LITTLE & SAPUTO
ATTORNEYS AT LAW
712 BANCROFT ROAD, SUITE 439
WALNUT CREEK, CA 94598-1531
(925) 944-5000
RECORDED AT THE REQUEST OF:
**
WHEN RECORDED RETURN TO:
Chattleton Place Partners LLC
***
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF
CHATTLETON PLACE
A Common Interest Development
If this document contains any restriction based on age, race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, veteran or military status, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code by submitting a
“Restrictive Covenant Modification” form, together with a copy of the attached document with the unlawful provision redacted to the county recorder’s of fice. The “Restrictive Covenant Modification” form can be obtained from the county recorder’s office and may be available on its internet website. The form may also be available from the party that provided you with this document. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status.
-i- 09/28/23
LITTLE & SAPUTO
ATTORNEYS AT LAW
712 BANCROFT ROAD, SUITE 439
WALNUT CREEK, CA 94598-1531
(925) 944-5000
TABLE OF CONTENTS
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF
CHATTLETON PLACE
A Common Interest Development
I APPLICABILITY **AND DISCLOSURES ..................................... 1 1 . 1 P R O P E R T Y O W N E D B Y D E C L A R A N T................................. 1
1.2 COMMON INTEREST DEVELOPMENT ................................ 1
1.3 APPLICABILITY OF RESTRICTIONS .................................. 1
1.4 PHASES ......................................................... 2
1.5 BOUNDARY MODIFICATIONS ....................................... 2
1.5.1 Added to Common Area ...................................... 2
1.5.2 Added to a Lot ............................................. 2
1.5.3 Added to Annexable Property ................................. 2 1 . 5 . 4 R e m o v e d F r o m D e c l a r a t i o n ................................... 2
1.5.5 Added to Declaration ........................................ 2 1 . 6 D I S C L O S U R E S ................................................... 2 I I D E F I N I T I O N S .......................................................... 3
2.1 ACCESSORY DWELLING UNITS ..................................... 3 2 . 2 A D D I T I O N A L C H A R G E S ............................................ 3 2 . 3 A L T E R A T I O N..................................................... 3 2 . 4 A N N E X A B L E P R O P E R T Y ........................................... 3
2.5 ARCHITECTURAL STANDARDS ..................................... 3 2 . 6 A R T I C L E S ....................................................... 3
2.7 ASSESSMENT .................................................... 3
2.8 ASSOCIATION .................................................... 3
2.9 ASSOCIATION MAINTENANCE AREA ................................. 3
2.10 BIO-RETENTION BASIN ............................................ 3 2 . 1 1 B O A R D.......................................................... 4 2 . 1 2 B U D G E T......................................................... 4 2 . 1 3 B Y L A W S......................................................... 4 2 . 1 4 C I D A C T ......................................................... 4 2 . 1 5 C I T Y ............................................................ 4 2 . 1 6 C O M M O N A R E A .................................................. 4 2 . 1 7 C O U N T Y ........................................................ 4 2 . 1 8 D E C L A R A N T ..................................................... 4 2 . 1 9 D E C L A R A T I O N ................................................... 5 2 . 2 0 D E C L A R A T I O N O F A N N E X A T I O N .................................... 5 2 . 2 1 E F F E C T I V E D A T E ................................................. 5 2 . 2 2 E L E C T R I C V E H I C L E C H A R G I N G S T A T I O N............................. 5 2 . 2 3 E M E R G E N C Y E X I T W I N D O W S ...................................... 5 2 . 2 4 E V A ............................................................ 5
2.25 FIRE LADDER ACCESS AREA ....................................... 5 -ii- 09/28/23
LITTLE & SAPUTO
ATTORNEYS AT LAW
712 BANCROFT ROAD, SUITE 439
WALNUT CREEK, CA 94598-1531
(925) 944-5000
2 . 2 6 F I R S T M O R T G A G E ................................................ 5 2 . 2 7 F I R S T M O R T G A G E E............................................... 5 2 . 2 8 I M P R O V E M E N T S ................................................. 5 2 . 2 9 I N V I T E E ......................................................... 5 2 . 3 0 L O T............................................................. 6 2 . 3 1 M A I N T A I N ....................................................... 6
2.32 MAINTENANCE EASEMENT ......................................... 6 2 . 3 3 M A I N T E N A N C E M A N U A L ........................................... 6
2.33.1 Association Maintenance Manual ............................... 6
2.33.2 Owner Maintenance Manual .................................. 6 2 . 3 4 M A P ............................................................ 6 2 . 3 5 M E M B E R ........................................................ 6 2 . 3 6 M O R T G A G E...................................................... 7 2 . 3 7 M O R T G A G E E .................................................... 7 2 . 3 8 N O T I C E A N D H E A R I N G ............................................ 7 2 . 3 9 O P E R A T I N G R U L E S ............................................... 7 2 . 4 0 O W N E R ......................................................... 7 2 . 4 1 P A R K ........................................................... 7 2 . 4 2 P A R K P E D E S T R I A N A C C E S S ....................................... 7
2.43 PEDESTRIAN ACCESS EASEMENT .................................. 7 2 . 4 4 P H A S E .......................................................... 7 2 . 4 5 P R I V A T E D R I V E .................................................. 7 2 . 4 6 P R O J E C T........................................................ 7 2 . 4 7 P R O J E C T D O C U M E N T S............................................ 7 2 . 4 8 P R O J E C T E X T E R I O R L I G H T ........................................ 7 2 . 4 9 P R O J E C T R E T A I N I N G W A L L ........................................ 8
2.50 PUBLIC PURCHASER .............................................. 8 2 . 5 1 P U B L I C R E P O R T.................................................. 8
2.52 REGULAR ASSESSMENT ........................................... 8
2.53 REIMBURSEMENT ASSESSMENT .................................... 8 2 . 5 4 R E S I D E N C E...................................................... 8 2 . 5 5 R E S T O R E ....................................................... 8
2.56 SHARED STORM DRAIN EASEMENT ................................ 8 2 . 5 7 S H A R E D S T O R M D R A I N I M P R O V E M E N T S ............................ 8
2.58 SPECIAL ASSESSMENT ............................................ 8 2 . 5 9 S O L A R C O L L E C T O R .............................................. 8 2 . 6 0 S O L A R R I G H T S A C T............................................... 9 2 . 6 1 S O L A R S H A D E C O N T R O L A C T ...................................... 9 2 . 6 2 S T O R M W A T E R A G R E E M E N T ....................................... 9 2 . 6 3 S T O R M W A T E R O & M P L A N ........................................ 9 2 . 6 4 S U B J E C T P R O P E R T Y ............................................. 9 2 . 6 5 V I S I B L E ......................................................... 9 2 . 6 6 Y A R D ........................................................... 9
2.67 YARD EASEMENT ................................................. 9 III OWNERSHIP AND EASEMENTS .......................................... 9
3.1 NON-SEVERABILITY ............................................... 9 3 . 2 O W N E R S H I P O F L O T S ............................................ 1 0 3 . 3 O W N E R S H I P O F C O M M O N A R E A................................... 1 0
3.4 EASEMENTS .................................................... 1 0
3.4.1 Adjoining Property ......................................... 1 0 -iii- 09/28/23
LITTLE & SAPUTO
ATTORNEYS AT LAW
712 BANCROFT ROAD, SUITE 439
WALNUT CREEK, CA 94598-1531
(925) 944-5000
3.4.2 Annexation of Annexable Property ............................. 1 0 3 . 4 . 3 A s s o c i a t i o n............................................... 1 0
3.4.4 Association Maintenance Areas ............................... 1 0 3 . 4 . 5 B i o - R e t e n t i o n B a s i n I r r i g a t i o n S y s t e m .......................... 1 0 3 . 4 . 6 C o m m o n A r e a ............................................ 1 1 3 . 4 . 7 E n c r o a c h m e n t ............................................ 1 1 3 . 4 . 8 E V A .................................................... 1 1 3 . 4 . 9 G o v e r n m e n t a l E n t i t i e s ...................................... 1 1 3 . 4 . 1 0 M a i l b o x e s ................................................ 1 1
3.4.11 Maintenance Easement ..................................... 1 1 3 . 4 . 1 2 M a p .................................................... 1 2
3.4.13 Park Pedestrian Access ..................................... 1 2
3.4.14 Pedestrian Access Easement ................................ 1 2 3 . 4 . 1 5 R i g h t o f E n t r y t o I n s p e c t ..................................... 1 2 3 . 4 . 1 6 R i g h t o f E n t r y t o P e r f o r m W o r k ............................... 1 2 3 . 4 . 1 7 R i g h t t o P h o t o g r a p h ........................................ 1 3 3 . 4 . 1 8 S h a r e d S t o r m D r a i n E a s e m e n t ............................... 1 3 3 . 4 . 1 9 S t o r m D r a i n s ............................................. 1 3
3.4.20 Support .................................................. 1 3
3.4.21 Utilities .................................................. 1 4 3 . 4 . 2 2 Y a r d E a s e m e n t............................................ 1 4 I V U S E R E S T R I C T I O N S ................................................... 1 4 4 . 1 A L T E R A T I O N S................................................... 1 4 4 . 2 A N I M A L S ....................................................... 1 4
4.2.1 Generally ................................................ 1 4
4.2.2 Number and Type .......................................... 1 5 4 . 2 . 3 N u i s a n c e ................................................ 1 5 4 . 2 . 4 S e r v i c e A n i m a l s ........................................... 1 5 4 . 3 A N T E N N A S A N D S A T E L L I T E D I S H E S ................................ 1 5
4.4 ASSOCIATION MAINTENANCE AREAS ............................... 1 5 4 . 4 . 1 A l t e r a t i o n s ............................................... 1 5 4 . 4 . 2 I r r i g a t i o n ................................................. 1 5
4.5 BIO-RETENTION BASIN ........................................... 1 6 4 . 6 D R A I N A G E...................................................... 1 6 4 . 7 D R O N E S ....................................................... 1 6 4 . 8 E V A ........................................................... 1 6 4 . 9 E X T E R I O R L I G H T I N G ............................................. 1 6
4.10 FIRE LADDER ACCESS AREA ...................................... 1 6 4 . 1 1 I N V I T E E S ....................................................... 1 7
4.12 MAINTENANCE EASEMENT ........................................ 1 7 4 . 1 3 M I N E R A L E X P L O R A T I O N .......................................... 1 7 4 . 1 4 O P E R A T I N G R U L E S .............................................. 1 7 4 . 1 5 P A R K I N G A N D V E H I C L E S ......................................... 1 8 4 . 1 5 . 1 D r i v e w a y s................................................ 1 8 4 . 1 5 . 2 E V A .................................................... 1 8
4.15.3 Garages ................................................. 1 8 4 . 1 5 . 4 P r i v a t e D r i v e.............................................. 1 8 4 . 1 5 . 5 R e m o v a l ................................................. 1 8 4 . 1 5 . 6 V e h i c l e R e s t r i c t i o n s ........................................ 1 8
4.15.7 Vehicle Washing/Maintenance ................................ 1 8 -iv- 09/28/23
LITTLE & SAPUTO
ATTORNEYS AT LAW
712 BANCROFT ROAD, SUITE 439
WALNUT CREEK, CA 94598-1531
(925) 944-5000
4 . 1 6 P A R K P E D E S T R I A N A C C E S S ...................................... 1 8
4.17 PEDESTRIAN ACCESS EASEMENT ............................... 1 8 4 . 1 8 R E F U S E........................................................ 1 8 4 . 1 9 R E N T A L O F L O T S ................................................ 1 9 4 . 2 0 S I G N S ......................................................... 1 9 4 . 2 0 . 1 D e c l a r a n t ................................................ 1 9
4.20.2 Legal Proceedings ......................................... 1 9 4 . 2 0 . 3 N o n - C o m m e r c i a l .......................................... 1 9
4.20.4 Project Identification ........................................ 1 9 4 . 2 0 . 5 S a l e o r R e n t .............................................. 1 9 4 . 2 0 . 6 S i g n s A p p r o v e d B y B o a r d ................................... 1 9 4 . 2 1 S O L A R C O L L E C T O R S ............................................ 1 9 4 . 2 2 S O L A R S H A D E R E S T R I C T I O N S .................................... 2 0 4 . 2 3 S P O R T S E Q U I P M E N T ............................................ 2 0 4 . 2 4 T A X E S ......................................................... 2 0 4 . 2 5 U S E A N D O C C U P A N C Y O F R E S I D E N C E S ............................ 2 0 4 . 2 6 U S E O F C O M M O N A R E A .......................................... 2 1 4 . 2 7 W I N D O W C O V E R I N G S ............................................ 2 1
4.28 YARD EASEMENTS .............................................. 2 1 V I M P R O V E M E N T S ...................................................... 2 1 5 . 1 M A I N T A I N I N G C O M M O N A R E A A N D I M P R O V E M E N T S.................. 2 1
5.1.1 Association Maintenance Manual .............................. 2 1 5 . 1 . 2 B i o - R e t e n t i o n B a s i n s ....................................... 2 2 5 . 1 . 3 P r i v a t e D r i v e / E V A.......................................... 2 2 5 . 1 . 4 P r o j e c t E x t e r i o r L i g h t ....................................... 2 2 5 . 1 . 5 P r o j e c t R e t a i n i n g W a l l ...................................... 2 2 5 . 1 . 6 R e c o r d s ................................................. 2 2
5.1.7 Regular Inspections ........................................ 2 2 5 . 2 A L T E R A T I O N S T O C O M M O N A R E A ................................. 2 2 5 . 2 . 1 A p p r o v a l ................................................. 2 2
5.2.2 Funding ................................................. 2 2 5 . 3 M A I N T A I N I N G L O T S A N D R E S I D E N C E S.............................. 2 2
5.3.1 Association Maintenance Areas ............................... 2 2 5 . 3 . 2 D r i v e w a y s................................................ 2 2 5 . 3 . 3 E x t e r i o r L i g h t i n g ........................................... 2 3 5 . 3 . 4 M a i l b o x e s ................................................ 2 3
