conduct the
mediation in the manner in which the mediator believes is most appropriate for reaching a settlement of the Dispute. The mediator shall be authorized to conduct joint and separate meetings with the parties and to make oral and written
recommendations for settlement. The mediator shall not have the authority to impose a settlement on the parties.
(c) The mediation shall be subject to the provisions
of California Evidence Code Sections 1115 through 1128, or any successor statutes thereto, except as the parties may agree otherwise in writing or orally in accordance with the provisions of Evidence Code Section 1118.
(d) No persons may attend the mediation other than the
parties, their representatives (including, but not limited to, counsel) and the mediator other than with the permission of the parties and the consent of the mediator. Confidential
information disclosed to a mediator by the parties in the course .-29130.FCM 101521 Page 2 of 7
of the mediation shall not be divulged by the mediator. All records, reports, or other documents received by the mediator while serving in such capacity shall be considered confidential.
There shall be no stenographic record of the mediation session. (e) Each party shall bear their own mediation
expenses, provided that the mediation administrative fee and costs and the mediator's fee and costs shall be borne equally by the parties unless the parties agree otherwise in writing.
1.3. Judicial Reference. If a Dispute remains unresolved after the mediation required by Section 1.2 is completed, then any of the parties may file a lawsuit, provided that, if required by a resolution of the Board or an amendment to this Declaration approved by a majority (51%) of the Owners, the Corporation must obtain the vote or written consent of Owners other than Declarant who represent not less than sixty-seven percent (67%) of the Corporation's voting power (excluding the voting power of Declarant) prior to filing a lawsuit in a Dispute with Declarant or a Declarant Party. If a lawsuit is filed, the Dispute shall be resolved by means of a general reference made under the provisions of Code of Civil Procedure Sections 638, et seq., by a general referee appointed under the provisions of Code of Civil Procedure Section 638(a), or any successor statute thereto (“Referee”). Either or both parties may take the steps necessary to secure the appointment of the Referee. The Referee shall have the authority to hear and determine any and all issues in the action or proceeding, whether of fact or law, and to issue a statement of decision thereon. Each party waives the right to a jury trial. The following rules and procedures shall apply in all cases unless the parties agree otherwise in writing:
(a) The proceedings shall be heard in the County.
(b) The Referee shall be a retired judge, or an
attorney with at least five (5) years' real estate experience; provided that either party may object to the appointment of a particular referee on any grounds authorized under Code of Civil Procedure Section 641, or any successor statute thereto. (c) Any dispute regarding the selection of the Referee
shall be resolved by the entity providing the reference services or, if no entity is involved, by the court in which the action or proceeding is pending.
(d) The parties shall be entitled to all rights of
discovery permitted by California law.
(e) The Referee shall have the power to hear and
dispose of motions in the same manner as a trial court judge. .-29130.FCM 101521 Page 3 of 7
(f) The Referee shall apply the rules of law,
including the rules of evidence, unless expressly waived by the parties in writing.
(g) A stenographic record of the trial shall be made,
provided that the record shall remain confidential to the extent permitted by California law.
(h) The Referee's statement of decision shall stand as
the decision of the court as authorized under Code of Civil Procedure Section 644(a), and judgment may be entered thereon in the same manner as if the action had been tried by a court. (i) The Referee shall have the authority to rule on
all post-trial motions in the same manner as a trial court judge. (j) Each party retains, pursuant to California Code of
Civil Procedure Section 645, the same appeal rights from the judgment entered on the Referee's statement of decision as if judgment had been entered on a trial court judge’s statement of decision.
(k) The Referee's fee and costs shall be borne equally
by the parties unless the parties agree otherwise in writing. (l) The proceeding shall be subject to the same laws
and rules applicable to trials in Los Angeles County Superior Court for concluding the proceedings.
(m) Each party shall bear its own attorneys' fees and
costs (including expert witness costs).
Nothing herein shall be considered to reduce or extend any applicable statutes of limitations.
1.4. Binding Arbitration. If for any reason the judicial reference procedures in Section 1.3 are legally unavailable, unenforceable at the time a Dispute would otherwise be referred to judicial reference, or if all necessary parties cannot be joined in the judicial reference proceeding described in Section
1.3, then such Dispute shall be submitted to neutral arbitration.
ARBITRATION SHALL BE MANDATORY AND BINDING, AND SHALL BE GOVERNED
BY THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT (TO THE EXTENT IT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT), AND CONDUCTED SUBJECT TO THE FOLLOWING PROCEDURES:
(a) Any Dispute subject to this Section 1.4 shall be
submitted to neutral, binding arbitration by and pursuant to the arbitration rules and procedures of JAMS in effect at the time the request for arbitration is submitted. If JAMS is for any reason unwilling or unable to serve as the arbitration service, the parties shall select another reputable arbitration service .-29130.FCM 101521 Page 4 of 7
mutually acceptable to all parties to the Dispute. If the parties are unable to agree on an alternative service, then any party may petition any court of competent jurisdiction in the County to appoint such an alternative service, which appointment shall be binding on the parties. The arbitration shall be conducted pursuant to the rules and procedures of such
alternative service in effect at the time the request for arbitration is submitted. Nothing herein shall prevent the parties from agreeing to use an alternative arbitration service. (b) Disputes subject to arbitration under this Section
1.4 involve and concern interstate commerce and are governed by the provisions of the Federal Arbitration Act (9 U.S.C. §1, et seq.), to the exclusion of any different or inconsistent state or local law, ordinance, regulation, or judicial rule.
(c) The arbitration provisions in this Section 1.4
shall inure to the benefit of, and be enforceable by the parties, including, without limitation, the Corporation, Owners, Declarant Parties, and each of their contractors, subcontractors, agents, vendors, suppliers, design professionals, insurers and any other person whom the applicable claimant may contend is responsible for any alleged loss, liability or damages incurred by the claimant as a result of the circumstances relating to such Dispute.
(d) If any Dispute is submitted to arbitration, each
party shall bear its own attorneys' fees and costs (including expert witness costs).
(e) The parties shall be entitled to all rights of
discovery permitted by California law. The arbitrator shall have the power to provide all recognized remedies available in law or in equity for any cause of action that is the basis of the arbitration; however, the arbitrator shall have no power to grant any remedy not available to a judge of the Superior Court of the State of California under California law or equity.
(f) The decision of the arbitrator is final and
binding; provided, however, that the arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected for any such error on appeal to a court of competent jurisdiction in the County. Any application to confirm, vacate, modify, or correct an award rendered by the arbitrator shall be filed in any court of competent jurisdiction in the County.
(g) Except as otherwise provided in this Section 1.4,
to the extent that any state or local law, ordinance, regulation, or judicial rule is inconsistent with any provision of the rules of the arbitration service under which the arbitration proceeding .-29130.FCM 101521 Page 5 of 7
shall be conducted, the latter rules shall govern the conduct of the proceeding.
(h) The participation by any party in any judicial
proceeding concerning this arbitration provision or any arbitral issue hereunder shall not be asserted or accepted as a reason to delay, to refuse to participate in, or to refuse to enforce this arbitration agreement.
(i) The fees to initiate the arbitration shall be
advanced by the Declarant. Subsequent fees and costs of the arbitration and/or the arbitrator shall be borne equally by the parties to the arbitration; provided, however, that the fees and costs of the arbitration and/or the arbitrator ultimately shall be borne as determined in the discretion of the arbitrator. This provision does not modify any provision of a contract requiring indemnification or establishing a different allocation of costs between the parties.
(j) The arbitrator appointed to serve shall be a
neutral and impartial individual.
(k) The venue of the arbitration shall be in the
County unless the parties agree in writing to another location. (l) If any provision of this Section 1.4 is determined
to be unenforceable or to have been waived, the remaining provisions shall be deemed to be severable therefrom and enforceable according to their terms.
(m) This arbitration provision is self-executing. Any
Dispute concerning the interpretation or the enforceability of the arbitration provisions in this Section 1.4, including its revocability or voidability for any cause, any challenges to the enforcement or the validity hereof, or the scope of arbitrable issues hereunder, and any defense relating to the enforcement of the arbitration agreement set forth in this Section 1.4, including waiver, estoppel, or laches, shall be decided by an arbitrator in accordance with this arbitration provision and not by a court of law.
BY ACCEPTING A REAL PROPERTY INTEREST (WHETHER IN FEE
SIMPLE, BY EASEMENT OR ANY OTHER FORM OF OWNERSHIP) TO ALL OR ANY
PORTION OF THE PROJECT, THE PARTIES ARE DEEMED TO AGREE TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS SECTION
1.4 DECIDED BY NEUTRAL, BINDING ARBITRATION IN ACCORDANCE WITH
THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT (TO THE EXTENT THE CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT). ACKNOWLEDGEMENT OF THE FOREGOING
IS A CONDITION TO CONVEYANCE OF A REAL PROPERTY INTEREST IN THE PROJECT TO SUCH PARTY. BY ACCEPTING A REAL PROPERTY INTEREST (WHETHER IN FEE SIMPLE, BY EASEMENT OR ANY OTHER FORM OF .-29130.FCM 101521 Page 6 of 7
OWNERSHIP) TO ALL OR ANY PORTION OF THE PROJECT, A PARTY IS
DEEMED TO HAVE AGREED TO GIVE UP ANY RIGHTS SUCH PARTY MIGHT
POSSESS TO HAVE ANY DISPUTES SUBJECT HERETO LITIGATED IN A COURT
OR JURY TRIAL, AS WELL AS THEIR RESPECTIVE JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THIS DECLARATION, OR THE APPLICABLE ARBITRATION RULES OR STATUTES. IF ANY SUCH PARTY REFUSES TO SUBMIT TO ARBITRATION,
SUCH PARTY MAY BE COMPELLED TO ARBITRATE UNDER THE FEDERAL
ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT (TO THE EXTENT
THE CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT). BY ACCEPTING ANY GRANT DEED OR OTHER
INSTRUMENT CONVEYING ANY REAL PROPERTY INTEREST IN THE PROJECT,
THE GRANTEE THEREIN SHALL BE DEEMED TO ACKNOWLEDGE THAT ITS AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
1.5. Statutes of Limitation. Nothing in this Section 1 (or any of the subparts thereof) shall be considered to toll, stay, reduce or extend any applicable statute of limitations; provided, however, that Declarant, the Declarant Parties, the Corporation and any Owner may commence a legal action which in the good faith determination of that Person is necessary to preserve that Person's rights under any applicable statute of limitations so long as no further steps in processing the action are taken except those authorized in this Section 1.
1.6. Agreement to Dispute Resolution; Waiver of Jury Trial.
DECLARANT, THE CORPORATION AND EACH OWNER AGREE TO USE THE PROCEDURES ESTABLISHED IN THIS SECTION 1 TO RESOLVE ALL DISPUTES AND WAIVE THEIR RIGHTS TO RESOLVE DISPUTES IN ANY OTHER MANNER.
DECLARANT, THE CORPORATION AND EACH OWNER ACKNOWLEDGE THAT BY AGREEING TO RESOLVE ALL DISPUTES AS PROVIDED IN THIS SECTION 1,
THEY ARE GIVING UP THEIR RIGHT TO HAVE DISPUTES TRIED BEFORE A JURY. THIS SECTION 1 MAY NOT BE AMENDED WITHOUT DECLARANT'S PRIOR WRITTEN CONSENT.
Covenant Regarding Proceeds. If the Corporation or any Owner prevail in a Dispute, and the judgment thereon or settlement terms thereof includes a monetary award, then the proceeds of the award shall be first applied to the remediation of the condition that gave rise to the Dispute.
THIS EXHIBIT MAY NOT BE AMENDED WITHOUT DECLARANT’S PRIOR WRITTEN CONSENT, WHICH CONSENT MAY BE WITHHELD IN DECLARANT’S SOLE AND ABSOLUTE DISCRETION.
.-29130.FCM 101521 Page 7 of 7
EXHIBIT "H"
CORPORATION MAINTAINED WALLS AND FENCES
(see the Exhibit attached hereto)
.-29130.FCM 101521 Page 1 of 1
EXHIBIT "I"
CORPORATION MAINTAINED SEWER FACILITIES
(see the Exhibit attached hereto)
.-29130.FCM 101521 Page 1 of 1
EXHIBIT "J"
CORPORATION MAINTAINED WATER FACILITIES
(see the Exhibit attached hereto)
.-29130.FCM 101521 Page 1 of 1
EXHIBIT "K"
CORPORATION MAINTAINED ON-SITE LANDSCAPE AREAS
(see the Exhibit attached hereto)
.-29130.FCM 101521 Page 1 of 1 Page
EXHIBIT "L"
(Intentionally omitted)
.-29130.FCM 101521 Page 1 of 1 Page
EXHIBIT "M"
MAINTENANCE MATRIX
ITEMS CORPORATION
RESPONSIBILITY
OWNER’S
RESPONSIBILITY
Residential
living element
of Condominium
Units
None Each Owner maintains the
entirety of the
residential living element
of the Condominium Unit,
including, without
limitation, all interior
doors and their hardware,
interior wall surfaces,
drywall, automatic fire
sprinkler system
(including fire sprinkler
lines and heads),
cabinets, floor coverings,
ceilings, permanent fixtures, appliances,
electrical outlets and
switches, toilets, smoke
detectors (including periodic testing and
replacement of batteries),
duct, vents, and washing
machine water hoses.
Residential
Living Element
entry door of
Condominium
Units
The Corporation may
periodically paint
the exterior
surface of the
entry door to the
Condominium Unit
when it paints the
exterior of the
Condominium
Building in which
the Condominium
Unit is located.
Owner maintains the
structural integrity and
interior surfaces, the
handle, latches,
weatherstripping, locking
mechanism, door jamb, kick
plates and the screen door
and performs any touch up
painting on the exterior
surface if necessary before the Corporation's
periodic painting of the
Condominium Building
containing the Condominium
Unit.
.-29130.FCM 101521 Page 1 of 9 Pages
Sliding glass
doors, frames,
and screen
doors serving
Condominium
Unit
None. The Owner of the
Condominium Unit maintains
all portions of these
items, including the
locking mechanism,
weatherproofing,
sheathing, frame and any
glass. The Owner of the
Condominium Unit also
paints, stains, seals or
otherwise weatherproofs
the exterior surfaces.
Windows of
Condominium
Unit
None. Each Condominium Unit Owner is responsible for
cleaning all windows in
his Condominium Unit and
maintaining all portions
of the windows including
the frame, screens,
locking mechanisms,
weather stripping,
caulking, panes and
sheathing.
Light Fixtures
on Condominium
Buildings
The Corporation
maintains all light
fixtures on
Condominium
Buildings that are
not actuated from
switches controlled
from, or separately
metered to, an
Owner’s Condominium
Unit.
The Owner of the
Condominium Unit maintains
the light fixtures
actuated from switches
controlled from, or separately metered to, the
Owner's Condominium Unit.
.-29130.FCM 101521 Page 2 of 9 Pages
If applicable,
Exclusive Use
Corporation
Property Patio
Appurtenant to
Condominium
Unit
None. The Owner maintains.
Without any limitation of
the foregoing, the Owner
sweeps the patio regularly
and keeps it free from debris and reasonably
protected against damage.
The Owner maintains in
good clean, and safe
condition at all times any
drainage devices in the
patio area. The Owner
maintains any hose bibs,
faucets, spigots, water
shut-off valves, and electrical outlets and switches in the patio. The Owner maintains the structure of
the patio and any tile,
paver or other surface
material installed on the
patio by Owner.
If applicable,
Exclusive Use
Corporation
Property Deck
Appurtenant to
Condominium
Unit
The Corporation
maintains the
painted surfaces of
all deck
wall/fence/railings
and the structural
integrity of the
deck and any
waterproofing on
the deck floor
originally
installed by the
Declarant.
The Owner of the
Condominium Unit maintains
in good clean, and safe
condition at all times,
and keeps it free from debris and reasonably
protected against damage.
The Owner maintains any
hose bibs, electrical
outlets and switches. The
Owner maintains any tile,
paver or other surface
material installed by
Owner on the surface of
the deck.