5.3.5 Park Pedestrian Access ..................................... 2 3
5.3.6 Pedestrian Access Easement ................................ 2 3 5 . 3 . 7 P r o j e c t R e t a i n i n g W a l l ...................................... 2 3
5.3.8 Public Utility .............................................. 2 3
5.3.9 Shared Drainage Improvements .............................. 2 3 5 . 3 . 1 0 S i d e w a l k s ................................................ 2 3 5 . 3 . 1 1 S o l a r C o l l e c t o r s ........................................... 2 3
5.3.12 Storm Drainage ........................................... 2 3
5.3.13 Utility Lines Serving A Single Lot .............................. 2 4
5.3.14 Utility Lines Serving More Than One Lot ........................ 2 4 5 . 4 A L T E R A T I O N S T O L O T S A N D R E S I D E N C E S .......................... 2 4 5 . 5 M A I N T A I N I N G F E N C E S A N D W A L L S................................. 2 4
5.5.1 Fences Separating Common Area and Lots ..................... 2 4
5.5.2 Other Fences and Walls ..................................... 2 4 -v- 09/28/23
LITTLE & SAPUTO
ATTORNEYS AT LAW
712 BANCROFT ROAD, SUITE 439
WALNUT CREEK, CA 94598-1531
(925) 944-5000
5 . 5 . 3 P r o j e c t R e t a i n i n g W a l l s ..................................... 2 4 5 . 6 L A N D S C A P I N G .................................................. 2 4
5.6.1 Association Maintenance Areas ............................... 2 5 5 . 6 . 2 C o m m o n A r e a ............................................ 2 5 5 . 6 . 3 L o t s..................................................... 2 5 5 . 6 . 4 P u b l i c R i g h t - o f - W a y ........................................ 2 5
5.6.5 Interim Phasing Irrigation Expenses ............................ 2 5
5.6.6 Solar Shade Control Act ..................................... 2 5 5 . 7 E L E C T R I C V E H I C L E C H A R G I N G S T A T I O N S .......................... 2 5
5.7.1 EVCS Owner Responsibilities ................................ 2 5
5.7.2 Association Responsibilities .................................. 2 6
5.8 ASSOCIATION’S RIGHT TO ENTER AND MAINTAIN .................... 2 6
5.9 DAMAGE AND DESTRUCTION – ASSOCIATION ....................... 2 6 5 . 9 . 1 B i d s .................................................... 2 6
5.9.2 Sufficient Proceeds ........................................ 2 7
5.9.3 Additional Special Assessment ............................... 2 7
5.10 DAMAGE AND DESTRUCTION – OWNERS ........................... 2 7 5 . 1 1 C O N D E M N A T I O N O F C O M M O N A R E A ............................... 2 7 VI FUNDS AND ASSESSMENTS ............................................ 2 7 6 . 1 C O V E N A N T S T O P A Y ............................................. 2 7
6.1.1 Liability for Payment ........................................ 2 8
6.1.2 Funds Held in Trust ........................................ 2 8 6 . 1 . 3 O f f s e t s .................................................. 2 8
6.2 REGULAR ASSESSMENTS ........................................ 2 8
6.2.1 Payment of Regular Assessments ............................. 2 8
6.2.2 Allocation of Regular Assessments ............................ 2 8
6.2.3 Exemptions from Regular Assessment ......................... 2 9 6 . 2 . 4 N o n - W a i v e r o f A s s e s s m e n t s ................................. 2 9
6.3 SPECIAL ASSESSMENTS ......................................... 2 9
6.4 REIMBURSEMENT ASSESSMENTS ................................. 2 9
6.5 LIMITATIONS ON ASSESSMENTS ................................... 3 0 6 . 6 A C C O U N T S A N D R E V I E W S ........................................ 3 0
6.6.1 Types of Accounts ......................................... 3 0
6.6.2 Reserve Account .......................................... 3 0
6.6.3 Current Operating Account ................................... 3 0
6.6.4 Board Review of Accounts and Finances ........................ 3 0
6.6.5 Accountant Review of Financial Statements ..................... 3 0
6.7 BUDGET PREPARATION .......................................... 3 0
6.8 DISTRIBUTION OF BUDGET, FINANCIAL STATEMENTS AND REPORTS . . . 31
6.8.1 Annual Budget Report ...................................... 3 1
6.8.2 Annual Policy Statement .................................... 3 1
6.8.3 Accountant Review ......................................... 3 1
6.9 RESERVE ACCOUNT STUDY ...................................... 3 1
6.10 ENFORCEMENT OF ASSESSMENTS ............................... 3 1
6.10.1 Notice of Delinquent Assessment ............................. 3 1
6.10.2 Procedures ............................................... 3 1
6.10.3 Additional Charges ......................................... 3 2 6 . 1 0 . 4 S a t i s f a c t i o n o f L i e n......................................... 3 2 6 . 1 0 . 5 L i e n E l i m i n a t e d B y F o r e c l o s u r e ............................... 3 3
6.10.6 Waiver of Homestead Protections ............................. 3 3 -vi- 09/28/23
LITTLE & SAPUTO
ATTORNEYS AT LAW
712 BANCROFT ROAD, SUITE 439
WALNUT CREEK, CA 94598-1531
(925) 944-5000
6.11 SUBORDINATION OF ASSESSMENT LIEN ............................ 3 3 VII MEMBERSHIP IN AND DUTIES OF THE ASSOCIATION ....................... 3 3 7 . 1 T H E O R G A N I Z A T I O N ............................................. 3 3 7 . 2 M E M B E R S H I P ................................................... 3 3
7.2.1 Appurtenant to Ownership ................................... 3 3
7.2.2 Annexation ............................................... 3 3 7 . 3 V O T I N G ........................................................ 3 4 7 . 4 O P E R A T I N G R U L E S .............................................. 3 4 7 . 5 T R A N S F E R S O F C O M M O N A R E A ................................... 3 4 7 . 5 . 1 E x c l u s i v e U s e R i g h t s t o O w n e r s .............................. 3 4
7.5.2 Value of Property Being Sold ................................. 3 4 7 . 6 I N S U R A N C E .................................................... 3 4
7.6.1 General Provisions and Limitations ............................ 3 5 7 . 6 . 2 T y p e s o f C o v e r a g e ......................................... 3 6 7 . 6 . 3 I n s u r a n c e b y O w n e r ........................................ 3 6
7.6.4 Annual Review ............................................ 3 6 7 . 6 . 5 E l e c t r i c V e h i c l e C h a r g i n g S t a t i o n s ............................. 3 7
7.7 ANNUAL BUDGET REPORT AND ANNUAL POLICY STATEMENT ......... 3 7 7 . 8 M O N E T A R Y P E N A L T I E S .......................................... 3 7
7.9 DOCUMENTS FOR DISTRIBUTION TO PROSPECTIVE PURCHASERS ..... 3 7
7.10 AUTHORITY TO REPRESENT ASSOCIATION ......................... 3 7 VIII DEVELOPMENT RIGHTS ............................................... 3 8 8 . 1 L I M I T A T I O N S O F R E S T R I C T I O N S ................................... 3 8
8.2 RIGHTS OF ACCESS AND COMPLETION OF CONSTRUCTION ........... 3 8
8.3 SIZE AND APPEARANCE OF PROJECT .............................. 3 8 8 . 4 M A R K E T I N G R I G H T S ............................................. 3 8 8 . 5 R I G H T S T O R E S T R I C T A C C E S S .................................... 3 9 8 . 6 T I T L E R I G H T S ................................................... 3 9 I X R I G H T S O F M O R T G A G E E S ............................................. 3 9 9 . 1 C O N F L I C T ...................................................... 3 9
9.2 INSPECTION OF BOOKS AND RECORDS ............................ 3 9 9 . 3 M O R T G A G E P R O T E C T I O N ........................................ 3 9 X A M E N D M E N T A N D E N F O R C E M E N T ...................................... 3 9 1 0 . 1 A M E N D M E N T S .................................................. 3 9 1 0 . 1 . 1 A p p r o v a l ................................................. 3 9
10.1.2 Unilateral Amendment and Prospective Application ............... 4 0 1 0 . 1 . 3 R e s t a t e m e n t .............................................. 4 0 1 0 . 1 . 4 R e c o r d a t i o n .............................................. 4 1 1 0 . 2 E N F O R C E M E N T ................................................. 4 1 1 0 . 2 . 1 R i g h t s t o E n f o r c e .......................................... 4 1
10.2.2 Request to Enforce ......................................... 4 1 1 0 . 2 . 3 V i o l a t i o n o f L a w ........................................... 4 1 1 0 . 2 . 4 R e m e d i e s C u m u l a t i v e ...................................... 4 2 1 0 . 2 . 5 N o W a i v e r................................................ 4 2 1 0 . 3 D I S P U T E S W I T H D E C L A R A N T...................................... 4 2 1 0 . 3 . 1 D e f i n i t i o n s................................................ 4 2 1 0 . 3 . 2 A s s o c i a t i o n............................................... 4 3 -vii- 09/28/23
LITTLE & SAPUTO
ATTORNEYS AT LAW
712 BANCROFT ROAD, SUITE 439
WALNUT CREEK, CA 94598-1531
(925) 944-5000
1 0 . 3 . 3 O w n e r s .................................................. 4 4 1 0 . 4 M A N D A T O R Y B I N D I N G A R B I T R A T I O N ............................... 4 5
10.4.1 Federal Arbitration Act ...................................... 4 5 1 0 . 4 . 2 P a r t i c i p a t i o n b y O t h e r P a r t i e s................................. 4 6 1 0 . 4 . 3 A r b i t r a t o r................................................. 4 6 1 0 . 4 . 4 S t a t u t e s o f L i m i t a t i o n ....................................... 4 6
10.4.5 Motions and Remedies ...................................... 4 6 1 0 . 4 . 6 D i s c o v e r y ................................................ 4 7 1 0 . 4 . 7 F u l l D i s c l o s u r e ............................................ 4 7
10.4.8 Title 7 Claim and Measure of Damages ......................... 4 7
10.4.9 Proceedings .............................................. 4 8 1 0 . 4 . 1 0 D e c i s i o n ................................................. 4 8
10.4.11 Fees and Costs ........................................... 4 8
10.4.12 JURY, DISCOVERY AND APPEAL NOT AVAILABLE ............. 4 8 XI ARCHITECTURAL AND LANDSCAPING CONTROL .......................... 4 9
11.1 APPLICABILITY .................................................. 4 9
11.1.1 Generally ................................................ 4 9 1 1 . 1 . 2 E x c e p t i o n s ............................................... 4 9 1 1 . 1 . 3 D e c l a r a n t E x e m p t i o n ....................................... 4 9 1 1 . 1 . 4 V a r i a n c e s ................................................ 4 9 1 1 . 1 . 5 R e l a t i o n s h i p t o G o v e r n m e n t a l A p p r o v a l s ........................ 4 9
11.2 RESERVATION TO DECLARANT .................................... 4 9 1 1 . 3 M E M B E R S ...................................................... 4 9
11.3.1 Declarant’s Right to Appoint .................................. 5 0
11.3.2 Board’s Initial Right to Appoint ............................... 5 0 1 1 . 3 . 3 V a c a n c i e s................................................ 5 0 1 1 . 3 . 4 R i g h t s o f B o a r d............................................ 5 0 1 1 . 4 D U T I E S A N D P O W E R S............................................ 5 0 1 1 . 4 . 1 D u t i e s ................................................... 5 0 1 1 . 4 . 2 P o w e r s .................................................. 5 0 1 1 . 4 . 3 C o n s u l t a n t s .............................................. 5 1
11.5 APPLICATION FOR APPROVAL OF IMPROVEMENTS ................... 5 1
11.6 BASIS FOR APPROVAL OF IMPROVEMENTS ......................... 5 1
11.6.1 Generally ................................................ 5 1
11.6.2 Additional Requirements for Approval of Electric Vehicle Charging S t a t i o n s ................................................. 5 1
11.6.3 Additional Requirements for Approval of Landscape/Irrigation ....... 5 1
11.6.4 Additional Requirements for Approval of Solar Collectors ........... 5 2
11.7 FORM OF APPROVALS, CONDITIONAL APPROVALS AND DENIALS ...... 5 2 1 1 . 8 W O R K ......................................................... 5 2 1 1 . 9 D E T E R M I N A T I O N O F C O M P L I A N C E ............................... 5 3 1 1 . 9 . 1 N o t i c e o f C o m p l e t i o n ....................................... 5 3 1 1 . 9 . 2 I n s p e c t i o n................................................ 5 3 1 1 . 1 0 F A I L U R E T O R E M E D Y T H E N O N - C O M P L I A N C E ...................... 5 3 1 1 . 1 1 W A I V E R ........................................................ 5 3
11.12 APPEAL OF DECISION OF COMMITTEE .............................. 5 3 1 1 . 1 3 N O L I A B I L I T Y.................................................... 5 4
11.14 EVIDENCE OF APPROVAL OR DISAPPROVAL ........................ 5 4 -viii- 09/28/23
LITTLE & SAPUTO
ATTORNEYS AT LAW
712 BANCROFT ROAD, SUITE 439
WALNUT CREEK, CA 94598-1531
(925) 944-5000
X I I A N N E X A T I O N......................................................... 5 4 1 2 . 1 P R O P E R T Y W H I C H M A Y B E A N N E X E D .............................. 5 4
12.1.1 Annexable Property ........................................ 5 4
12.1.2 Other Property ............................................ 5 5
12.2 PROCEDURE FOR ANNEXATION ................................... 5 5 1 2 . 3 E F F E C T O F A N N E X A T I O N ......................................... 5 5 1 2 . 4 R E S C I S S I O N A N D A M E N D M E N T.................................... 5 5 X I I I M I S C E L L A N E O U S P R O V I S I O N S ......................................... 5 6 1 3 . 1 B I N D I N G........................................................ 5 6 1 3 . 2 B O N D E D O B L I G A T I O N S........................................... 5 6 1 3 . 2 . 1 I m p r o v e m e n t s C o m p l e t e .................................... 5 6 1 3 . 2 . 2 I m p r o v e m e n t s N o t C o m p l e t e ................................. 5 6 1 3 . 2 . 3 A c t i o n b y M e m b e r s......................................... 5 6 1 3 . 2 . 4 R e l e a s e o f B o n d........................................... 5 6 1 3 . 3 C O N F L I C T ...................................................... 5 7
13.4 CONSTRUCTION OF PROVISIONS .................................. 5 7
13.5 DOCUMENTS TO BE GIVEN TO PURCHASERS ........................ 5 7 1 3 . 6 E X H I B I T S ....................................................... 5 7 1 3 . 7 G E N D E R , N U M B E R A N D C A P T I O N S ............................... 5 7
13.8 REQUIRED ACTIONS OF ASSOCIATION ............................. 5 7
13.9 SEVERABILITY OF PROVISIONS .................................... 5 7
13.10 SUCCESSOR STATUTES .......................................... 5 7 1 3 . 1 1 T E R M O F D E C L A R A T I O N.......................................... 5 7 1 09/28/23
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DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF
CHATTLETON PLACE
A Common Interest Development
ARTICLE I
APPLICABILITY **AND DISCLOSURES
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF CHATTLETON PLACE (“Declaration”) is made by CHATTLETON PLACE PARTNERS LLC, a California limited liability company (“Declarant”).