If applicable,
Exclusive Use
Corporation
Property Solar
System Location
Appurtenant to
Condominium
Unit and Solar
System
None. The Owner maintains all
elements of the Exclusive
Use Corporation Property
Solar System Location
appurtenant to the Owner’s
Condominium Unit and the
Solar System (including,
without limitation, any
solar panel, solar
collector, and associated
wiring and equipment).
.-29130.FCM 101521 Page 3 of 9 Pages
If applicable,
Exclusive Use
Corporation
Property Air
Conditioning
Pad and
Equipment
Appurtenant to
Condominium
Unit
None. The Owner maintains.
Garage of
Condominium
Unit
The Corporation
maintains the
exterior painted
surface and the
structure of the
garage door
(however, all repairs to exterior
doors and garage
doors, including
the structural maintenance thereof,
shall be at the
sole expense of the
respective Owner of
the Condominium
Unit unless otherwise agreed to by
the Board).
The Owner of the
Condominium Unit maintains
the interior of the
garage, including, without
limitation, the interior
painted surface of the
garage door, hinges,
garage door opener, door
jamb and trim,
weatherstripping, all
other doors within the
garage, all interior wall
surfaces, drywall,
ceilings, permanent fixtures, appliances, and
electrical outlets and
switches.
Telephone wiring exclusively
serving Condominium Unit
None. The Owner of the
Condominium Unit
maintains.
.-29130.FCM 101521 Page 4 of 9 Pages
Utilities Serving Condominium
Unit.
The Corporation
maintains the
utilities serving
the Corporation
Property and
portions of the
private sewer lines
and facilities
described in
Exhibits to this
Declaration and/or
recorded Notices of
Annexation, and
those utilities
which serve
multiple
Condominiums that
are subject to a
common meter (if
any) as noted in
the Budget (if
applicable). The
Corporation
maintains any water
sub-meters serving
the Condominiums.
The Owner of each
Condominium maintains the
utilities exclusively
serving the Condominium
that are separately metered. This includes all
electric lines and gas
lines (if any) serving the
Condominium that are not
serviced by the utility
company or other utility
provider, all water
laterals and facilities
exclusively serving the
Condominium from within
the Condominium to the
water submeter, and all
sewer laterals exclusively
serving the Condominium,
all individual waste water
drain lines that connect
to Corporation Property
drain lines serving
multiple Condominiums, the
water pressure regulator
(if it services an
individual Condominium),
all plumbing outlets and
fixtures, furnace, ducts
and vents (HVAC, dryer,
stove, oven), and circuit
breakers exclusively
serving the Condominium.
.-29130.FCM 101521 Page 5 of 9 Pages
Roof, Exterior
Walls, and Structure of
Condominium
Buildings
The Corporation
maintains the
structural components of the
Condominium
Buildings, including, without
limitation,
exterior perimeter
walls, bearing
walls, columns,
fire-rated walls,
roofs, roof tiles,
slabs, foundations,
exterior stairs (if
any), railings, the
structural floors
(but not the floor
coverings), including the structural
floors separating
the different stories of the
Condominium
Buildings, a
preventive program
for the prevention
and eradication of
infestation by wood
destroying pests
and organisms,
exterior finished
surfaces, gutters,
and downspouts).
None.
.-29130.FCM 101521 Page 6 of 9 Pages
Automatic Fire
Sprinkler
Heads, Fire
Sprinkler System, Fire Alarm
System, Fire
Extinguishers,
Fire Hydrants,
and Other Fire
Preventing
Equipment
and/or
Facilities
The Corporation
maintains all
elements of the
automatic fire
system and fire
alarm systems (if
any) serving the
Condominium
Buildings. The
Corporation also
maintains any
common 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.
None.
Private
Vehicular
Drives, Aisles,
Guest Parking
Areas, and
Sidewalks.
The Corporation
maintains the
private vehicular
drives, aisles,
guest parking
areas, and
sidewalks in the
Project.
None.
.-29130.FCM 101521 Page 7 of 9 Pages
Landscaping and
Irrigation
The Corporation
maintains all
landscaping and
irrigation
Improvements located in the
Corporation
Property (including
those areas
described on
Exhibits "K" hereto
and/or on a
recorded Notice of
Annexation), and
any potted plants
placed on the
Corporation
Property by the
Corporation, other
than landscaping
and irrigation
located in
Exclusive Use
Corporation
Property
appurtenant to a
Condominium Unit
(e.g., patio, deck,
etc.).
Each Owner of a
Condominium Unit maintains
all landscaping (including
potted plants) and any
irrigation systems located
within the Owner’s
Exclusive Use Corporation
Property patio and deck
areas.
Private
Stormwater
Drainage System
(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).
The Corporation
maintains those
portions of the
private stormwater
drainage system
described and/or
depicted as
maintained by the
Corporation on
Exhibit "D" to this
Declaration and/or
a recorded Notice
of Annexation.
Except as expressly set
forth on Exhibit "D" to
this Declaration and/or on
a recorded Notice of
Annexation, each Owner of
a Condominium Unit
maintains all drainage
devices within the
Exclusive Use Corporation
Property patio and deck
appurtenant to the Owner’s
Condominium Unit.
.-29130.FCM 101521 Page 8 of 9 Pages
Common
Recreational
Facilities
(e.g., outdoor
dining area,
outdoor
furniture,
outdoor play
structures,
overhead
canopies,
outdoor lawn
bowl, string
light
trellis/arbor,
bicycle racks,
etc.).
The Corporation
maintains.
None.
Project
monuments
The Corporation
maintains.
None.
Walls, Fences,
Pilasters, and
Gates
The Corporation
maintains those
portions of the
Project walls,
fences, pilasters,
and gates described
and/or depicted as
maintained by the
Corporation in
Exhibit "H" to this
Declaration and/or
a recorded Notice
of Annexation or
otherwise included
in the budget or
described in this
Declaration.
None.
.-29130.FCM 101521 Page 9 of 9 Pages
EXHIBIT "N"
LANDSCAPE DISTRICT MAINTAINED OFF-SITE LANDSCAPE AREAS
(see the Exhibit attached hereto)
.-29130.FCM 101521 Page 1 of 1 Page
CONSENT OF LIENHOLDER AND
SUBORDINATION OF LIEN
_________________________
The undersigned beneficiary under that certain Deed of Trust recorded on ^__________, 202_, as Instrument No.
^_________________, in the Official Records of Los Angeles County, California ("Deed of Trust") hereby consents to the recordation of the attached Declaration of Covenants, Conditions and Restrictions, and Reservation of Easements for Zest ("Declaration"), and to any Notice of Annexation recorded pursuant to the Article therein entitled Annexation of Additional Property ("Notice of Annexation") and agrees that the lien of the Deed of Trust shall be junior and subordinate and subject to the Declaration and Notice of Annexation and to any easements to be conveyed to Zest Owners Association in accordance with the terms of the Declaration and any Notice of Annexation, and to any amendments or modifications to the Declaration which may be required to comply with any law, statute or regulation of any public agency or any requirement of FNMA or FHLMC.
DATED: ___________________ LIENHOLDER
^
By:___________________________
Name:_________________________
Title:________________________
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF _______________)
On ____________, 202_, before me, _____________________, Notary Public, personally appeared _____________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
__________________________
Signature of Notary Public
[SEAL]
CC Regular Meeting
AGENDA ITEM REPORT
ITEM NO. CB 2
Meeting: September 2, 2025
Title: Proposed Legislation Relating to Immigration Enforcement Presented by: Chris Marcarello, City Manager
Recommendation: That the City Council receive/file this report and provide further direction, as needed.
EXECUTIVE SUMMARY:
At its August 5, 2025 regular meeting, members of the City Council expressed an interest in receiving an update pertaining to proposed legislation on the topic of immigration enforcement activities. A summary of proposed federal and State legislation is included for further review. Of note, as of August 28, 2025, the County of Los Angeles Board of Supervisors has not yet considered an ordinance or regulations pertaining to the use of masks during law enforcement activities.