1.1 PROPERTY OWNED BY DECLARANT : Declarant is the owner of the real property located in the City of San Pablo, County of Contra Costa, State of California, described as follows:
Lots 2 through 10, inclusive, and Parcels A, D, F and G, as shown on the final map of Tract 9599 “Chattleton Place” filed for record on **, in Book ** of Maps at Pages ** through **, inclusive, in the Official Records of the County of Contra Costa, State of California.
1.2 COMMON INTEREST DEVELOPMENT
: Declarant intends to develop the Subject
Property and the Annexable Property as a Common Interest Development which shall be a planned development as defined in California Civil Code Section 4175. The Project is intended to be created in conformity with the provisions of the CID Act and governed by the Association which shall be an association as defined in California Civil Code Section 4080. Owners of Lots shall be Members of the Association as defined in Calif ornia Civil Code Section 4160. To establish the Project, Declarant desires to impose on the Subject Property, and any property annexed thereto, these mutually beneficial restrictions, easements, assessments and liens under a comprehensive general plan of improvement and development for the benefit of all of the Owners, the Lots and Common Area within the Subject Property and any property annexed thereto. The Project shall be established as a Common Interest Development upon the first conveyance of title to a Lot subject to this Declaration.
1.3 APPLICABILITY OF RESTRICTIONS
: Pursuant to California Civil Code Sections
4250 and 5975, Declarant hereby declares that the Project is subject to the provisions of this Declaration. The Project shall be held, conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved subject to the limitations, easements, uses, obligations, covenants, conditions and restrictions stated in this Declaration all of which are declared to be in furtherance of the plan for the subdivision, development, governance and management of the Project as a Common Interest Development. All of the limitations, easements, uses, obligations, covenants, conditions and restrictions stated in this Declaration shall run with the Project and shall inure to the benefit of and be binding on all Owners and all other parties having or acquiring any right, title or interest in any part of the Project.
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1.4 PHASES : The Subject Property and the Annexable Property are intended to be developed in two (2) or more Phases. The first P hase consists of the Subject Property. Prior to recording a Declaration of Annexation, no portion of the Annexable Property is subject to any provision of this Declaration. Declarant may, but has no obligation to, annex all or any portion of the Annexable Property to the Project by recording a Declaration of Annexation in compliance with the provisions of this Declaration. After recordation of a Declaration of Annexation and either the conveyance of title to a Lot described in the Declaration of Annexation or the commencement of Regular Assessments for Lots described in the Declaration of Annexation, whichever first occurs, the property described in the Declaration of Annexation will constitute a part of the Project and be subject to this Declaration.
1.5 BOUNDARY MODIFICATIONS
: If the boundaries of real property change as a result of one or more subsequently recorded final maps, amended final maps, parcel maps, amended parcel maps, certificates of correction, lot line adjustments and/or records of survey, then, for all purposes of this Declaration:
1.5.1 Added to Common Area
: Property which is removed from a Lot or a
Common Area parcel and added to a Common Area parcel shall thereafter be part of that Common Area parcel;
1.5.2 Added to a Lot
: Property which is removed from a Lot or a Common Area parcel and added to a Lot shall thereafter be part of that Lot;
1.5.3 Added to Annexable Property : Property which is added to Annexable Property shall thereafter be part of the Annexable Property;
1.5.4 Removed From Declaration : Property which is removed from a Lot or Common Area parcel and added to real property which is not subject to this Declaration shall no longer constitute a part of such Lot or Common Area and shall no longer be subject to this Declaration; and
1.5.5 Added to Declaration
: Property not subject to this Declaration which is
added to a Lot or Common Area parcel shall be part of the Lot or Common Area parcel to which it is added and shall automatically be subject to all provisions of this Declaration.
1.6 DISCLOSURES
: The following disclosures were correct as of the date of recordation of this Declaration:
California Civil Code Section 4255 mandates that the following disclosure be included in this Declaration because the Project is within the San Francisco Bay Conservation and Development Commission jurisdiction, as described in Section 66610 of the Government Code.
NOTICE OF SAN FRANCISCO BAY
CONSERVATION AND DEVELOPMENT COMMISSION JURISDICTION
This property is located within the jurisdiction of the San Francisco Bay Conservation and Development Commission. Use and development of property within the commission’s jurisdiction may be subject to special regulations, restrictions, and permit requirements. You may wish to investigate and determine whether they are acceptable to you and your intended use of the property before you complete your transaction.
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ARTICLE II
DEFINITIONS
The capitalized terms used in this Declaration which are defined in this Article shall have the meanings specified in this Article unless otherwise expressly stated or the context clearly requires a different meaning.
2.1 ACCESSORY DWELLING UNITS : “Accessory Dwelling Units” shall mean the eight (8) dwelling units constructed as an adjunct part of the Residence with separate ground floor entrances on each of Lots **, **, ** and **.
2.2 ADDITIONAL CHARGES
: “Additional Charges” shall mean costs, fees, charges and expenditures, including without limitation, attorneys’ fees, late charges, interest and recording and filing fees actually incurred by the Associ ation in collecting and/or enforcing payment of Assessments, fines and/or penalties.
2.3 ALTERATION
: “ Alteration” shall mean constructing, performing, installing, remodeling, repairing, replacing, demolishing and/or changing any Improvement or changing the color, tone, intensity, shade or hue of any Improvement.
2.4 ANNEXABLE PROPERTY : “Annexable Property” shall mean all of the real property shown on the Map, excluding the Subject Property.
2.5 ARCHITECT URAL STANDARDS: “Architectural Standards” shall mean the portion of the Operating Rules which specifically address architectural and aesthetic matters.
2.6 ARTICLES : “Articles” shall mean the Articles of Incorporation of Chattleton Place Owners Association, which are or shall be filed in the Office of the Secretary of State of the State of California.
2.7 ASSESSMENT
: “ Assessment” shall mean a Regular Assessment, Special Assessment or Reimbursement Assessment.
2.8 ASSOCIATION : “Association” shall mean Chattleton Place Owners Association, its successors and assigns, a nonprofit mutual benefit corporation incorporated under the laws of the State of California.
2.9 ASSOCIATION MAINTENANCE AREA
: “ Association Maintenance Area ” shall
mean the unenclosed portions of each Lot, **excluding Yard Easements. Each Association Maintenance Area encompasses the entire Lot excluding the Residence **and Yard Easements.
Each Association Maintenance Area includes all landscaping within the Association Maintenance Area and the landscape irrigation systems and components, for the Association Maintenance Area, including wiring, automatic valves, controllers and timers, wherever located. The irrigation system for each Bio-Retention Basin shall be connected to an adjacent Lot as described in Section 4.** (Irrigation System).
2.10 BIO-RETENTION BASIN
: “Bio-Retention Basin” shall mean shall mean the storm water conveyance element consisting of a sunken basin filter bed which can retain and filter storm and irrigation water using natural vegetation and soils as the primary filtering agent. Each Bio- 4 09/28/23
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Retention Basin consists of two (2) parts. “Part One,” the surface landscape portion, is a sunken, vegetated, earthen basin area with approximately one and one half (1 ½) feet of highly porous soil in which special vegetative materials have been installed by Declarant. “Part Two” is a drainage system which has been constructed beneath Part One of the Bio- Retention Basins that consists of perforated drain pipes surrounded by drain rock (forming a “Collector Manifold”), together with outlets, overflows and collector pipes that are connected to and convey the filtered water to solid pipes located in the Private Drive which pipes discharge into the City’s storm water system in Chattleton Lane. Each Bio-Retention Basin includes all landscaping within it and the landscape irrigation systems and components, for the Bio-Retention Basin, including wiring, automatic valves, controllers and timers, wherever located. The Bio-Retention Basins are located on Common Area Parcels C, D and E. **The irrigation system for each Bio-Retention Basin shall be connected to an adjacent Lot as described in Section 4.5** (Bio-Retention Basin).
2.11 BOARD
: “Board” shall mean the Board of Directors of the Association.
2.12 BUDGET : “Budget” shall mean a pro forma operating budget prepared by the Board in accordance with Section 6.7 (Budget Preparation).
2.13 BYLAWS : “Bylaws” shall mean the Bylaws of the Association and any amendments thereto.
2.14 CID ACT : “CID Act” shall mean the Davis-Stirling Common Interest Development Act as defined in California Civil Code Section 4000.
2.15 CITY : “City” shall mean the City of San Pablo, California.
2.16 COMMON AREA : “Common Area” shall mean Parcels A, D, F and G, as shown on the Map. “Common Area” shall also mean any property described as Common Area in a Declaration of Annexation and any real property estate or interest owned by the Association.
2.17 COUNTY : “County” shall mean the County of Contra Costa, State of California.
2.18 DECLARANT : “Declarant” shall mean CHATTLETON PLACE PARTNERS LLC, a California limited liability company. Declarant s hall have the right to assign any of its powers, exemptions, rights of consent, appointment or approval or other rights of Declarant set forth in this Declaration (collectively referred to as “ Declarant Rights ”) by an express written document (“Assignment Document”) recorded in the County or in a writing delivered to the Association. Any Assignment Document may assign only specific Declarant Rights and may be subject to such conditions and limitations as are set forth in the Assignment Document. The assignee shall be a Declarant and shall have full authority to exercise Declarant Rights with respect to the portions of the Subject Property or Annexable Property owned by the assignee (except as may be limited by an Assignment Document signed by that Declarant); provided, however, the Declarant identified in the first sentence of this Section shall have full authority to exercise Declarant Rights without the consent of any other Declarant (except as may be limited in an Assignment Document signed by the Declarant identified in the first sentence of this Section). In addition to the preceding assignment provisions, any person or entity who acquires all of the Subject Property and all of the Annexable Property then owned by the Declarant identified in the first sentence of this Section shall be a Declarant; provided, however, this sentence shall only apply if the property acquired does or will consist of more than one (1) Lot.
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2.19 DECLARATION : “Declaration” shall mean this Declaration of Covenants, Conditions and Restrictions of Chattleton Place and includes any subsequently recorded amendments.
2.20 DECLARATION OF ANNEXATION : “Declaration of Annexation” shall mean any instrument recorded in the County which extends the provisions of this Declaration to all or a portion of the Annexable Property or any other property and includes any subsequently recorded amendments.
2.21 EFFECTIVE DATE
: “ Effective Date” shall mean, with respect to a Declaration of Annexation, the first to occur of the following (a) the first conveyance of title to a Lot described in the Declaration of Annexation, (b) conveyance to the Association of title to Common Area described in the Declaration of Annexation or (c) the commencement of Regular Assessments for Lots described in the Declaration of Annexation.
2.22 ELECTRIC VEHICLE CHARGING STATION
: “Electric Vehicle Charging Station”
shall mean a charging station for electric motor vehicles, as further defined in California Civil Code Section 4745(d).
2.23 EMERGENCY EXIT WINDOWS
: “ Emergency Exit Windows ” shall mean those
windows on the third floor of the Residence which are located at the front and rear of the Residence and that are intended as an emergency exit in case of fire. The Emergency Exit Windows must be accessible to the fire department at all times.
2.24 EVA
: “ EVA” shall mean the paved emergency vehicle access situated within the easement granted by the City to Declarant and recorded on **, 202**, as Document No. 202**, over certain City owned property that connects Chattleton Lane with the Private Drive between Lots 10 and 11. The EVA includes all Improvements situated within the EVA.
2.25 FIRE LADDER ACCESS AREA
: “Fire Ladder Access Area” shall mean that portion
of each Lot that is of sufficient size to permit the fire department to place a ladder on the surface of the ground and reach to the Emergency Exit Windows without hindrance.
2.26 FIRST MORTGAGE
: “ First Mortgage” shall mean a Mortgage which has priority under the recording statutes of the State of California over all other Mortgages encumbering a specific Lot.
2.27 FIRST MORTGAGEE
: “ First Mortgagee ” shall mean the Mortgagee of a First Mortgage. “First Mortgagee” shall also include an insurer or governmental guarantor of a First Mortgage including, without limitation, the Federal Housing Authority and the Department of Veterans Affairs.
2.28 IMPROVEMENTS
: “Improvements” shall mean everything constructed, installed or planted on real property within or abutting the Project, including without limitation, buildings, streets, fences, walls, paving, pipes, wires, grading, landscaping and other works of improvement as defined in California Civil Code Section 8050, excluding only those Improvements or portions thereof which are dedicated to the public or a public or quasi-public entity or utility company, and accepted for maintenance by the public, such entity or utility company.
2.29 INVITEE
: “ Invitee” shall mean any person whose presence within the Project is approved by or is at the request of the Association or a particular Owner, including, but not limited 6 09/28/23
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to, lessees, tenants, and the family, guests, employees, licensees or invitees of Owners, tenants or lessees.
2.30 LOT : “Lot” refers to a Separate Interest as defined in California Civil Code Section 4185 and shall mean Lots 2 through 10, inclusive, as shown on the Map. “Lot” shall also mean any Lot described as such in a Declaration of Annex ation. Lot includes all Improvements situated thereon or therein.
2.31 MAINTAIN : “Maintain” or “Maintained” (but not the word “maintenance”) shall mean taking all actions reasonably necessary to keep an Improvement in first-class condition and repair, which actions include but are not limited to regular inspections, painting, maintenance, refinishing, repairing, replacing and reconstructing the Improvement, and in the case of landscaping, irrigating and fertilizing the landscaping. The Owners and the Association shall have no responsibility to Maintain any Improvement Maintained by a third party or the public or a quasi-public entity or utility company even if the third party or the public or a quasi-public entity or utility company fails to perform all actions required by this Section.
2.32 MAINTENANCE EASEMENT
: “Maintenance Easement” shall mean those portions
of a Lot shown on the Map as a “2' Wide Reciprocal Access & Maintenance Easement” or “ME.” The width of the Maintenance Easement is measured from the property line on each abutting Lot.
2.33 MAINTENANCE MANUAL
: “ Maintenance Manual ” shall mean the Association
Maintenance Manual and the Owner Maintenance Manual, unless otherwise provided.
2.33.1 Association Maintenance Manual : “Association Maintenance Manual” shall mean the documents which establish proc edures, practices, specifications, scopes and intervals for the Association to Maintain the Improvements for which the Association is responsible.
The Association Maintenance Manual shall be given to the Association by Declarant. There may be more than one (1) Association Maintenance Manual at any given time, each of which applies to different Improvements.
2.33.2 Owner Maintenance Manual
: “Owner Maintenance Manual” shall mean
the documents which establish procedures, practices, specifications, scopes and intervals for an Owner to Maintain the Improvements for which the Owner is responsible. The Owner Maintenance Manual applicable to each Lot shall be provided by Declarant to the original purchaser of that Lot no later than the time of the conveyance of that Lot to the purchaser. Different Lots may be subject to different Owner Maintenance Manuals.
2.34 MAP
: “Map” shall mean the final map of Tract 9599 “Chattleton Place” filed for record on **, in Book ** of Maps at Pages ** through **, inclusive, in the Official Records of the County, including any subsequently recorded final maps, parcel maps or amended maps, and as may be amended by amending maps, certificates of correction, lot line adjustments and/or records of survey. “Map” shall also mean any recorded final map described in a Declaration of Annexation including any subsequently recorded final maps, parcel maps or amended maps, and as may be amended by amending maps, certificates of correct ion, lot line adjustments and/or records of survey.
2.35 MEMBER
: “Member” shall mean, with respect to each Lot, the Owner of that Lot. 7 09/28/23
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2.36 MORTGAGE : “Mortgage” shall mean any duly recorded mortgage or deed of trust encumbering a Lot.
2.37 MORTGAGEE : “Mortgagee” shall mean a Mortgagee under a Mortgage as well as a beneficiary under a deed of trust.
2.38 NOTICE AND HEARING : “ Notice and Hearing ” shall mean the procedure which gives an Owner notice of an alleged violation of the Project Documents and the opportunity for a hearing before the Board.
2.39 OPERATING RULES
: “Operating Rules” shall mean the rules adopted by the Board, including the Architectural Standards.
2.40 OWNER : “ Owner” shall mean the holder of record fee title to a Lot, including Declarant as to each Lot owned by Declarant. If more than one person owns a single Lot, “Owner” shall mean all owners of that Lot. “Owner” shall also mean a contract purchaser (vendee) under an installment land contract but shall exclude the contract vendor and any person having an interest in a Lot merely as security for performance of an obligation.
2.41 PARK
: “Park” shall mean the public Park and tot lot Improvements situated on Parcel B, as shown on the Map, which is a public park dedicated to the City.
2.42 PARK PEDESTRIAN ACCESS : “Park Pedestrian Access” shall mean those portions of Lots 12, 13 and 14, shown on the Map as “5' PPAE ” which provides pedestrian access to the adjacent public Park/tot lot situated on Parcel B, as shown on the Map.
2.43 PEDESTRIAN ACCESS EASEMENT
: “Pedestrian Access Easement ” shall mean
those portions of a Lot, shown on the Map as “5' PPAE, ” which provides pedestrian access over and through the Lot to any other Lot or Common Area.
2.44 PHASE
: “Phase” shall mean any Lots and/or Common Area which are simultaneously made subject to the provisions of this Declaration either by recording this Declaration or by recording a Declaration of Annexation. More than one Phase may be established in any Declaration of Annexation.
2.45 PRIVATE DRIVE
: “Private Drive” shall mean Parcel A as shown on the Map. Parcel A is also shown as a “20' Wide Driveway” and includes main drive aisle and the two court areas perpendicular to the main drive aisle.
2.46 PROJECT : “Project” shall mean the Subject Property and any property described in a Declaration of Annexation.
2.47 PROJECT DOCUMENTS : “Project Documents” shall mean the Articles, Bylaws, this Declaration and the Operating Rules.
2.48 PROJECT EXTERIOR LIGHT : “Project Exterior Light” shall mean those exterior light fixtures, fitted with LED bulbs, which were installed by Declarant and are intended to provide safety and security lighting for the Project. The Project Exterior Lights may be mounted on the upper exterior of a garage or on some other portion of the Residence, are connected to the Lot Owner’s 8 09/28/23
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electric service, are controlled by a photocell timer system, and illuminate some portion of the Private Street or Pedestrian Access Easement.
2.49 PROJECT RETAINING WALL : “Project Retaining Wall” shall mean those retaining walls situated along the perimeter of the Project on perimeter Lots and on Common Area which were installed by Declarant. A project Retaining Wall may have a fence installed on the top but both the wall and fence shall be considered a single unit (retaining wall) for purposes of determining responsibility for maintenance.
2.50 PUBLIC PURCHASER
: “ Public Purchaser ” shall mean an Owner who is not a Declarant.
2.51 PUBLIC REPORT : “Public Report” shall mean a Final Subdivision Public Report issued by the Department of Real Estate of the State of California for one or more Phases of the Project.
2.52 REGULAR ASSESSMENT
: “Regular Assessment” shall mean the Assessments
levied against all Owners as described in Section 6.2 (Regular Assessments). Regular Assessments are “regular assessments” as that term is used in the CID Act.
2.53 REIMBURSEMENT ASSESSMENT
: “Reimbursement Assessment” shall mean an
Assessment levied against one or more Owners as described in Section 6.4 (Reimbursement Assessments). Reimbursement Assessments are neither “regular assessments” nor “special assessments” as those terms are used in the CID Act.
2.54 RESIDENCE
: “Residence” shall mean a dwelling situated on a Lot, including any garage also situated on a Lot.
2.55 RESTORE : “Restore” shall mean repairing, rebuilding or reconstructing a damaged Improvement to substantially the same condition and appearance in which it existed prior to being damaged.
2.56 SHARED STORM DRAIN EASEMENT : “Shared Storm Drain Easement” shall mean that area of the rear of Lots 2 through 10, inclusive, shown on the Map as “5' PSDE”. The Shared Storm Drain Easement includes the right to have the storm drain piping continue through, under and across Common Area Parcel A and discharge into Common Area Parcel D. “Shared Storm Drain Easement” also includes those areas on Lots 15 through 20, inclusive, shown on the Map as a “PSDE” of various sizes and the rights to discharge into Common Area Parcels C and E.
2.57 SHARED STORM DRAIN IMPROVEMENTS
: “Shared Storm Drain Improvements”
shall mean those shared storm drain Improvements situated within a Shared Storm Drain Easement.
2.58 SPECIAL ASSESSMENT
: “Special Assessment” shall mean an Assessment levied against one or more Owners as described in Section 6.3 (Special Assessments). Special Assessments are “special assessments” as that term is used in the CID Act.
2.59 SOLAR COLLECTOR
: “Solar Collector” shall mean a solar collector as defined in California Public Resources Code Section 25981.
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ARTICLE III
OWNERSHIP AND EASEMENTS
2.60 SOLAR RIGHTS ACT : “Solar Rights Act” shall mean California Civil Code Sections 714 et seq., and any successor statutes.
2.61 SOLAR SHADE CONTROL ACT : “Solar Shade Control Act” shall mean California Public Resources Code Sections 25980 et seq., and any successor statutes.
2.62 STORMWATER AGREEMENT : “Stormwater Agreement” shall mean the Covenant Running with the Land, Stormwater Management Facilities Operation and Maintenance Agreement, and Right of Entry entered into by and between the Declarant and the City and filed for record on _________________, 202___, as Document No. ________________, in the Official Records of the County and attached hereto as Exhibit “A.”
2.63 STORMWATER O & M PLAN : “Stormwater O & M Plan” shall mean the Stormwater Facilities Operation and Maintenance Plan entered into by and between the Declarant and the City and filed for record on _________________, 202___, as Document No. ________________, in the Official Records of the County and attached hereto as Exhibit “B.”
2.64 SUBJECT PROPERTY : “Subject Property” shall mean the real property described in Section 1.1 (Property Owned By Declarant).
2.65 VISIBLE : “Visible” shall mean the item described can be seen by a six (6) foot tall person standing on the described area, or if no area is described, on any portion of the street which provides access to the Residence.
2.66 YARD
: “Yard” shall mean portions of a Lot situated alongside of the Residence or on the opposite side of the Lot from a driveway, whether enclosed or unenclosed, and includes any Yard Easement which is appurtenant to the Lot, but excludes any portion of that Lot which is subject to a Yard Easement for the benefit of the abutting Lot. Yard includes all Improvements situated thereon or therein.
2.67 YARD EASEMENT
: “Yard Easement” shall mean those portions of a Lot which are shown on the Map as “ YE” or described as such in a grant deed to an individual Lot. The approximate dimensions of each Yard Easement are as shown on the Map or in the grant deed. “Yard Easement” shall also mean any property described as a Yard Easement in a Declaration of Annexation. If a Yard Easement is described or depicted in more than one location, the Yard Easement described or depicted in the most recently recorded document shall be the Yard Easement for all purposes of this Declaration.
3.1 NON-SEVERABILITY
: The interest of each Owner in the use and benefit of the Common Area shall be appurtenant to the Lot owned by the Owner. Any conveyance of any Lot shall automatically transfer the right to use the Common Area without the necessity of express reference in the instrument of conveyance. The ownership interests in the Common Area and Lots described in this Article are subject to the easements described, granted and reserved in this Declaration. Each of the easements described, granted or reserved herein shall be established upon the recordation of this Declaration and shall be enforceable as equitable servitudes and 10 09/28/23
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covenants running with the land for the use and benefit of the Owners and their Lots superior to all other encumbrances applied against or in favor of any portion of the Project.
3.2 OWNERSHIP OF LOTS : Title to each Lot in the Project shall be conveyed in fee to an Owner.
3.3 OWNERSHIP OF COMMON AREA : Title to or a legal ownership interest in the Common Area in each Phase shall be conveyed to the Association prior to or concurrently with the conveyance of the first Lot in that particular Phase to an Owner. The Association shall be deemed to have accepted the Common Area conveyed to it when (i) a grant deed conveying title to the Common Area has been recorded in the Official Records of the County and (ii) Regular Assessments for the Phase in which the Common Area is located have commenced. To the extent this Declaration requires the Association to Maintain Improvements situated within Common Area conveyed to the Association or on real property adjacent to either Common Area owned by the Association or other portions of the Project, such obligations shall commence incrementally in accordance with the budgets reviewed by the California Department of Real Estate.
3.4 EASEMENTS
: The easements and rights specified in this Article are hereby created and shall exist whether or not they are also set forth in individual grant deeds to Lots. By reference to this Declaration, each grant deed to a Lot shall be deemed to be conveyed with the benefit of and subject to all applicable easements set forth in this Section.
3.4.1 Adjoining Property
: Declarant shall have, and hereby expressly reserves, a right and easement over and across the Common Area for the purposes of reasonable ingress to and egress from, over and across the Project, including private roads and pathways, to the Annexable Property until all of the Annexable Property is annexed to the Project.
3.4.2 Annexation of Annexable Property
: Upon the recordation of a Declaration
of Annexation, the Lots and the Owners of Lots in the annexed Phase shall have all of the rights and easements specified in this Article and the Lots and the Owners of Lots in the Project prior to annexation shall have all of the easements specified in this Article as though the annexed Phase were initially part of the Project.
3.4.3 Association
: The Association and its duly authorized agents and
representatives shall have a non-exclusive right and easement as is necessary or appropriate to perform the duties and obligations of the Association set forth in the Project Documents, including the right to enter upon Lots to Maintain any Im provement which the Association is required to Maintain, subject to the limitations contained in this Declaration. Except for regularly scheduled maintenance activities and emergency situations, entry within a Lot shall be made with as little inconvenience to an Owner as practicable and only after reasonable advance written notice of not less than forty-eight (48) hours.
3.4.4 Association Maintenance Areas
: The Association shall have a non-
exclusive easement over the Association Maintenance Areas to Maintain and irrigate the Association Maintenance Areas.
3.4.5 Bio-Retention Basin Irrigation System
: The Association shall have a non-
exclusive easement over any Lot that provides irrigation water to the Bio-Retention Basin Irrigation System to Maintain and irrigate the Bio-Retention Basins. 11 09/28/23
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3.4.6 Common Area : Every Owner shall have a non-exclusive right and easement for the ingress, egress, use and enjoyment of the Common Area, subject to the Operating Rules, which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions:
(a) The right of the Board, after Notice and Hearing, to suspend an Owner’s right to use any recreational facilities;
(b) The right of the Association to grant, convey and dedicate fee title to or easements over all or any portion of the Common Area; and (c) Any easement which affects the Common Area or which is set forth in the deed which conveys the Common Area to the Association.
3.4.7 Encroachment
: Non-exclusive rights and easements are reserved and
granted (i) for the benefit of each Lot, as dominant tenement, over, under and across each other Lot and the Common Area, as servient tenements, and (ii) for the benefit of the Common Area, as dominant tenement, over, under and across each Lot, as servient tenement. Such easements shall be for the purposes of encroachment, support, occupancy and use of such portions of Lots and/or Common Area as shall be encroached upon, used and occupied by the dominant tenement as a result of any original construction design, accretion, erosion, deterioration, decay, errors in original construction, movement, settlement, shifting or subsidence of any building or structure or any portion thereof. If any portion of the Project is partially or totally destroyed, the encroachment easement shall exist for any replacement structure which is rebuilt pursuant to the original construction design. The easement for the encroaching Improvement shall exist for as long as the encroachment exists, provided that no easement for encroachment shall be created due to the willful misconduct of the Association or any Owner. Any easement for encroachment may, but need not, be cured by Alteration of the Improvement.
3.4.8 EVA
: Each Owner, by virtue of being a member of the Association, shall have a non-exclusive easement over the EVA purposes of ingress only from Chattleton Lane to the Project by pedestrians and vehicles subject to the Operating Rules. The EVA may not be used for egress from the Project to Chattleton Lane.
3.4.9 Governmental Entities
: All governmental and quasi-governmental entities,
agencies and utilities and their agents shall have a non-exclusive easement over the Common Area for the purposes of performing their duties within the Project.
3.4.10 Mailboxes : Each Owner whose mailbox is not located on that Owner’s Lot shall have a non-exclusive easement to use and Main tain the mailbox over those portions of the Project on which the mailbox is located.
3.4.11 Maintenance Easement : The Owner of each Lot within the Map shall have an easement over any Maintenance Easement which abuts the Owner’s Lot for the purposes of (a) construction, maintenance, repair and reconstruction of eave overhangs, gutters, downspouts and roof drainage, and (b) performing such work during daylight hours as may be necessary or advisable in connection with Maintaining the garage and Residence constructed on the Owner’s Lot. The Lot burdened by the Maintenance Easement is referred to in this Section as the “Servient Tenement.” The Lot benefitted by the Maintenance Easement is referred to in this Section as the “Dominant Tenement.” The Owner of the Dominant Tenement shall have no liability for damage 12 09/28/23
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to or removal of any Improvement, including landscaping, which exists on the Private Maintenance Easement in violation of this Section. Written notice of entry to perform work shall be given to the Owner of the Servient Tenement by the Owner of the Dominant Tenement at least twenty-four (24) hours before entering on the Private Maintenance Easement, except in an emergency when no notice is required. The Maintenance Easement may be included within or may include other easements within its boundaries. The Maintenance is subject to the restrictions placed on it in Section 4.**12 (Maintenance Easement) of this Declaration.
3.4.12 Map
: The Common Area and Lots are subject to all easements and rights of way shown on the Map.
3.4.13 Park Pedestrian Access : Every Owner and their Invitees shall have a non- exclusive right and easement over and across the Park Pedestrian Access for ingress and egress to the Park located on Parcel B, as shown on the Map. The Park Pedestrian Access may be used for the purposes specified and is subject to the restrictions placed on it in Section 4.**16 (Park Pedestrian Access) of this Declaration. The Park Pedestrian Access shall be Maintained as provided in Article V (Improvements) of this Declaration.