BACKGROUND:
A brief summary of various federal and state legislation pertaining to immigration enforcement activities is provided for further review:
S 2212 (Padilla)/HR 4667 (Gonzalez)
o Would amend Section 287 of the Immigration and Nationality Act to mandate that all immigration enforcement officers display visible identification during public-facing enforcement actions. HR 4004 (Velazquez)
o Would require that immigration enforcement agents not wear facial coverings during enforcement operations and display name/affiliation on a visible garment. Would further provide exemptions when responding to imminent threats and/or for safety/medical reasons. SB 627 (Weiner)
o Would make it a misdemeanor for any law enforcement officer to wear masks or personal disguises that obscure their identity while interacting with the public. Would further provide exemptions for medical masks, protective gear for hazardous situations and SWAT/undercover operations. o Would require that agencies planning operations likely to involve masked personnel to notify local law enforcement at least 12 hours in advance of the location, time and length of the operation. SB 805 (Perez)
o Would require law enforcement officers operating in California to visibly display identification when performing enforcement duties. Would further provide exemptions for undercover activities.
Additionally, a case was filed in the Federal Court system (Vasquez Perdomo v. Noem) that relates to the use of “suspicionless” immigration enforcement activities and stops. On August 1, 2025, the 9th Circuit Court of Appeals upheld the Federal District Court’s temporary restraining order (“TRO”) and on August 7, 2025, the Department of Justice appealed to the U.S. Supreme Court for a stay of the District Court’s TRO.
Respectfully submitted,
II
119TH CONGRESS
1ST SESSION S. 2212
To amend section 287 of the Immigration and Nationality Act to require all immigration enforcement officers to display visible identification during public-facing immigration enforcement actions and to promote transparency and accountability.
IN THE SENATE OF THE UNITED STATES
JULY 8, 2025
Mr. PADILLA (for himself, Mr. BOOKER, Mr. SCHIFF, Mr. VAN HOLLEN, Ms.
DUCKWORTH, Mr. BLUMENTHAL, Mrs. MURRAY, Ms. HIRONO, Mr.
WELCH, Mr. WYDEN, Ms. SMITH, Ms. SLOTKIN, Mr. PETERS, Mr. KIM, and Ms. KLOBUCHAR) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To amend section 287 of the Immigration and Nationality Act to require all immigration enforcement officers to
display visible identification during public-facing immigration enforcement actions and to promote transparency and accountability.
1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLES.
4 This Act may be cited as the ‘‘Visible Identification 5 Standards for Immigration-Based Law Enforcement Act
6 of 2025’’ or the ‘‘VISIBLE Act’’.
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2 •S 2212 IS
1 SEC. 2. FINDINGS.
2 Congress finds that—
3 (1) transparency and accountability in public
4 immigration enforcement are essential to maintain5 ing public trust and upholding constitutional govern6 ance; and 7 (2) immigration enforcement officers should be
8 visibly identifiable during any civil immigration en9 forcement activity at which members of the public 10 may be directly engaged or present, including ac11 tions involving civil and criminal authority, unless 12 the activity is truly covert and not observable by the 13 public.
14 SEC. 3. REQUIREMENT FOR VISIBLE IDENTIFICATION DUR15 ING IMMIGRATION ENFORCEMENT. 16 Section 287 of the Immigration and Nationality Act
17 (8 U.S.C. 1357) is amended by adding at the end the fol18 lowing:
19 ‘‘(i)(1) In this subsection:
20 ‘‘(A) The term ‘covered immigration officer’
21 means any individual who is—
22 ‘‘(i) authorized to perform immigration en23 forcement functions; and 24 ‘‘(ii)(I) an officer or employee of U.S. Cus25 toms and Border Protection; VerDate Sep 11 2014 03:54 Jul 15, 2025 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2212.IS S2212 kjohnson on DSK7ZCZBW3PROD with $$_JOB
3 •S 2212 IS
1 ‘‘(II) an officer or employee of U.S. Immi2 gration and Customs Enforcement; or 3 ‘‘(III) an individual authorized, deputized,
4 or designated under Federal law, regulation, or
5 agreement to perform immigration enforcement
6 functions, including pursuant to section 287(g)
7 or any other delegation or agreement with the
8 Department of Homeland Security.
9 ‘‘(B) The term ‘public immigration enforcement
10 function’—
11 ‘‘(i) means any activity that involves the
12 direct exercise of Federal immigration authority
13 through public-facing actions, including a pa14 trol, a stop, an arrest, a search, an interview to 15 determine immigration status, a raid, a check16 point inspection, or the service of a judicial or 17 administrative warrant; and
18 ‘‘(ii) does not include covert, non-public op19 erations or non-enforcement activities. 20 ‘‘(C) The term ‘visible identification’ means a
21 display of an immigration officer’s agency and name
22 or badge number in a size and format that complies
23 with the requirements under paragraph (3).
24 ‘‘(2) Each covered immigration officer who directly
25 engages in a public immigration enforcement function VerDate Sep 11 2014 03:54 Jul 15, 2025 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2212.IS S2212 kjohnson on DSK7ZCZBW3PROD with $$_JOB
4 •S 2212 IS
1 within the United States shall, at all times during such 2 engagement, wear visible identification, which shall in3 clude— 4 ‘‘(A) the full name or widely recognized initials
5 of the officer’s employing agency; and
6 ‘‘(B)(i) the officer’s last name; or
7 ‘‘(ii) the officer’s unique badge or identification
8 number.
9 ‘‘(3) The identifying information described in this
10 paragraph shall be—
11 ‘‘(A) for the immigration officer’s agency, dis12 played in a size and format that is clearly legible 13 from a distance of not less than 25 feet, using mate14 rials or markings suitable for visibility in both day15 light and low-light conditions, under normal oper16 ation conditions; 17 ‘‘(B) for the officer’s name or badge number,
18 displayed in a manner that is clearly visible and
19 readable during direct engagement with the public;
20 and
21 ‘‘(C) displayed on the outermost garment or
22 gear and not obscured by tactical equipment, body
23 armor, or accessories.
24 ‘‘(4) Covered immigration officers may not wear non25 medical face coverings, including masks or balaclavas, that VerDate Sep 11 2014 03:54 Jul 15, 2025 Jkt 059200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2212.IS S2212 kjohnson on DSK7ZCZBW3PROD with $$_JOB
5 •S 2212 IS
1 impair the visibility of the identifying information required 2 under this subsection or obscure the officer’s face unless 3 such face coverings are operationally necessary—
4 ‘‘(A) to protect the integrity of a covert, non5 public operation; or 6 ‘‘(B) to guard against hazardous environmental
7 conditions.’’.
8 SEC. 4. COMPLIANCE AND REPORTING.
9 (a) INTERNAL ACCOUNTABILITY.—The Secretary of
10 Homeland Security shall ensure that any covered immi11 gration officer who fails to comply with the requirements 12 under section 287(i) of the Immigration and Nationality 13 Act, as added by section 3, receive appropriate administra14 tive discipline, including written reprimand, suspension, or 15 other personnel actions, consistent with agency policy and 16 any applicable collective bargaining agreement.
17 (b) ANNUAL REPORT TO CONGRESS.—Not later than
18 one year after the date of the enactment of this Act, and 19 annually thereafter, the Secretary of Homeland Security 20 shall submit a report to the Office for Civil Rights and 21 Civil Liberties of the Department of Homeland Security, 22 the Committee on the Judiciary of the Senate, the Com23 mittee on Homeland Security and Governmental Affairs 24 of the Senate, the Committee on the Judiciary of the 25 House of Representatives, and the Committee on HomeVerDate Sep 11 2014 03:54 Jul 15, 2025 Jkt 059200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2212.IS S2212 kjohnson on DSK7ZCZBW3PROD with $$_JOB
6 •S 2212 IS
1 land Security of the House of Representatives that in2 cludes— 3 (1) the total number of public immigration en4 forcement functions conducted during the reporting 5 period;
6 (2) the number of documented instances of non7 compliance with section 287(i) of the Immigration 8 and Nationality Act, as added by section 3; and
9 (3) a summary of disciplinary or remedial ac10 tions taken against those responsible for such in11 stances of noncompliance. 12 SEC. 5. ROLE OF THE OFFICE FOR CIVIL RIGHTS AND CIVIL 13 LIBERTIES.