3.4.14 Pedestrian Access Easement
: Each Owner of a Lot which abuts a
Pedestrian Access Easement shall have a non-exclusive right and easement over and across that Pedestrian Access Easement on the contiguous Lot for purposes of ingress and egress to its Lot.
The Owner of Lot 20 shall have a non-exclusive right and easement over and across that Pedestrian Access Easement on Lot 19. A Pedestrian Access Easement may be used for the purposes specified and is subject to the restrictions placed on it in Section 4.**17 (Pedestrian Access Easement) of this Declaration. A Pedestrian Access Easement shall be Maintained as provided in Article V (Improvements) of this Declaration.
3.4.15 Right of Entry to Inspect
: Declarant hereby reserves for itself, and for its
agents, employees, contractors, and/or subcontractors (collectively, “Declarant Parties”), the right to enter in and upon the Common Area for the purposes of performing an annual inspection of the Common Area. The purpose of any inspection shall be to ascertain the condition of Common Area Improvements. Declarant Parties shall give the Association reasonable advance written notice of the date and time of any inspection. After completing any inspection, Declarant Parties may give the Association a written report which describes the results of the inspection and makes recommendations for action that Declarant Parties believe is appropriate for the Association to take to Maintain Improvements for which the Association is responsible. This right of entry shall exist until the date which is eleven (11) years following the date of completion of the Common Area in the last Phase of the Project.
3.4.16 Right of Entry to Perform Work
: Declarant hereby reserves for itself, and
for its agents, employees, contractors, and/or subcontractors (collectively, “ Declarant Parties”), the right to enter in and upon those portions of (a) the Common Area, (b) each Lot and (c) each Residence that are necessary or appropriate (as determined in Declarant Parties’ reasonable discretion) for the purposes of performing repairs or doing other work that (i) has been agreed to by the Association and Declarant Parties or by an Owner and Declarant Parties or (ii) Declarant Parties elects to perform pursuant to California Civil Code Section 918. Declarant Parties shall give all affected parties at least seventy-two (72) hours advance notice of the dates and times work will be performed (except in an emergency for which no notice is required). Notice shall be written or verbal.
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3.4.17 Right to Photograph : Declarant hereby reserves a non-exclusive easement and right in gross to display, use and distribute for any and all purposes photographs, video recordings and similar reproductions of all Residences and Improvements constructed anywhere in the Project; provided, however, Declarant shall have no right to photograph the interior of any Residence after that Residence has been conveyed to an Owner without the consent of that Owner.
3.4.18 Shared Storm Drain Easement
: Each Lot listed in the table, below, as a
Dominant Tenement shall have an non-exclusive right and easement appurtenant to it over, under, through and across the Shared Storm Drain Easement on the Lots and Common Area, listed in the table, below, as the Servient Tenement.
The Shared Storm Drain Easement may be used to Maintain the Shared Storm Drain Improvements, for the flow of storm drain water through the Shared Storm Drain Improvements and for the other purposes specified in this Declaration and shall be Maintained as provided in Article V (Improvements) of this Declaration.
Shared Storm Drain Easements
DOMINANT
TENEMENT
SERVIENT
TENEMENT
DOMINANT
TENEMENT
SERVIENT
TENEMENT
10 9, 8, 7, 6, 5, 4, 3,
2, A & B
9 8, 7, 6, 5, 4, 3,
2 A & B
8 7, 6, 5, 4, 3, 2
A & B
7 6, 5, 4, 3, 2,
A & B
6 5, 4, 3, 2, A & B 5 4, 3, 2, A & B
4 3, 2, A & B 3 2, A & B
11 12, 14 & E 13 14 & E
15 16, 18 & C 17 18 & C
19 20 & C
3.4.19 Storm Drains
: The Association and each Owner shall have a non-exclusive right and easement appurtenant to the Common Area and to all Lots over, under, across and through the Project, except Residences, for surface and subsurface storm drains and the flow of water in accordance with natural drainage patterns and the drainage patterns and Improvements installed or constructed by Declarant. Additionally, this Declaration and each Lot and the Common Area shall be subject to all easements granted by Declarant to install and Maintain drainage Improvements necessary or appropriate for the development of the Project.
3.4.20 Support
: The Association and each Owner shall have a non-exclusive right and easement appurtenant to the Common Area and to all Lots through each Lot and the Common Area to support and Maintain the Common Area and all Lots. 14 09/28/23
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ARTICLE IV
USE RESTRICTIONS
3.4.21 Utilities : Each Owner shall have a non-exclusive right and easement over, under, across and through the Project, except Residences, for utility lines, pipes, wires and conduits installed by Declarant. Additionally, this Declaration and each Lot and the Common Area shall be subject to all easements granted by Declarant to install and Maintain utilities necessary or appropriate for the development of the Project.
3.4.22 Yard Easement
: Each Lot 2 through 10, inclusive, 12 through 14, inclusive and 15 through 18, inclusive, listed in the table, below, as a Dominant Tenement and each Lot 2 through 10, inclusive, 12 through 14, inclusive, and 15 through 18, inclusive, listed in the table, below, as a Servient Tenement shall each have a reciprocal, non-exclusive right and easement appurtenant to it over, under, through and across the Yard Easement on the adjoining Lot listed in the table, below. The location and size of the respective Yard Easements are shown on the Map and/or on the Plot Plan attached to the grant deed for each Lot.
Yard Easements
DOMINANT
TENEMENT
SERVIENT
TENEMENT
DOMINANT
TENEMENT
SERVIENT
TENEMENT
10/9 9/10 9/8 8/9
8/7 7/8 7/6 6/7
6/5 5/6 ****** *****
5/4 4/5 4/3 3/4
3/2 2/3 12 13 and 14
13 and 14 12 15/17 17/15
16/18 18/16 ***** *****
Each Yard Easement is part of a Yard. Each Yard Easement may be used for the purposes specified and is subject to the restrictions placed on it in Section 4.**28 (Yard Easements) of this Declaration. Yard Easements shall be Maintained as provided in Article V (Improvements) of this Declaration.
4.1 ALTERATIONS
: Except as otherwise specifically provided in this Declaration, no Alteration may be made to any Improvement until plans have been submitted and approved pursuant to Article XI (Architectural and Landscaping Control).
4.2 ANIMALS :
4.2.1 Generally : No animals may be kept for commercial purposes. No dog shall be allowed in the Common Area unless it is under the control of a responsible person by leash or other means. Each Owner or Invitee shall clean after its pet so that the Common Area is in the 15 09/28/23
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same condition it was in immediately preceding its use by any pet permitted on the Common Area by the Owner or Invitee.
4.2.2 Number and Type : An Owner may keep not more than a total of two (2) dogs, cats or other customarily uncaged household pets within the Owner’s Lot. Each Owner may also keep a reasonable number of small caged animals, birds or fish. Unless the Operating Rules increase the number or type of animals which may be kept, no other animals or pets are permitted in the Project.
4.2.3 Nuisance
: The Board shall have the right to prohibit the keeping of any pet which, after Notice and Hearing, is found to be a nuisance to other Owners.
4.2.4 Service Animals : Notwithstanding the limitations on numbers and types of animals in Subsection 4.2.2 (Number and Type), the Board shall, without having to amend Subsection 4.2.2, make reasonable accommodations allowing a person who resides in a Residence and has a legally recognized disability to keep service animals in their Residence on receipt of reasonable evidence: (a) that the person has a lega lly recognized disability; (b) that the service animal is properly trained to provide a necessary service for the disabled person, and (c) showing that the animal meets the criteria for service animals set forth in state and federal law and regulation. Qualified service animals shall not be counted as pet animals for purposes of the numeric limits in Subsection 4.2.2 (Number and Ty pe), nor shall any limitations on the types of animals set forth in that Subsection apply to a qualified service animal. Qualified service animals permitted under this Subsection 4.2.4 remain subject to Subsections 4.2.1 (Generally) and 4.2.3 (Nuisance).
4.3 ANTENNAS AND SATELLITE DISHES
: No outside television antenna, microwave
or satellite dish, aerial, or other such device (collectively “ Video Antennas”) with a diameter or diagonal measurement in excess of one (1) meter shall be erected, constructed or placed on any Common Area or Lot. Video Antennas with a diameter or diagonal measurement of one (1) meter or less may be installed only if they conform to the Architectural Standards and, if then required by the Architectural Standards, any necessary approval is obtained in accordance with the provisions of Article XI (Architectural and Landscaping Control). Reasonable restrictions which do not significantly increase the cost of the Video Antenna system or significantly decrease its efficiency or performance may be imposed.
4.4 ASSOCIATION MAINTENANCE AREAS
:
4.4.1 Alterations : No Alteration may be made by an Owner, nor may any personal property be placed, within Association Maintenance Area without first obtaining approval of the Board. Unless otherwise determined by the Board, any Owner who adds landscaping in any Association Maintenance Area shall Maintain the additional landscaping. The Association shall not be responsible for any damage caused to any such added landscaping as long as the damage occurs in the ordinary course of the Association’s regular landscape maintenance program.
4.4.2 Irrigation
: If the water supply for an irrigation system serving Association Maintenance Area is connected by Declarant to a Residence water meter at the time of conveyance of that Residence to the initial Owner to acquire the Residence from Declarant, the Owner of the Residence may not disconnect or otherwise restrict the flow of water from the Owner’s meter to the irrigation system. All such water used by the Association in irrigating the Association Maintenance Area shall be paid for by the Owner of the Residence. No Owner shall have the right to contest the 16 09/28/23
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amount of water used by the Association as long as the Association treats each Lot substantially the same as other similarly situated Lots.
4.5 BIO-RETENTION BASIN : The irrigation system for Parcel C is connected to Lot 20, Parcel D is connected to Lot 1 and Parcel E is connected to Lot 14. If the water supply for an irrigation system serving a Bio-Retention Basin is connected by Declarant to a Residence water meter at the time of conveyance of that Residenc e to the initial Owner to acquire the Residence from Declarant, the Owner of the Residence may not disconnect or otherwise restrict the flow of water from the Owner’s meter to the irrigation system. All such water used by the Association in irrigating the Bio-Retention Basin shall be paid for by the Owner of the Residence. No Owner shall have the right to contest the amount of water used by the Association as long as the Association treats each Lot substantially the same as other similarly situated Lots.
4.6 DRAINAGE
: No Owner shall make any Alteration to the drainage patterns and facilities in the Project (including but not limited to removal or modification of any swale established by Declarant in a front, side or rear Yard) until plans have been submitted and approved pursuant to Article XI (Architectural and Landscaping Control) and any public authority with jurisdiction over the Alteration. This Declaration provides notice to each Owner to devote great care and attention to grading and to establishing and maintaining positive drainage away from the entire foundation line of the Owner’s Residence. Positive drainage is achieved by shaping Lot grades, establishing drainage “swales” or installi ng underground area drains. The swales and drains provide a receptacle and conduit to drain water away from the foundation, and the rear, side and front of the Residence to off-site drainage disposal. Swales also prevent drainage water from moving across a Lot to another Lot, Common Area or other property except as provided by natural topography or design. This Declaration also provides notice to each Owner that if existing drainage swales established on the Lot and around the Residence are interrupted, blocked, filled, or otherwise altered, serious damage can result. Drainage must not be allowed to pond in a Yard (except in swales specifically designed for detention) or run against or under a Residence, foundation, garage floor, driveway or other Improvement. Serious damage can result even during a short period of time.
4.7 DRONES
: The Operating Rules may regulate or prohibit, to the extent permitted by law, the operation of a powered unmanned aerial vehicle (“Drone”). No Drone may be operated within the Project by any Owner or Invitee in a manner which invades the privacy of Owners or residents.
4.8 EVA : No Owner or Invitee shall use the EVA for vehicular egress from the Project.
4.9 EXTERIOR LIGHTING : No Owner shall remove, damage or disable any Project Exterior Light, photocell, or fixture, regardless of where located. All exterior Lot lighting must utilize LED technology for illumination and shall be unobtrusive, down-lit, with recessed lighting elements, and harmonious with the immediate surroundings. All exterior Lot lighting shall be constructed, located, and/or installed in such a manner that only the intended area is illuminated.
4.10 FIRE LADDER ACCESS AREA
: No Owner shall install any Improvement, plant any
landscape or place any item of personal property in the Fire Ladder Access Area that would hinder, in any way, the placement of fire ladders connecting to the Emergency Exit Windows of the Residence.
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4.11 INVITEES : Each Owner shall be responsible for compliance with the provisions of the Project Documents by that Owner’s Invitees. An Owner shall promptly pay any Reimbursement Assessment levied and/or any fine or penalty imposed against an Owner for violations committed by that Owner’s Invitees.
4.12 MAINTENANCE EASEMENT
: No Owner shall install any Improvement, plant any
landscape or place any item of personal property within the Maintenance Easement that would hinder, in any way, the free access to this easement area by the Owners of the adjacent Lot for purposes of Maintaining that Lot or the Residence on that adjacent Lot. Improvements built or placed within a Private Maintenance Easement are subject to the following restrictions:
(a) No Improvement other than overhanging eaves of a Residence, down spouts, storm drainage Improvements and landscaping may be built or placed within a Private Maintenance Easement. Any type of landscaping that has an invasive root system is prohibited. (b) Nothing may be attached to, thrown against, or placed against the Residence on the Dominant Tenement by the Owner or residents of the Servient Tenement, including dirt or fill.
(c) No combustible or flammable materials may be placed or stored on the Private Maintenance Easement.
(d) The ground surface and underground drainage system within the Private Maintenance Easement may not be Altered in any manner which (i) may impede the flow of water within the underground drainage system, (ii) direct water towards the Residence on the Dominant Tenement or (iii) trap water against the Residence on the Dominant Tenement. (e) All drainage and irrigation installed by the Owner of the Servient Tenement must be done so that all water is directed away from the foundation and exterior walls of the Residence on the Dominant Tenement.
(f) The Owner of the Servient Tenement shall Maintain all landscaping and other Improvements installed within the Private Maintenance Easement. (g) Anything placed upon, over or under the Private Maintenance Easement that interferes with the rights of the Owner of the Dominant Tenement to enter upon the Private Maintenance Easement to Maintain the Residence on the Dominant Tenement must be removed by the Owner of the Servient Tenement during the period of time when the Owner of the Dominant Tenement is performing exterior work on the portion of the Owner’s Residence accessed through the Private Maintenance Easement.
(f) Enclosures for pets may not be placed within the Private Maintenance Easement.
4.13 MINERAL EXPLORATION
: No Lot shall be used to explore for or to remove any oil, hydrocarbons or minerals of any kind without the approval of the Board and only if permitted by local ordinances.
4.14 OPERATING RULES
: Owners and their Invitees shall comply with all provisions of this Declaration, the Bylaws and the Operating Rules.
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4.15 PARKING AND VEHICLES : Vehicles shall not be parked anywhere in the Project except in compliance with the provisions of this Section. No vehicle may be parked anywhere on a Lot other than on established parking areas as described in this Section or as expressly established in accordance with an approval by the Architectural Committee in accordance with Article XI (Architectural and Landscaping Control).
4.15.1 Driveways
: Parking is prohibited on the driveway on a Lot.
4.15.2 EVA : Parking is prohibited on the EVA or any portion of the Private Drive that would block access to and through the EVA by emergency vehicles.
4.15.3 Garages : Vehicles of any type may be parked in a garage. Garage doors shall remain closed, except when the garage is in use. Garages shall be kept sufficiently clear so as to permit parking of the number of vehicles for which the garage was designed.
4.15.4 Private Drive
: Parking is prohibited on the Private Drive. The curbs on the Private Drive are painted red and labeled as no parking.
4.15.5 Removal : As long as applicable ordinances and laws are observed, including the requirements of California Vehicle Code Section 22658, if applicable, any vehicle which is parked in violation of the provisions of this Declaration may be removed and stored at the sole expense of the Owner of the vehicle.
4.15.6 Vehicle Restrictions
: No boat, trailer, camper, commercial vehicle, mobile home, recreational vehicle or any inoperable vehi cle shall be parked or stored anywhere in the Project where Visible from adjacent Lots or Common Area. Garages or parking spaces may not be sufficiently large to accommodate larger vehicles; no vehicle may be parked in a garage or parking space unless it fits and no vehicle may be parked in a garage in a manner which prevents closing of the garage door. For purposes of this Subsection, “commercial vehicle” includes any vehicle defined as a “commercial vehicle” in California Vehicle Code Section 260. The Operating Rules may expand or further clarify the definition of a “commercial vehicle.”
4.15.7 Vehicle Washing/Maintenance
: Neither vehicle maintenance, repair nor
restoration nor washing of vehicle exteriors is permitted anywhere within the Project.
4.16 PARK PEDESTRIAN ACCESS : No Owner of a Lot in which any part of a Park Pedestrian Access is located shall install any Improvement, plant any landscape or place any item of personal property within the Park Pedestrian Access that would hinder, in any way, the free access through this easement area by other Owners for purposes of pedestrian access to the Public Park, adjacent to the Project.
4.17 PEDESTRIAN ACCESS EASEMENT
: No Owner of a Lot in which any part of a
Pedestrian Access Easement is located shall install any Improvement, plant any landscape or place any item of personal property within the Pedes trian Access Easement that would hinder, in any way, the free access through this easement area by other Owners for purposes of pedestrian access.
4.18 REFUSE
: All garbage, trash and accumulated waste material shall be placed in appropriate covered containers. Containers for recyclable materials need not be covered. Any 19 09/28/23
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containers provided by the Association may be stored in locations designated by the Board.
Containers provided by Owners may be placed where Visible, in the location directed by the local garbage collection company, only on the night before and the day that pick-up is to occur.
4.19 RENTAL OF LOTS : An Owner may not rent or lease a Lot for a period less than thirty (30) days or in violation of any agreement to which the Owner is a party. Any lease or rental agreement shall specify that the tenant is subject to all provisions of the Project Documents and a failure to comply with any provision of the Project Documents shall constitute a default under the lease or rental agreement. Before renting or leasing a Lot, the Owner shall provide a copy of the Project Documents to each tenant and notify the Board of the lease or rental. With the exception of ADU tenants, all rights to the use and enjoyment of Common Area shall be exercised by the tenant rather than by the Owner of the leased or rented Lot (unless the Owner is an occupant in which case the Owner shall also have a right to use and enjoyment); however, the Owner shall not be relieved of the obligations and duties imposed by this Declaration.
4.20 SIGNS
: All signs displayed in the Project shall be attractive and compatible with the design of the Project and shall comply with all applicable state and federal laws and local ordinances. The only signs of any kind which may be displayed to the public view on or from any Lot or the Common Area shall be as follows:
4.20.1 Declarant
: Signs may be displayed by Declarant on Common Area or unsold Lots, as Declarant deems appropriate, advertising Lots owned by Declarant for sale or rent;
4.20.2 Legal Proceedings : Signs required by legal proceedings may be displayed;
4.20.3 Non-Commercial : Non-commercial signs, posters, flags, or banners may be displayed in accordance with the provisions of California Civil Code Section 4710. Any such sign or poster may not exceed nine (9) square feet in size and any such flag or banner may not exceed fifteen (15) square feet in size;
4.20.4 Project Identification
: Appropriate signs may be displayed by the
Association to identify the Project;
4.20.5 Sale or Rent : One (1) sign of reasonable dimensions may be placed on a Lot advertising the Lot for sale or rent; and
4.20.6 Signs Approved By Board : Other signs, posters and notices approved by the Board or specified in the Operating Rules or in this Declaration may be posted in locations designated by the Board.
4.21 SOLAR COLLECTORS
: Except for those Solar Collectors originally installed by Declarant, no Solar Collector may be installed on a Lot unless and until (i) the Owner provides the Association and each of the Owner’s neighbors (who may be affected by the installation of the Solar Collector) with the notice set forth in California Public Resources Code Section 25982.1, and (ii) the Solar Collector has been approved in accordance with the provisions of Article XI (Architectural and Landscaping Control). A Solar Collector that is proposed to be installed on a Lot must meet all applicable requirements of California Civil Code Section 714(c) and California Public Resources Code Section 25981(d).
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4.22 SOLAR SHADE RESTRICTIONS : After the installation of a Solar Collector on a Lot, neither an Owner of an adjacent Lot nor the Association (in the case of adjacent Common Area) shall allow a tree or shrub to be placed or, if placed, to grow so as to cast a shadow in violation of the standards set forth in California Public Resources Code Section 25982. The Owner, not the Architectural Committee, shall bear the burden of calculating compliance of any such tree or shrub with the provisions of California Public Resources Code Section 25982. The restrictions of this Section 4.22 do not apply to a tree or shrub planted prior to the installation of a Solar Collector or to the replacement of a tree or shrub that had been growing prior to the installation of a Solar Collector and which, subsequent to the installation of the Solar Collector, dies or is removed for reasons of public health or safety. Approval by the Architectural Committee of the installation of particular trees or shrubs on a Lot adjacent to a Solar Collector or the installation of particular trees or shrubs by the Association on Common Area adjacent to a Solar Collector shall not be deemed to waive or alter the provisions of this Section 4.22, and the Architectural Committee shall not be liable to the Owner of the Solar Collector for any such approval.
4.23 SPORTS EQUIPMENT
: No basketball standards, sports apparatus or similar equipment (“Sports Equipment”) shall be attached to the exterior of any Residence or permanently installed on any Lot unless approved in accordance wi th the provision of Article XI (Architectural and Landscaping Control). Sports Equipment ma y be temporarily placed (but not permanently installed) on portions of a Lot if the Sports Equipment is not Visible from adjacent Lots or the Common Area. In addition, if permitted by the Operating Rules, an Owner may temporarily place (but not install) Sports Equipment (a) on a Lot where Visible from adjacent Lots or the Common Area, or (b) on the **Private Drive or Common Area adjacent to the Owner’s Lot; otherwise, Sports Equipment is prohibited in these areas. The Operating Rules may define what time intervals constitute “temporary.”
4.24 TAXES
: Each Owner shall be obligated to pay any taxes or assessments assessed by the County Assessor against that Owner’s Lot and personal property. Until such time as real property taxes have been segregated by the County Assessor, any unsegregated taxes shall be allocated to and paid by the respective Owners. The proportionate share of the taxes for a particular Lot shall be determined by dividing the initial Lot sales price or, in the case of unsold Lots, the price the Lot is then being offered for sale by Declarant (“ Offered Price”), by the total initial sales prices and Offered Prices of all Lots for which the unsegregated taxes apply. If an Owner fails to pay that Owner’s proportionate share in accordance with the preceding sentence, the Association shall collect such share, including that Owner’s interest and penalties, from the delinquent Owner.
4.25 USE AND OCCUPANCY OF RESIDENCES
: Except as expressly permitted in this
Section, no business of any kind shall be established, operated, permitted or constructed in any portion of the Project, except for the business of Declarant in completing the development and its sale, leasing or other disposition of the Lots in the Project. Each Residence may be used for (i) residential purposes, (ii) uses within Residences which cannot be prohibited under federal or state law and (iii) uses permitted by local ordinance (provided that home occupations must be conducted in a manner that does not materially and adversely impact the ability of other Owners to use and enjoy the Project). By acceptance of title to a Lot, the Owner of a Residence used for a purpose which cannot be prohibited (as described in clause (ii) of the preceding sentence) agrees to and shall defend, indemnify and hold the Association harmless from any claim, demand, loss, liability or cause of action arising out of such use within that Owner’s Residence. No Owner may permit or cause anything to be done in or kept on or in a Lot which might obstruct or interfere with the rights of other Owners, or which would be noxious, harmful or unreasonably offensive to other 21 09/28/23
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ARTICLE V
IMPROVEMENTS
Owners. Each Owner shall comply with all of the requirements of all federal, state and local governmental authorities, and all laws, ordinances, rules and regulations applicable to that Owner’s Lot and all uses of that Owner’s Lot.
4.26 USE OF COMMON AREA
: All use of Common Area is subject to the Operating Rules.
All persons residing within the Project may enjoy the use of all facilities in the Common Area as long as they abide by the terms of the Project Documents. There shall be no obstruction of any part of the Common Area. Nothing shall be stored or kept in the Common Area without the prior consent of the Board. Nothing shall be done in or kept in the Common Area which will increase the rate of insurance on the Common Area without the prior consent of the Board. No Owner shall permit anything to be physically done in or kept in the Common Area or any other part of the Project which might result in the cancellation of insurance on any part of the Common Area, which would interfere with rights of other Owners, or which would be a nuisance, noxious, harmful or unreasonably offensive to other Owners. No Owner or Invitee shall perform any act which results in damage to the Common Area. The provisions of this Declaration concerning using, Maintaining and managing the Common Ar ea are subject to any rights or limitations established by any easements or other encumbrances which encumber the Common Area.
4.27 WINDOW COVERINGS
: All drapes, window shades or other window coverings
installed in the windows of a Residence which are Visible from the exterior of the Residence shall comply with the Operating Rules, if applicable. Any drapes or other window coverings installed by Declarant in model residences or in compliance with the Operating Rules may remain for the useful life thereof. Window coverings must be installed on all windows Visible from the streets serving the Project within ninety (90) days after conveyance of the Lot by Declarant unless the Operating Rules provide otherwise.
4.28 YARD EASEMENTS
: A Yard Easement shall be subject to the same restrictions set forth in Section 4.12 (Maintenance Easement), above.
5.1 MAINTAINING COMMON AREA AND IMPROVEMENTS : Except as otherwise specifically provided in this Declaration or a Declaration of Annexation, the Association shall Maintain all Improvements within the Comm on Area, any other Improvements which this Declaration obligates the Association to Maintain, and any Improvements which a Declaration of Annexation obligates the Association to Maintain. The Association shall provide for all necessary services and cause all acts to be done which may be appropriate or proper to Maintain the Common Area and all Improvements it is required to Maintain in first-class condition. To effectuate the Association’s obligations under this Declaration, in particular, to Maintain the Common Area and Improvements that this Declaration requires the Association to Maintain, the Association shall employ a professional management company and s hall ensure that professional landscapers or other professionals, with requisite experience necessary for the Improvement to be Maintained, are employed for that purpose. The Association Maintenance Manual shall provide the standards and level of experience required for the professionals to be employed.
5.1.1 Association Maintenance Manual
: The Association shall Maintain the
Project in compliance with all applicable requirements imposed by the Association Maintenance Manual.
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5.1.2 Bio-Retention Basins : The Association shall Maintain the Bio-Retention Basins situated on Parcels C, D and E, and all storm drain inlets, outlets, overflows and collector pipes that are connected to the Bio-Retention Basins and which convey the filtered water to solid pipes up to the point of connection with the City’s storm water system in accordance with the Association Maintenance Manual, the Stormwater O&M Plan, and the Stormwater Agreement.
5.1.3 Private Drive/EVA
: The Association shall Maintain the Private Drive and the EVA.
5.1.4 Project Exterior Light : The Association shall Maintain each of the Project Exterior Lights.
5.1.5 Project Retaining Wall : The Association shall Maintain each portion of a Project Retaining Wall situated on Common Area.
5.1.6 Records : The Association shall keep appropriate records to document that it has performed all inspections and Maintained all Improvements in compliance with the Association Maintenance Manual.
5.1.7 Regular Inspections
: The Association shall regularly inspect all major
components of the Common Area at least once each year. One of the primary purposes of the inspection shall be to determine how to ext end the life of Common Area Improvements and to prevent damage to such Improvements resulting fr om the Association’s neglect or the failure to properly and adequately Maintain.
5.2 ALTERATIONS TO COMMON AREA
:
5.2.1 Approval : Alterations to any Improvements situated in, upon or under the Common Area may be made only by the Association. A proposal for any such Alteration to an Improvement may be made at any meeting. A proposal may be adopted by the Board, subject to the limitations contained in the Bylaws.
5.2.2 Funding
: Expenditures to Maintain an existing capital Improvement for which reserves have been collected may be made from the Reserve Account. Subject to the limitations set forth in Section 6.5 (Limitations on Assessments), the Board may levy a Special Assessment to fund any Alteration of an Improvement for which no reserve has been collected.
5.3 MAINTAINING LOTS AND RESIDENCES
: Except as otherwise specifically provided
in this Declaration or a Declaration of Annexation, each Owner shall Maintain the Owner’s Lot, including the Residence and other Improvements located thereon, in compliance with the provisions of the Owner Maintenance Manual, in a manner consistent with the standards established by the Project Documents and in compliance with the Architectural Standards.
5.3.1 Association Maintenance Areas
: The Association shall Maintain all
landscaping within Association Maintenance Areas.
5.3.2 Driveways : Each Owner shall Maintain all portions of the driveway which provides access between the Owner’s Residence and the street which provides access to that Lot.
Each Owner shall keep the surface of the driveway on the Owner’s Lot clean and free from oil and grease.
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5.3.3 Exterior Lighting : Each Owner shall Maintain at that Owner’s sole cost and expense all exterior lights which are served by t hat Owner’s electric service except for Project Exterior Lights. All such exterior lights, including bulb, circuit and fixture, which are not photocell operated shall at all times be Maintained by the Owner in good working condition.
5.3.4 Mailboxes
: The Association shall Maintain all mailboxes and the support structures for all mailboxes.