14 The Office for Civil Rights and Civil Liberties of the 15 Department of Homeland Security shall—
16 (1) receive and investigate complaints from the
17 public concerning violations of section 287(i) of the 18 Immigration and Nationality Act, as added by sec19 tion 3; 20 (2) issue recommendations to relevant Depart21 ment of Homeland Security components concerning 22 compliance and corrective actions that should be
23 taken;
24 (3) include findings and actions taken pursuant
25 to this Act, including information contained in the
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7 •S 2212 IS
1 report received pursuant to section 4(b), in its an2 nual public report submitted pursuant to section 3 705(b) of the Homeland Security Act of 2002 (6
4 U.S.C. 345(b)); and
5 (4) carry out the responsibilities under this sec6 tion in accordance with its statutory authorities, 7 which may include coordination with the Office of
8 Inspector General of the Department, as appro9 priate.
Æ
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I
119TH CONGRESS
1ST SESSION H. R. 4004
To prohibit U.S. Immigration and Customs Enforcement agents conducting immigration enforcement operations from wearing facial coverings, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JUNE 12, 2025
Ms. VELA´ZQUEZ introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To prohibit U.S. Immigration and Customs Enforcement
agents conducting immigration enforcement operations
from wearing facial coverings, and for other purposes.
1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ‘‘No Anonymity in Im5 migration Enforcement Act of 2025’’.
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2 •HR 4004 IH
1 SEC. 2. REQUIREMENT REGARDING IDENTIFICATION OF
2 U.S. IMMIGRATION AND CUSTOMS ENFORCE3 MENT AGENTS.
4 Except as provided in section 3, an agent conducting
5 an enforcement operation in the United States—
6 (1) may not wear a facial covering; and
7 (2) shall wear a garment clearly identifying the
8 name of the agent and their affiliation with U.S. Im9 migration and Customs Enforcement. 10 SEC. 3. EXCEPTIONS.
11 (a) EXEMPTION.—Section 2 shall not apply to an
12 agent who is responding to an imminent threat to life or 13 serious bodily harm or is required to wear protective gear 14 for safety or medical purposes.
15 (b) REVIEW.—Not later than 48 hours after an agent
16 uses an exemption under subsection (a), the agent’s super17 visor shall document and review the use of such exemption 18 to determine whether it was appropriate, and if the super19 visor determines that such use was inappropriate, initiate 20 disciplinary review in accordance with the procedures 21 under section 4(a).
22 SEC. 4. COMPLIANCE AND ENFORCEMENT.
23 (a) PROCEDURES.—The Secretary of Homeland Se24 curity shall establish procedures to ensure compliance with 25 this Act, which shall include the following:
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3 •HR 4004 IH
1 (1) Procedures to ensure that any agent who
2 violates this Act shall be subject to disciplinary re3 view and possible sanctions. 4 (2) Procedures for the acceptance and review of
5 complaints alleging violations of this Act by the Of6 fice for Civil Rights and Civil Liberties of the De7 partment of Homeland Security. 8 (b) REPORT.—On an annual basis, the Secretary
9 shall submit to Congress a report on—
10 (1) any disciplinary actions imposed under sub11 section (a)(1) during the previous year; and 12 (2) any complaints received under subsection
13 (a)(2) during the previous year, including a descrip14 tion of the review of each such complaint, and any 15 action taken as a result of such a complaint.
16 SEC. 5. DEFINITIONS.
17 In this Act:
18 (1) IN GENERAL.—Except as otherwise pro19 vided, the terms in this Act have the meanings given 20 such terms in section 101 of the Immigration and
21 Nationality Act (8 U.S.C. 1101).
22 (2) AGENT.—The term ‘‘agent’’ means any em23 ployee, officer, or contractor acting under the au24 thority of U.S. Immigration and Customs Enforce25 ment.
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4 •HR 4004 IH
1 (3) ENFORCEMENT OPERATION.—The term
2 ‘‘enforcement operation’’ means any enforcement ac3 tivity under the immigration laws, including an ar4 rest, a detention, a questioning, a raid, or an inves5 tigation (whether on public or private property) car6 ried out by an agent. 7 (4) FACIAL COVERING.—The term ‘‘facial cov8 ering’’ means any mask, garment, helmet, or other 9 item that conceals or obscures the facial identity of 10 an individual, including a balaclava, a tactical mask, 11 or any face-shielding item.
12 (5) UNITED STATES.—The term ‘‘United
13 States’’ means each of the several States of the
14 United States, the District of Columbia, and terri15 tories and possessions of the United States. 16 SEC. 6. SEVERABILITY.
17 If any provision of this Act, or the application of such 18 provision to any person or circumstance, is held to be in19 valid, the remainder of the Act, and the application of the 20 remaining provisions, shall not be affected.
21 SEC. 7. EFFECTIVE DATE.
22 This Act shall take effect on the date that is 30 days 23 after the date of enactment of this Act.
Æ
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AMENDED IN ASSEMBLY JULY 17, 2025
AMENDED IN ASSEMBLY JULY 9, 2025
AMENDED IN ASSEMBLY JUNE 24, 2025
AMENDED IN ASSEMBLY JUNE 16, 2025
SENATE BILL No. 627
Introduced by Senators Wiener, Arreguín, and Pérez
(Coauthors: Senators Becker, Caballero, Gonzalez, McNerney, Menjivar, and Smallwood-Cuevas)
(Coauthors: Assembly Members Bonta, Carrillo, Elhawary, Garcia, Haney, Kalra, Lee, Ortega, and Rogers)
February 20, 2025
An act to add Sections 185.5, 13653.1, and 13653.2 to the Penal Code, relating to law enforcement. enforcement, and declaring the urgency thereof, to take effect immediately.
legislative counsel’s digest
SB 627, as amended, Wiener. Law enforcement: masks.
Existing law makes it a misdemeanor to wear a mask, false whiskers, or any personal disguise, as specified, with the purpose of evading or escaping discovery, recognition, or identification while committing a public offense, or for concealment, flight, evasion, or escape from arrest or conviction for any public offense.
This bill would make it a crime for a law enforcement officer to wear any mask or personal disguise while interacting with the public in the performance of their duties, except as specified. The bill would exempt an officer engaged in an undercover assignment from these provisions. a facial covering in the performance of their duties, except as specified.
The bill would define law enforcement officer as any officer of a local,
95
state, or federal law enforcement agency, or any person acting on behalf of a local, state, or anyone designated by California law as a peace officer and any officer or agent of a federal law enforcement agency, or any person acting on behalf of a federal law enforcement agency.
The bill would make a violation of these provisions punishable as an infraction or a misdemeanor, as specified. By creating a new crime, this bill would impose a state-mandated local program.
The bill would also require state, local, and federal law enforcement agencies to provide advance notice to any other law enforcement agencies in a jurisdiction in which they will be operating if the planned operation will likely include agency personnel masking, disguising, or otherwise concealing their identities from the public for any reason, as specified. agencies, before undertaking operations that are reasonably likely to involve agency personnel wearing facial coverings, to provide advance notice to the local law enforcement agency with jurisdiction over the location where the operation takes place, as specified.
The bill would require state and local law enforcement agencies, as defined, on or before July 1, 2026, to adopt a policy to prohibit the use of face masks and disguises by officers, except as specified. regulate the use of facial coverings pursuant to these provisions.
By imposing additional duties on local law enforcement agencies, this bill would create a state-mandated local program.