5.3.5 Park Pedestrian Access : The Park Pedestrian Access on Lots 12, 13 and 14 shall be Maintained by the Association.
5.3.6 Pedestrian Access Easement : The Pedestrian Access Easement on Lot 19 shall be jointly Maintained by the Owners of Lots 19 and 20 with all costs shared equally. The Pedestrian Access Easement on Lots 15, 16, 17 and 18 shall be jointly Maintained by the Owners of Lots 15, 16, 17 and 18 with all costs shared equally.
5.3.7 Project Retaining Wall
: Each Owner of a Lot shall Maintain each portion of
a Project Retaining Wall situated on its Lot.
5.3.8 Public Utility : The Association shall Maintain each Improvement within the Public Utility Easements shown on the Map if (a) the Improvement is not Maintained by the public and (b) the Improvement serves more than one (1) Lot.
5.3.9 Shared Drainage Improvements : Each Lot Owner that has the right to use a Shared Drainage Easement and the Shared Drainage Improvements situated therein shall jointly Maintain those Storm Drainage Improvements except for those connecting Drainage Improvements (such as a lateral drain line connected to a down spout or surface area drain) that serve a single Lot which shall be the sole responsibility of the Owner of that Lot and shall be a Owner Maintained Drainage Improvement governed by the provisions of Subsection 5.3.12 (Storm Drainage).
5.3.10 Sidewalks
: The Association shall Maintain all sidewalks within the Project which provide pedestrian circulation within the Project. Each Owner shall Maintain all other walkways on the Owner’s Lot.
5.3.11 Solar Collectors
: Each Owner whose Lot is served by a Solar Collector shall Maintain the Solar Collector at the Owner’s sole cost and expense. ** 5.3.12 Storm Drainage : All area drains, inlets, catch basins and other drainage Improvements (“Drainage Improvements”) shall be cleared and otherwise Maintained so that the Improvements function as they were designed. Except for the Shared Drainage Improvements, each Owner shall clear and otherwise Maintain all Drainage Improvements physically situated within the Owner’s Lot, irrespective of who uses the Drainage Improvements, excluding Drainage Improvements within Association Maintenance Area (“ Owner Maintained Drainage Improvements”). Except for the Shared Drainage Improvements which are jointly Maintained with another Lot Owner(s), all other Drainage Improvements situated within the Project or which extend outside the Project up to and including the point of connection into a publicly maintained storm drain system shall be Maintained by the Association **in accordance with the Association Maintenance Manual, the Stormwater O&M Plan, and the Stormwater Agreement. If the Association is notified by an Owner that storm water is not properly flowing from the surface of that Owner’s Lot, the Association shall investigate the situation, clear all debris from and repair all damage to all Drainage 24 09/28/23
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Improvements which the investigation determines not to be functioning properly or which appear to be the cause of the problem. If the Association determines that the problem was caused by an Owner’s failure to properly Maintain Owner Maintained Drainage Improvements, the Association shall levy a Reimbursement Assessment against that Owner to recover the costs incurred by the Association. If the Association determines that more than one (1) Owner failed to properly Maintain their respective Owner Maintained Drainage Improvements, the Association shall apportion the costs it incurred among those Owners and shall levy Reimbursement Assessments against them.
Except as expressly provided in this Subsection, the Association shall have no duty to inspect Owner Maintained Drainage Improvements. Notwithstanding any language in this Subsection to the contrary, if the Association determines that an Owner Maintained Drainage Improvement requires repair but that the repair is not urgent, the Association may require the Owner of the Owner Maintained Improvement to perform the repair within a reasonable time.
5.3.13 Utility Lines Serving A Single Lot
: Each Owner shall Maintain those
portions of all utility lines which (i) are not Maintained by the public or a quasi-public entity or utility company and (ii) serve only that Owner’s Lot, irrespective of whether the utility line is located on Common Area or on one (1) or more Lots.
5.3.14 Utility Lines Serving More Than One Lot
: The Association shall Maintain
those portions of all utility lines which (i) are not Maintained by the public or a quasi-public entity or utility company and (ii) serve more than one (1) Lot, irrespective of whether the utility line is located on Common Area or on one (1) or more Lots.
5.4 ALTERATIONS TO LOTS AND RESIDENCES
: Alterations may be made to the
interior of an Owner’s Residence, if the Alterations do not impair the structural integrity of the Residence and if the Owner complies with all laws and ordinances regarding alterations and remodeling. Any proposals for Alterations on Lots or to the exteriors of Residences shall be made in accordance with the provisions of Article XI (Architectural and Landscaping Control).
5.5 MAINTAINING FENCES AND WALLS
: If a fence is attached to the top of a wall, that
wall shall be deemed to be part of the fence for purposes of this Section.
5.5.1 Fences Separating Common Area and Lots : Each Owner of a Lot contiguous to Common Area shall Maintain each fence which separates that Lot from Common Area. Maintaining includes refinishing the exterior surface of the fence if that surface was previously finished with paint or stain.
5.5.2 Other Fences and Walls
: Except as provided in Subsection 5.5.1 (Fences
Separating Common Area and Lots) or in a Declaration of Annexation, the Association shall Maintain all fences, fence posts, gates and walls which separate the Owner’s Lot from property located outside the boundaries of the Project.
5.5.3 Project Retaining Walls
: The Project Retaining Walls shall be Maintained
by the Association, for those situated on Common Area, in accordance with the Association Maintenance Manual, and by the Lot Owner for those situated on individual Lots, in accordance with the Owner Maintenance Manual.
5.6 LANDSCAPING
: All landscaping in the Project shall be Maintained in a manner consistent with the standards of design and qualit y as originally established by Declarant and in accordance with the Maintenance Manual. All landscaping shall be kept in a neat and orderly 25 09/28/23
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condition. Any weeds shall be removed and any diseased or dead lawn, trees, ground cover or shrubbery shall be removed and replaced. All lawn areas shall be neatly mowed and trees and shrubs shall be neatly trimmed. Other specific restrictions on landscaping may be established in the Operating Rules. Irrigation systems, if any, shall be kept in good working condition to ensure continued regular watering of landscape areas, and health and vitality of landscape materials.
5.6.1 Association Maintenance Areas
: The Association shall Maintain all
landscaping within Association Maintenance Areas.
5.6.2 Common Area : The Association shall Maintain all landscaping located on Common Area.
5.6.3 Lots : Each Owner shall Maintain all landscaping located within the Owner’s Lot, excluding any Association Maintenance Area. If landscaping within Lots is not installed by Declarant, each Owner shall install permanent landscaping within the Owner’s Lot within **six (6) months after (i) the conveyance of that Lot to the initial Public Purchaser of the Lot, or (ii) the issuance of a certificate of occupancy for the Residence constructed on the Lot, whichever occurs later.
5.6.4 Public Right-of-Way
: The Association shall Maintain all landscaping located within the public right-of way which adjoins any portion of the Project. The obligation to Maintain the landscaping within the public right-of-way shall be transferred to the Association incrementally in accordance with the budgets reviewed by the California Department of Real Estate.
5.6.5 Interim Phasing Irrigation Expenses
: During construction of the Project,
Declarant may use water from an Association water meter to serve Annexable Property which is not then annexed into the Project and Maintained by the Association. So long as Annexable Property which is not then annexed into the Project and Maintained by the Association is so served by water connected to the Association’s water meter(s), the Association shall have the right to recover from Declarant the amount by which the Association’s costs for water service exceed the costs for water service as set forth in the Association’s Budget.
5.6.6 Solar Shade Control Act
: All landscaping shall be Maintained so as to fully
comply with all relevant provisions of the Solar Shade Control Act.
5.7 ELECTRIC VEHICLE CHARGING STATIONS : The Association may, upon its own initiative, install an Electric Vehicle Charging Station upon the Common Area for the use of all Members, in which case the Operating Rules shall clarify the appropriate terms of use for the Electric Vehicle Charging Station. The provisions of this Section 5.7 shall only apply to Electric Vehicle Charging Stations installed by one (1) or more Owners for the use of those Owners. As used in this Declaration “ EVCS Owner” shall refer to an Owner who installs an Electric Vehicle Charging Station or submits an application in accordance with the requirements of Article XI (Architectural and Landscaping Control) for the installation of an Electric Vehicle Charging Station.
5.7.1 EVCS Owner Responsibilities
: Each EVCS Owner shall be solely
responsible for the following:
(a) Cost to Install and Maintain : All costs to install and subsequently Maintain the Electric Vehicle Charging Station;
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(b) Damages : All costs incurred to Restore Common Area, any adjacent Lot(s), and/or the Electric Vehicle Charging Station itself which results from installing, Maintaining, or removing the Electric Vehicle Charging Station;
(c) Electricity
: All costs to supply electricity to the Electric Vehicle Charging Station, including but not limited to the connection of the Electric Vehicle Charging Station to the Owner’s existing electric service, the installation of a dedicated electric meter, or the installation of a submeter (“Submeter”) (in the case of connection to the Association’s electric service) to serve the Electric Vehicle Charging Station, if necessary;
(d) Insurance
: Obtaining and Maintaining in effect at all times liability insurance in accordance with the requirements of Subsecti on 7.6.5 (Electric Vehicle Charging Stations), if applicable; and
(e) Disclosure to Prospective Purchasers : Disclosing to all prospective purchasers of the Owner’s Lot the existence of the Electric Vehicle Charging Station, the fact that the Owner is an EVCS Owner, and the Owner’s responsibilities for the Electric Vehicle Charging Station as set forth in this Declaration.
5.7.2 Association Responsibilities
: The Association shall Maintain, monitor and
calibrate any Submeter described in Paragraph 5.7.1(c) (Electricity) and shall read any such Submeter on a monthly or more frequent basis as determined by the Association. The Association shall maintain a history of the Submeter readings and bill the EVCS Owner for electricity supplied through the Submeter at the same rate paid by the Association for the electricity supplied, all in accordance with applicable California law and regulations. The Association shall also recover from the EVCS Owner the expenses it incurs pursuant to this Section 5.7 (collectively referred to as “EVCS Assessment”).
5.8 ASSOCIATION’S RIGHT TO ENTER AND MAINTAIN
: If an Owner fails to Maintain
an Improvement which that Owner is obligated to Maintain pursuant to this Declaration, and if the Association determines, after Notice and Hearing is provided pursuant to the provisions of the Bylaws, that work must be performed to Maintain the Improvement to preserve the attractiveness, quality, nature, safety and/or value of the Project, the Association may Maintain the Improvement at the expense of the Owner which shall be charged to the Owner as a Reimbursement Assessment. In order to effectuate the provisions of this Declaration, the Association may enter any Lot whenever entry is necessary to Maintain an Improvement which the Association is authorized to undertake pursuant to this Section. Entry within a Lot shall be made with as little inconvenience to an Owner as practicable and only after reasonable advance written notice of not less than forty-eight (48) hours, except in emergency situations.
5.9 DAMAGE AND DESTRUCTION – ASSOCIATION
: If fire or other casualty damage
extends to any Improvement which is insured under an insurance policy held by the Association, the Association shall proceed with the filing and adjustment of all claims arising under the existing policies. The insurance proceeds shall be paid to and held by the Association.
5.9.1 Bids
: Whenever an Improvement is to be Restored pursuant to this Section, the Board shall obtain such bids from responsible licensed contractors to Restore the damaged Improvement as the Board deems reasonable; and the Board, on behalf of the Association, shall contract with the contractor whose bid the Board deems to be the most reasonable. 27 09/28/23
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ARTICLE VI
FUNDS AND ASSESSMENTS
5.9.2 Sufficient Proceeds : The cost to Restore the damaged Improvement shall be funded pursuant to the provisions and in the priority established by this Subsection 5.9.2. A lower priority procedure shall be utilized only if the aggregate amount of funds then available pursuant to the procedures of higher priority are insufficient to Restore the damaged Improvement.
The following funds and procedures shall be utilized:
1. The first priority shall be any insurance proceeds paid to the Association under existing insurance policies.
2. The second priority shall be all Reserve Account funds designated for the repair or replacement of the capital Improvement(s) which has been damaged.
3. The third priority shall be funds raised by a Special Assessment against all Owners levied by the Board up to the maximum amount permitted without the approval of the Members in accordance with the limitations set forth in Section 6.5 (Limitations on Assessments).
4. The fourth priority shall be any funds raised by a Special Assessment against Owners levied by the Board pursuant to a vote of the Members pursuant to Subsection
5.9.3 (Additional Special Assessment).
5.9.3 Additional Special Assessment
: If the total funds available to Restore the
damaged Improvement pursuant to the first three priorities described in Subsection 5.9.2 (Sufficient Proceeds) are insufficient to Restore the damaged Improvement, then a special meeting of the Members shall be called for the purpose of voting whether to impose an additional Special Assessment and deciding upon the amount thereof. The Board shall then contract to Restore the damaged Improvement as described above, making use of whatever funds are then available to it.
5.10 DAMAGE AND DESTRUCTION – OWNERS
: If all or any portion of a Lot or
Residence is damaged by fire or other casualty and the loss is not covered by an insurance policy held by the Association, the Owner of the Im provement shall either (i) Restore the damaged Improvements, unless the Owner complies with the provisions of Article XI (Architectural and Landscaping Control), or (ii) remove all damaged Improvements, including foundations, and leave the Lot in a clean and safe condition. Unless extended by the Board, the Owner must commence such work within one hundred twenty (120) days after the damage occurs and must complete the work within one (1) year thereafter.
5.11 CONDEMNATION OF COMMON AREA
: If all or any portion of the Common Area is
taken for any public or quasi-public use under any statute, by right of eminent domain or by purchase in lieu of eminent domain, the entire award shall be deposited into the Current Operating Account until distributed. The Association shall distribute such funds equally to all Owners and shall represent the interests of all Owners.
6.1 COVENANTS TO PAY
: Declarant and each Owner covenant and agree to pay to the Association the Assessments and any Additional Charges levied pursuant to this Article VI. 28 09/28/23
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6.1.1 Liability for Payment : The obligation to pay Assessments shall run with the land so that each successive record Owner of a Lot shall in turn be liable to pay all Assessments levied against the Owner’s Lot. No Owner may waive or otherwise escape personal liability for Assessments or release the Owner’s Lot from the liens and charges hereof by non-use of the Common Area, abandonment of the Lot or any other attempt to renounce rights in the Common Area or the facilities or services within the Project. Each Assessment shall constitute a separate Assessment and shall also be a separate, distinct and personal obligation of the Owner of the Lot at the time when the Assessment was levied and shall bind the Owner’s heirs, devisees, personal representatives and assigns. Any Assessment not paid within fifteen (15) days after its due date is delinquent. The personal obligation of an Owner for delinquent Assessments shall not pass to a successive Owner unless the personal obligation is expressly assumed by the successive Owner.