This bill would declare its provisions to be severable.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: majority 2⁄3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 185.5 is added to the Penal Code, to read:
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line 1 185.5. (a) A law enforcement officer shall not wear any mask line 2 or personal disguise while interacting with the public in the line 3 performance of their duties, except for medical grade masks that line 4 are surgical or N95 respirators designed to prevent the transmission line 5 of airborne diseases, masks designed to protect against exposure line 6 to smoke during a state of emergency related to wildfires, or line 7 protective gear used by Special Weapons and Tactics (SWAT) line 8 team officers necessary to protect their faces from harm while they line 9 perform their SWAT responsibilities. a facial covering in the line 10 performance of their duties.
line 11 (b) This section does not apply to an officer while they are line 12 engaged in an undercover assignment.
line 13 (c) (1) A violation of this section by any person acting on behalf line 14 of a local, state or federal agency, that is not a sworn peace officer line 15 or agent, shall be a misdemeanor.
line 16 (b) (1) For purposes of this section “facial covering” means line 17 any opaque mask, garment, helmet, or other item that conceals or line 18 obscures the facial identity of an individual, including, but not line 19 limited to, a balaclava, tactical mask, gator, ski mask, and any line 20 similar type of facial covering or face-shielding item. line 21 (2) A “facial covering” does not include either of the following:
line 22 (A) A translucent face shield or clear mask that does not conceal line 23 the wearer’s facial identity.
line 24 (B) A N95 medical mask or surgical mask to protect against line 25 transmission of disease or infection or any other mask or device, line 26 including, but not limited to, air-purifying respirators, full or half line 27 masks, or self-contained breathing apparatus necessary to protect line 28 against exposure to any toxin, gas, smoke, or any other hazardous line 29 environmental condition.
line 30 (c) This section does not apply to an officer performing their line 31 duties as an undercover operative during an active undercover line 32 operation.
line 33 (d) This section does not apply to protective gear used by Special line 34 Weapons and Tactics (SWAT) team officers that are necessary to line 35 protect their faces from harm while performing their SWAT line 36 responsibilities.
line 37 (2)
line 38 (e) A first violation of this section by a sworn peace officer of line 39 a local, state, or federal law enforcement agency, or an agent of a 95 — 3 — SB 627
line 1 state, local, or federal agency, shall be an infraction. A second or line 2 subsequent violation shall be an infraction or a misdemeanor. line 3 (d) (1)
line 4 (f) For the purposes of this section, “law the following terms line 5 have the following meanings:
line 6 (1) “Law enforcement officer” means a peace officer as defined line 7 in Section 830 as well as any officer or agent of a local, state, or line 8 federal law enforcement agency, agency or any person acting on line 9 behalf of a local, state, or federal law enforcement agency. line 10 (2) For the purposes of this section, “mask or personal disguise” line 11 does not include a face shield if it does not conceal the wearer’s line 12 face.
line 13 (2) “Undercover operation” is a planned act authorized by line 14 supervising agents, agencies, or a court warrant that uses an line 15 undercover operative to intentionally interact with a suspected line 16 criminal violator or others, or to obtain evidence of criminal line 17 activity.
line 18 (3) “Undercover operative” means a sworn peace officer using line 19 an assumed name or cover identity to interact with line 20 non-law-enforcement individuals or entities to collect evidence of line 21 criminal activity.
line 22 SEC. 2. Section 13653.1 is added to the Penal Code, to read:
line 23 13653.1. (a) On or before July 1, 2026, all state and local law line 24 enforcement agencies in the state a law enforcement agency shall line 25 adopt policies to prohibit the use of face masks and disguises by line 26 officers, with exceptions for undercover and Special Weapons and line 27 Tactics assignments, and appropriate face shields. regulate the use line 28 of facial coverings pursuant to Section 185.5.
line 29 (b) For the purposes of this section, “law enforcement agency” line 30 means any agency, department, or other entity of the state or any line 31 political subdivision thereof that employs any peace officer line 32 described in Chapter 4.5 (commencing with Section 830) of Title line 33 3 of Part 2.
line 34 SEC. 3. Section 13653.2 is added to the Penal Code, to read:
line 35 13653.2. (a) State, local, and federal law enforcement agencies line 36 shall provide advance notice to any other law enforcement agencies line 37 in a jurisdiction in which they will be operating if the planned line 38 operation will likely include agency personnel masking, disguising, line 39 or otherwise concealing their identities from the public for any line 40 reason. agencies, before undertaking operations that are 95 SB 627 — 4 —
line 1 reasonably likely to involve agency personnel wearing facial line 2 coverings, as defined in subdivision (b) of Section 185.5, in the line 3 performance of their duties shall provide advance notice to the line 4 local law enforcement agency with jurisdiction over the location line 5 where the operation takes place. This notice shall be given line 6 sufficiently in advance to prevent danger to law enforcement line 7 officers based on mistaken identities identities, but no less than line 8 12 hours before the operation, and shall include when and where line 9 they will be operating, their planned actions, and the approximate line 10 time and duration of the action.
line 11 (b) This section does not apply to either of the following:
line 12 (1) A law enforcement officer or officers performing their duties line 13 as an undercover operative during an active undercover operation. line 14 (2) Exigent circumstances involving an immediate danger to line 15 persons or property or the escape of a perpetrator. line 16 (c) For the purposes of this section, the following terms have line 17 the following meanings:
line 18 (1) “Undercover operation” is a planned act authorized by line 19 supervising agents, agencies, or a court warrant that uses an line 20 undercover operative to intentionally interact with a suspected line 21 criminal violator or others, or to obtain evidence of criminal line 22 activity.
line 23 (2) “Undercover operative” means a sworn peace officer using line 24 an assumed name or cover identity to interact with line 25 non-law-enforcement individuals or entities to collect evidence of line 26 criminal activity.
line 27 SEC. 4. The provisions of this act are severable. If any line 28 provision of this act or its application is held invalid, that invalidity line 29 shall not affect other provisions or applications that can be given line 30 effect without the invalid provision or application. line 31 SEC. 5. No reimbursement is required by this act pursuant to line 32 Section 6 of Article XIIIB of the California Constitution for certain line 33 costs that may be incurred by a local agency or school district line 34 because, in that regard, this act creates a new crime or infraction, line 35 eliminates a crime or infraction, or changes the penalty for a crime line 36 or infraction, within the meaning of Section 17556 of the line 37 Government Code, or changes the definition of a crime within the line 38 meaning of Section 6 of Article XIII B of the California line 39 Constitution.
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line 1 However, if the Commission on State Mandates determines that line 2 this act contains other costs mandated by the state, reimbursement line 3 to local agencies and school districts for those costs shall be made line 4 pursuant to Part 7 (commencing with Section 17500) of Division line 5 4 of Title 2 of the Government Code.
line 6 SEC. 6. This act is an urgency statute necessary for the line 7 immediate preservation of the public peace, health, or safety within line 8 the meaning of Article IV of the California Constitution and shall line 9 go into immediate effect. The facts constituting the necessity are:
line 10 To keep our immigrant communities safe, especially when under line 11 attack, and to boost public safety and trust in law enforcement, it line 12 is necessary that this act take effect immediately.
O
95 SB 627 — 6 —
SENATE BILL NO. 805
AMENDED IN ASSEMBLY JUNE 23, 2025
AMENDED IN SENATE MARCH 26, 2025
CALIFORNIA LEGISLATURE— 2025–2026 REGULAR SESSION
Introduced by Senator Pérez Senators Pérez and Wiener
(Principal coauthor: Assembly Member Elhawary)
(Coauthors: Senators Arreguín and Gonzalez)
(Coauthor: Assembly Member Lee)
February 21, 2025
An act to amend Section 2085 of the Insurance Code, relating to insurance. An act to amend Sections 538d, 538e, 538f, 538g, 538h, and 1299.07 of, and to add Sections 13653 and 13654 to, the Penal Code, relating to crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 805, as amended, Pérez. Homeowners’ insurance: declared disaster areas. Crimes.
Existing law prohibits credibly impersonating a peace officer, firefighter, or employee of a public utility, state or local government agency, or search and rescue team, as specified. Existing law also prohibits willfully and credibly impersonating a peace officer, firefighter, or employee of a public utility, state or local government agency, or search and rescue team through or on an internet website, or by other electronic means, for the purposes of defrauding another. A violation of these prohibitions is punishable as a misdemeanor.
This bill would extend these offenses to include willfully and credibly impersonating any of those entities through any means for the purpose of defrauding another. By expanding the scope of a crime, this bill would impose a state-mandated local program.
This bill would require personnel of a law enforcement agency operating in California to visibly display identification that includes either a name or badge number to the public when performing their duties. The bill would exempt personnel operating undercover from these provisions. The bill would make a violation of these provisions a misdemeanor. The bill would define personnel of a law enforcement agency as any officer of a local, state, or federal law enforcement agency or any person acting on behalf of a local, state, or federal law enforcement agency. By creating a new crime and imposing duties on local law enforcement, this bill would impose a state-mandated local program.
The bill would also authorize law enforcement to request an alleged government employee to present identification when there is probable cause or reasonable suspicion of a crime, including, but not limited to, impersonating a peace officer, firefighter, employee of a public utility or government agency, or member of a search and rescue team, or when there is a legitimate safety concern.
Existing law, the Bail Fugitive Recovery Persons Act, regulates bail fugitive recovery agents, defined as a
person given written authorization by the bail or depositor of bail and contracted to investigate, surveil, locate, and arrest a bail fugitive and any person employed to assist the bail or depositor of bail to investigate, surveil, locate, and arrest a bail fugitive.
This bill would prohibit a person authorized to apprehend a bail fugitive from using that position for the purposes of immigration enforcement and would require a person authorized to apprehend a bail fugitive to keep a defendant’s immigration status confidential, as specified.
This bill would declare these provisions are severable.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law generally regulates classes of insurance, including fire insurance and homeowners’ insurance. If a property owner or their legal representative is unable to identify the insurer of their property in a declared disaster area, existing law requires the Insurance Commissioner to provide the owner’s information to insurers that issue homeowners’ insurance policies covering fire risks at the owner’s request. Existing law requires an insurer that issued a homeowners’ insurance policy on that property to respond to the property owner or their legal representative within 90 days of receiving their information from the commissioner.
This bill would reduce the above-described timeframe for an insurer to respond to a property owner to 75 days.
Digest Key
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: noyes Bill Text
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS
FOLLOWS:
SECTION 1. The Legislature finds and declares all of the following:
(a) The federal government, through the United States Immigration and Customs Enforcement (ICE), has launched broad immigration enforcement efforts, deploying personnel from various federal agencies, including those within the Department of Justice, as part of the Trump Administration’s immigration enforcement operations.
(b) These actions have involved enforcement in and near locations, such as churches and schools, once considered sensitive areas, leading to widespread fear and confusion among impacted communities.
(c) ICE officers have conducted operations while wearing face coverings, including gaiter and ski masks, citing the need to protect their identities from online publication, which can include details like names, addresses, and telephone numbers.
(d) The use of face coverings during enforcement activities has raised concern and criticism, including calls from United States Senators urging the Department of Homeland Security to require ICE officers to identify themselves and limit the use of face coverings during operations. (e) At the same time, several news outlets have reported incidents of individuals impersonating ICE officers to harass or detain others, which undermines public trust in law enforcement, especially among vulnerable individuals, and pose a threat to public safety.
(f) Charges filed against individuals include kidnapping and impersonating a police officer after allegedly detaining a group of Latino men, impersonating an ICE officer on a university campus, and impersonating an ICE officer in connection with the sexual assault of a woman while threatening her with deportation. (g) While ICE has publicly condemned impersonations, the agency’s use of face coverings and lack of consistent, visible identification is contributing to public confusion and making it difficult for individuals to distinguish between authorized personnel and bad actors. (h) The state has both the authority and responsibility, under its police powers, to maintain order and protect the safety and well-being of all people within its jurisdiction from criminal conduct. (i) In order to carry out this duty effectively, the state must be able to distinguish between individuals who are lawfully exercising federal authority and those who are not, particularly in situations where a person is exhibiting unlawful behavior.
(j) Therefore, the state has a compelling interest in identifying and verifying who is operating under federal authority within the state.
SEC. 2. Section 538d of the Penal Code is amended to read:
538d. (a) Any person other than one who by law is given the authority of a peace officer, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card, or writing, of a peace officer, with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that they are a peace officer, or who willfully and credibly impersonates a peace officer through or on an internet website, or by other electronic means, or by any other means, for purposes of defrauding another, is guilty of a misdemeanor.
(b) (1) Any person, other than the one who by law is given the authority of a peace officer, who willfully wears, exhibits, or uses the badge of a peace officer with the intent of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that they are a peace officer, is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed two thousand dollars ($2,000), or by both that imprisonment and fine. (2) Any person who willfully wears or uses any badge that falsely purports to be authorized for the use of one who by law is given the authority of a peace officer, or which so resembles the authorized badge of a peace officer as would deceive any ordinary reasonable person into believing that it is authorized for the use of one who by law is given the authority of a peace officer, for the purpose of fraudulently impersonating a peace officer, or of fraudulently inducing the belief that they are a peace officer, is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed two thousand dollars ($2,000), or by both that imprisonment and fine.
(c) (1) Except as provided in subdivision (d), any person who willfully wears, exhibits, or uses, or who willfully makes, sells, loans, gives, or transfers to another, any badge, insignia, emblem, device, or any label, certificate, card, or writing, which falsely purports to be authorized for the use of one who by law is given the authority of a peace officer, or which so resembles the authorized badge, insignia, emblem, device, label, certificate, card, or writing of a peace officer as would deceive an ordinary reasonable person into believing that it is authorized for the use of one who by law is given the authority of a peace officer, is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed six months, by a fine not to exceed two thousand dollars ($2,000), or by both that imprisonment and fine, except that any person who makes or sells any badge under the circumstances described in this subdivision is subject to a fine not to exceed fifteen thousand dollars ($15,000).
(2) A local law enforcement agency in the jurisdiction that files charges against a person for a violation of paragraph (1) shall seize the badge, insignia, emblem, device, label, certificate, card, or writing described in paragraph (1).
(d) (1) The head of an agency that employs peace officers, as defined in Sections 830.1 and 830.2, is authorized to issue identification in the form of a badge, insignia, emblem, device, label, certificate, card, or writing that clearly states that the person has honorably retired following service as a peace officer from that agency. The identification authorized pursuant to this subdivision is separate and distinct from the identification authorized by Article 2 (commencing with Section 25450) of Chapter 2 of Division 5 of Title 4 of Part 6.
(2) If the head of an agency issues a badge to an honorably retired peace officer that is not affixed to a plaque or other memento commemorating the retiree’s service for the agency, the words “Honorably Retired” shall be clearly visible above, underneath, or on the badge itself. (3) The head of an agency that employs peace officers as defined in Sections 830.1 and 830.2 is authorized to revoke identification granted pursuant to this subdivision in the event of misuse or abuse. (4) For the purposes of this subdivision, the term “honorably retired” does not include an officer who has agreed to a service retirement in lieu of termination.
(e) (1) Vendors of law enforcement uniforms shall verify that a person purchasing a uniform identifying a law enforcement agency is an employee of the agency identified on the uniform. Presentation and examination of a valid identification card with a picture of the person purchasing the uniform and identification, on the letterhead of the law enforcement agency, of the person buying the uniform as an employee of the agency identified on the uniform shall be sufficient verification. (2) Any uniform vendor who sells a uniform identifying a law enforcement agency, without verifying that the purchaser is an employee of the agency, is guilty of a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000).
(3) This subdivision shall not apply if the uniform is to be used solely as a prop for a motion picture, television, video production, or a theatrical event, and prior written permission has been obtained from the identified law enforcement agency.
SEC. 3. Section 538e of the Penal Code is amended to read:
538e. (a) Any person, other than an officer or member of a fire department, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card, or writing of an officer or member of a fire department or a deputy state fire marshal, with the intent of fraudulently impersonating an officer or member of a fire department or the Office of the State Fire Marshal, or of fraudulently inducing the
belief that they are an officer or member of a fire department or the Office of the State Fire Marshal, or who willfully and credibly impersonates such an officer or member on an internet website, or by other electronic means, or by any other means, for purposes of defrauding another, is guilty of a misdemeanor. (b) (1) Any person, other than the one who by law is given the authority of an officer or member of a fire department, or a deputy state fire marshal, who willfully wears, exhibits, or uses the badge of a fire department or the Office of the State Fire Marshal with the intent of fraudulently impersonating an officer, or member of a fire department, or a deputy state fire marshal, or of fraudulently inducing the belief that they are an officer or member of a fire department, or a deputy state fire marshal, is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed two thousand dollars ($2,000), or by both that imprisonment and fine. (2) Any person who willfully wears or uses any badge that falsely purports to be authorized for the use of one who by law is given the authority of an officer or member of a fire department, or a deputy state fire marshal, or which so resembles the authorized badge of an officer or member of a fire department, or a deputy state fire marshal as would deceive any ordinary reasonable person into believing that it is authorized for the use of one who by law is given the authority of an officer or member of a fire department or a deputy state fire marshal, for the purpose of fraudulently impersonating an officer or member of a fire department, or a deputy state fire marshal, or of fraudulently inducing the belief that they are an officer or member of a fire department, or a deputy state fire marshal, is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed two thousand dollars ($2,000), or by both that imprisonment and fine. (c) Any person who willfully wears, exhibits, or uses, or who willfully makes, sells, loans, gives, or transfers to another, any badge, insignia, emblem, device, or any label, certificate, card, or writing, which falsely purports to be authorized for the use of one who by law is given the authority of an officer, or member of a fire department or a deputy state fire marshal, or which so resembles the authorized badge, insignia, emblem, device, label, certificate, card, or writing of an officer or member of a fire department or a deputy state fire marshal as would deceive an ordinary reasonable person into believing that it is authorized for use by an officer or member of a fire department or a deputy state fire marshal, is guilty of a misdemeanor, except that any person who makes or sells any badge under the circumstances described in this subdivision is guilty of a misdemeanor punishable by a fine not to exceed fifteen thousand dollars ($15,000). (d) Any person who, for the purpose of selling, leasing or otherwise disposing of merchandise, supplies or equipment used in fire prevention or suppression, falsely represents, in any manner whatsoever, to any other person that they are a fire marshal, fire inspector or member of a fire department, or that they have the approval, endorsement or authorization of any fire marshal, fire inspector or fire department, or member thereof, is guilty of a misdemeanor.
(e) (1) Vendors of uniforms shall verify that a person purchasing a uniform identifying a firefighting agency or department is an employee or authorized member of the agency or department identified on the uniform.
Examination of a valid photo identification card issued by a firefighting agency or department that designates the person as an employee or authorized member of the agency or department identified on the uniform shall be sufficient verification.
(2) If a person purchasing a uniform does not have a valid photo identification card issued by a firefighting agency or department, the person shall present an official letter of authorization from the firefighting agency or department designating that person as an employee or authorized member of the agency or department. The person shall also present a government issued photo identification card bearing the same name as listed in the letter of authorization issued by the agency or department. (3) Any uniform vendor who sells a uniform identifying a firefighting agency or department without
verifying that the purchaser is an employee or authorized member of the agency or department is guilty of a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000). (4) This subdivision shall not apply if the uniform is to be used solely as a prop for a motion picture, television, video production, or a theatrical event, and prior written permission has been obtained from the identified firefighting agency or department.
(f) This section shall not apply to either of the following:
(1) Use of a badge solely as a prop for a motion picture, television, or video production, or an entertainment or theatrical event.
(2) A badge supplied by a recognized employee organization as defined in Section 3501 of the Government Code representing firefighters or a state or international organization to which it is affiliated.
SEC. 4. Section 538f of the Penal Code is amended to read:
538f. Any person, other than an employee of a public utility or district as defined in Sections 216 and 11503 of the Public Utilities Code, respectively, who willfully presents themselves to a utility or district customer with the intent of fraudulently personating an employee of a public utility or district, or of fraudulently inducing the belief that they are an employee of a public utility or district, or who willfully and credibly impersonates an employee of a public utility or district on an internet website, or by other electronic means, or by any other means, for purposes of defrauding another, is guilty of a misdemeanor and shall be punished by imprisonment in a county jail not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. Nothing in this section shall be construed to prohibit conduct that arguably constitutes protected activity under state labor law or the National Labor Relations Act (Title 29, United States Code, Section 151 and following).
SEC. 5. Section 538g of the Penal Code is amended to read:
538g. (a) Any person, other than a state, county, city, special district, or city and county officer or employee, who willfully wears, exhibits, or uses the authorized badge, photographic identification card, or insignia of a state, county, city, special district, or city and county officer or employee, with the intent of fraudulently personating a state, county, city, special district, or city and county officer or employee, or of fraudulently inducing the belief that they are a state, county, city, special district, or city and county officer or employee, or who willfully and credibly impersonates such an officer or member on an internet website, or by other electronic means, or by any other means, for purposes of defrauding another, is guilty of a misdemeanor. (b) Any person who willfully wears, exhibits, or uses, or willfully makes, sells, loans, gives, or transfers to another, any badge, photographic identification card, or insignia, which falsely purports to be for the use of a state, county, city, special district, or city and county officer or employee, or which so resembles the authorized badge, photographic identification card, or insignia of a state, county, city, special district, or city and county officer or employee as would deceive an ordinary reasonable person into believing that it is authorized for use by a state, county, city, special district, or city and county officer or employee, is guilty of a misdemeanor, except that any person who makes or sells any badge under the circumstances described in this subdivision is subject to a fine not to exceed fifteen thousand dollars ($15,000). (c) This section shall not apply to either of the following:
(1) Use of a badge solely as a prop for a motion picture, television, or video production, or an entertainment or theatrical event.
(2) A badge supplied by a recognized employee organization as defined in Section 3501 of the Government Code or a state or international organization to which it is affiliated.
SEC. 6. Section 538h of the Penal Code is amended to read:
538h. (a) Any person, other than an officer or member of a government agency managed or affiliated search and rescue unit or team, who willfully wears, exhibits, or uses the authorized uniform, insignia, emblem, device, label, certificate, card, or writing of an officer or member of a government agency managed or affiliated search and rescue unit or team, with the intent of fraudulently impersonating an officer or member of a government agency managed or affiliated search and rescue unit or team, or of fraudulently inducing the belief that they are an officer or member of a government agency managed or affiliated search and rescue unit or team, or uses the same to obtain aid, money, or assistance within this state, or who willfully and credibly impersonates such an officer or member on an internet website, or by other electronic means, or by any other means, for purposes of defrauding another, is guilty of a misdemeanor. (b) (1) Any person, other than the one who by law is given the authority of an officer or member of a government agency managed or affiliated search and rescue unit or team, who willfully wears, exhibits, or uses the badge of a government agency managed or affiliated search and rescue unit or team with the intent of fraudulently impersonating an officer or member of a government agency managed or affiliated search and rescue unit or team, or fraudulently inducing the belief that they are an officer or member of a government agency managed or affiliated search and rescue unit or team, is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed two thousand dollars ($2,000), or by both that imprisonment and fine.
(2) Any person who willfully wears or uses any badge that falsely purports to be authorized for the use of one who by law is given the authority of an officer or member of a government agency managed or affiliated search and rescue unit or team, or that resembles the authorized badge of an officer or member of a government agency managed or affiliated search and rescue unit or team as would deceive any ordinary reasonable person into believing that it is authorized for the use of one who by law is given the authority of an officer or member of a government agency managed or affiliated search and rescue unit or team, for the purpose of fraudulently impersonating an officer or member of a government agency managed or affiliated search and rescue unit or team, or of fraudulently inducing the belief that they are an officer or member of a government agency managed or affiliated search and rescue unit or team, is guilty of a misdemeanor punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed two thousand dollars ($2,000), or by both that fine and imprisonment. (c) As used in this section, the following terms have the following meanings:
(1) “Member” means any natural person who is registered with an accredited disaster council for the purpose of engaging in disaster service without pay or other consideration. Food and lodging provided, or expenses reimbursed for these items, during a member’s activation do not constitute other consideration. (2) “Search and rescue unit or team” means an entity engaged in the acts of searching for, rescuing, or recovering by means of ground, marine, or air activity, any person that becomes lost, injured, or is killed while outdoors or as a result of a natural or manmade disaster, including instances involving searches for downed or missing aircraft.
SEC. 7. Section 1299.07 of the Penal Code is amended to read:
1299.07. (a) An individual authorized by Section 1299.02 to apprehend a bail fugitive shall not represent himself or herself themselves in any manner as being a sworn law enforcement officer.