No such assumption of personal liability by a successor Owner (including a contract purchaser under an installment land contract) shall relieve any Owner from personal liability for delinquent Assessments. After an Owner transfers fee title of record to a Lot, the Owner shall not be liable for any charge thereafter levied against that Lot.
6.1.2 Funds Held in Trust
: The Assessments collected by the Association shall
be held by the Association for and on behalf of each Owner and shall be used solely to operate and Maintain the Project as provided in this Declaration.
6.1.3 Offsets
: No offsets against any Assessment shall be permitted for any reason, including, without limitation, any claim that the Association is not properly discharging its duties.
6.2 REGULAR ASSESSMENTS
:
6.2.1 Payment of Regular Assessments : Regular Assessments for each fiscal year shall be established when the Board approves the Budget for that fiscal year. Regular Assessments shall be levied on a fiscal year basis; however, each Owner shall be entitled to pay the Regular Assessment in twelve (12) equal monthly installments, one installment payable on the first day of each calendar month during the fiscal year, as long as the Owner is not delinquent in the payment of any monthly installment. If an Owner fails to pay any monthly installment by the sixtieth (60
th) day after the date the installment was due, the Board may terminate that Owner’s right to pay the Regular Assessment in monthly installments and declare the then unpaid balance of the Regular Assessment for that year immediat ely due and payable. Regular Assessments shall commence for all Lots in each Phase on the first day of the first month following the month in which the first Lot in that Phase is conveyed to a Public Purchaser and may commence at any earlier date at the option of Declarant. Declarant may exercise its option to commence Regular Assessments in a Phase at an earlier date, by providing a written notice to the Association which identifies the Phase and specifies the date on which Regular Assessments are to commence.
6.2.2 Allocation of Regular Assessments
: The total amount of the Association’s
anticipated revenue attributable to Regular Assessments as reflected in the Budget for a fiscal year shall be allocated among the Lots during that fiscal year as provided in this Subsection. (a) Electric Vehicle Charging Station : Any EVCS Assessment allocable to an EVCS Owner, as those terms are defined in Section 5.7 (Electric Vehicle Charging Stations), shall be allocated solely to the EVCS Owner in accordance with Section 5.7. 29 09/28/23
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(b) Equal Allocation : All other items in the Budget shall be allocated to and assessed among all Lots equally.
(c) Annexation : Upon the Effective Date of a Declaration of Annexation, the allocation and assessment of the charges in the Budget shall be reallocated among all Lots in the Project, including those in the annexed portions of the Annexable Property, in accordance with the provisions of this Section.
6.2.3 Exemptions from Regular Assessment
: Notwithstanding the provisions of
Subsection 6.2.1 (Payment of Regular Assessments) and Subsection 6.2.2 (Allocation of Regular Assessments), the Board shall exempt each Owner of a Lot which satisfies Paragraph (a), below, and may exempt all Owners if Paragraph (b), below, is satisfied, from the payment of a portion of the Regular Assessment levied against that Lot as described in those Paragraphs. (a) Lots : An Owner of a Lot is exempt fr om payment of that portion of the Regular Assessment which is allocated for def raying operating expenses and reserves directly attributable to landscaping situated on that Owner’s Lot for which the Association is responsible until any such landscaping which is to be installed on the Owner’s Lot is installed and no one other than the Association has any obligation to Maintain the landscaping. (b) Other Common Area
: Each Owner may be exempted from payment of that
portion of the Regular Assessment which is allocated for defraying operating expenses and reserves directly attributable to the existence and use of a common facility (including landscaping) that is not complete at the time Regular Assessments commence until the first to occur of the following events: (i) a notice of completion of the common facility is recorded; (ii) the common facility has been placed into use; or (iii) in the case of landscaping, the landscaping is installed and no one other than the Association has any obligation to Maintain the landscaping.
6.2.4 Non-Waiver of Assessments
: If before the expiration of any fiscal year the
Association fails to fix Regular Assessments for the next fiscal year, the Regular Assessment established for the preceding year shall continue until a new Regular Assessment is fixed.
6.3 SPECIAL ASSESSMENTS : Subject to the limitations set forth in Section 6.5 (Limitations on Assessments), Special Assessments may be levied in addition to Regular Assessments for (i) constructing capital Improvements, (ii) correcting an inadequacy in the Current Operating Account, (iii) defraying, in whole or in part, the cost of any construction, reconstruction, unexpected repair or replacement of Improvements in the Common Area, or (iv) paying for such other matters as the Board may deem appropriate for the Project. Special Assessments shall be levied in the same manner as Regular Assessments.
6.4 REIMBURSEMENT ASSESSMENTS
: The Association shall levy a Reimbursement
Assessment against an Owner to (a) reimburse the Association for the costs of repairing damage caused by that Owner or that Owner’s Invitee or (b) if a failure to comply with the Project Documents has resulted in (i) an expenditure of monies, including attorneys’ fees, by the Association to bring the Owner or the Owner’s Lot into compliance or (ii) the imposition of a fine or penalty. A Reimbursement Assessment shall be due and payable to the Association when levied.
A Reimbursement Assessment shall not be levied by the Association until Notice and Hearing has been provided in accordance with the Bylaws. Reimbursement Assessments may not be enforced by lien.
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6.5 LIMITATIONS ON ASSESSMENTS : No Special Assessment or increase in Regular Assessment shall be levied by the Board in violation of California Civil Code Section 5605, except as permitted by California Civil Code Section 5610. The Board shall provide notice of any Special Assessment or any increase in Regular Assessment as required by California Civil Code Section 5615.
6.6 ACCOUNTS AND REVIEWS :
6.6.1 Types of Accounts : Assessments collected by the Association shall be deposited into at least two (2) separate accounts with a responsible financial institution, which accounts shall be clearly designated as (i) the Cu rrent Operating Account and (ii) the Reserve Account. The Board shall deposit those porti ons of the Assessments collected for current maintenance and operation into the Current Operating Account and shall deposit those portions of the Assessments collected as reserves for replacement and deferred maintenance of major components which the Association is obligated to Maintain into the Reserve Account.
6.6.2 Reserve Account
: The Association shall expend funds from the Reserve
Account only for the purposes set forth in California Civil Code Section 5510(b) or California Civil Code Section 5515, subject to strict compliance with the limitations set forth in California Civil Code Section 5520, if applicable. Withdrawal of funds from the Reserve Account shall require the signatures of either two (2) Directors or one (1) Director and one (1) officer of the Association who is not a Director.
6.6.3 Current Operating Account
: Except as provided in Subsection 6.6.2
(Reserve Account) all costs properly payable by the Association shall be paid from the Current Operating Account.
6.6.4 Board Review of Accounts and Finances : At least quarterly, in compliance with California Civil Code Section 5500, the Board shall: (i) cause a current reconciliation of the Association’s Operating Account(s) to be made and review the same; (ii) cause a current reconciliation of the Association’s Reserve Account to be made and review the same; (iii) review the current year’s actual reserve revenues and expenses compared to the current year’s Budget; (iv) review the most current account statement s prepared by the financial institution where the Association has its Operating and Reserve Accounts; and (v) review an income and expense statement for the Association’s Operating and Reserve Accounts.
6.6.5 Accountant Review of Financial Statements
: If the gross income to the
Association in any fiscal year exceeds seventy-five thousand dollars ($75,000) (or any different amount then set forth in California Civil Code Section 5305), the Board shall have the Association’s financial statements for that fiscal year reviewed by a licensee of the California Board of Accountancy in compliance with the requirements of California Civil Code Section 5305. A summary of the review shall be distributed as required by Subsection 6.8.3 (Accountant Review).
6.7 BUDGET PREPARATION
: At least thirty (30) days before the end of each fiscal year, the Board shall prepare a pro forma operating budget (“Budget”) for the following fiscal year which shows estimated revenue and expenses on a fiscal year basis. For the first fiscal year, the Budget shall be substantially based upon the operating budget reviewed by the Department of Real Estate of the State of California. After a new Phase has been annexed, the Board shall approve a Budget, which is substantially based upon the most recent operating Budget reviewed by the Department of Real Estate of the State of California in connection with the Public Report for that Phase, for the 31 09/28/23
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remainder of the current fiscal year for us e upon the commencement of Regular Assessments against Lots in the new Phase. The Budget or a summary of the budget shall be distributed as required by Subsection 6.8.1 (Annual Budget Report).
6.8 DISTRIBUTION OF BUDGET, FINANCIAL STATEMENTS AND REPORTS :
6.8.1 Annual Budget Report : The Board shall annually prepare and distribute to the Members an annual budget report in compliance with the requirements of California Civil Code Section 5300. The annual budget report shall include the Budget and the summaries or statements listed in subdivision (b) of California Civil Code Section 5300. A su mmary of the annual budget report may be distributed in lieu of the entire report if the requirements set forth in California Civil Code Section 5320 are satisfied. As of the date of recordation of this Declaration, the annual budget report must be distributed within thirty (30) to ninety (90) days before the end of each fiscal year.
6.8.2 Annual Policy Statement
: The Board shall annually prepare and distribute
to the Members an annual policy statement in compliance with the requirements of California Civil Code Section 5310. The annual policy statement shall be accompanied by the disclosures required by California Civil Code Sections 5730, 5920 and 5965. A summary of the annual policy statement may be distributed in lieu of the entire statement if the requirements set forth in California Civil Code Section 5320 are satisfied. As of the date of recordation of this Declaration, the annual policy statement must be distributed within thirty (30) to ninety (90) days before the end of each fiscal year.
6.8.3 Accountant Review
: A summary of any review of the Association’s financial statements required by Subsection 6.6.5 (Account ant Review of Financial Statements) shall be distributed to the Members in compliance with the requirements of California Civil Code Section 5305. As of the date of recordation of this Declaration, the review of financial statements must be distributed within one hundred twenty (120) days after the end of each fiscal year.
6.9 RESERVE ACCOUNT STUDY
: The Board shall (i) cause a study of the Reserve
Account to be conducted at least once every three (3 ) years, (ii) review or cause the study to be reviewed annually and (iii) consider and implement necessary or appropriate adjustments to the Board’s analysis of the Reserve Account requirements as a result of that review in compliance with the provisions of California Civil Code Section 5550.
6.10 ENFORCEMENT OF ASSESSMENTS
:
6.10.1 Notice of Delinquent Assessment : The Association may record a notice of delinquent assessment as authorized by California Civil Code Section 5675 against an Owner’s Lot for failure to pay Assessments. No such notice of delinquent Assessment may be recorded until (a) all of the requirements of California Civil Code Sections 5660, 5670 and 5673 have been satisfied, (b) the Association has offered to “meet and confer” as required by California Civil Code Section 5670, and (c) if the Owner accepts the offer to “meet and confer,” the Association has participated in the internal dispute resolution procedures applicable to the Association and its Members pursuant to California Civil Code Section 5905.
6.10.2 Procedures
: In addition to all other remedies provided by law, the Association, or its authorized representative, may enforce the obligations of the Owners to pay each 32 09/28/23
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Assessment provided for in this Declaration in any manner provided by law or by either or both of the following procedures:
(a) By Suit : The Association may commence and prosecute a suit at law against any Owner personally obligated to pay a delinquent Assessment. The suit shall be prosecuted in the name of the Association. Any judgment rendered in any action shall include the amount of the delinquency, and such Additional Charges and any other amounts as the court may award. A proceeding to recover a judgment for unpaid Assessments may be prosecuted without the necessity of foreclosing or waiving the lien established herein. (b) By Lien
: The Association or a trustee nominated by the Association may commence and prosecute proceedings to foreclose the lien established by recording a notice of delinquent assessment as provided in Subsection 6.10.1 (Notice of Delinquent Assessment) at any time after expiration of thirty (30) days following the recording in accordance with the provisions of California Civil Code Section 5700, subject to the limitations set forth in California Civil Code Section 5705.
6.10.3 Additional Charges
: In addition to any other amounts due or any other relief or remedy obtained against an Owner who is delinquent in the payment of any Assessments, each Owner agrees to pay such Additional Charges as the Association may incur or levy in collecting the monies due and delinquent from that Owner. All Additional Charges shall be included in any judgment in any suit or action brought to enforce collection of delinquent assessments or may be levied against a Lot as a Reimbursement Assessment. Additional Charges shall include, but not be limited to, the following:
(a) Attorneys’ Fees
: Reasonable attorneys’ fees and costs incurred in the event an attorney(s) is employed to collect any Assessment or sum due, whether by suit or otherwise; (b) Late Charges : A late charge in an amount to be fixed by the Board in accordance with the then current laws of the State of California to compensate the Association for additional collection costs incurred in the event any Assessment or other sum is not paid when due or within any “grace” period established by law;
(c) Costs of Suit
: Costs of suit and court costs incurred as are allowed by the court;
(d) Interest : Interest on the delinquent Assessment and Additional Charges at a rate fixed by the Board in accordance with the then current laws of the State of California; and (e) Other : Any such other additional costs that the Association may incur in the process of collecting delinquent Assessments or sums.
6.10.4 Satisfaction of Lien : All amounts paid by an Owner toward a delinquent Assessment shall be credited first to reduce the principal amount of the debt. Within twenty-one (21) days of payment or other satisfaction of a delinquent Assessment for which a notice of delinquent assessment was recorded as provided in Subsection 6.10.1 (Notice of Delinquent Assessment), the Association shall record a certificate stating the satisfaction and release of the Assessment lien as required by California Civil Code Section 5685. 33 09/28/23
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ARTICLE VII
MEMBERSHIP IN AND DUTIES OF THE ASSOCIATION
6.10.5 Lien Eliminated By Foreclosure : If the Association has recorded a Notice of Delinquent Assessment and the lien is eliminated as a result of a foreclosure of a Mortgage or a transfer pursuant to the remedies provided in the Mortgage, the new Owner of the Lot shall pay to the Association a pro-rata share of the Regular Assessment for each month remaining in the Association’s fiscal year after the date of the foreclosure or transfer pursuant to the remedies provided in the Mortgage.
6.10.6 Waiver of Homestead Protections
: Each Owner, does hereby waive, to the
extent permitted by law, the protections of any declared homestead or homestead exemption or redemption laws under the laws of California as applied to any action to enforce or collect Assessments levied by the Association.
6.11 SUBORDINATION OF ASSESSMENT LIEN
: Notwithstanding any provision to the
contrary, the liens for Assessments created pursuant to this Declaration shall be subject and subordinate to and shall not affect the rights of the holder of a First Mortgage made in good faith and for value. Upon the foreclosure of any First Mortgage on a Lot, any lien for Assessments which became due prior to such foreclosure shall be ex tinguished; provided, however, that after such foreclosure there shall be a lien on the interest of the purchaser at the foreclosure sale to secure all Assessments, whether Regular or Special, charged to such Lot after the date of such foreclosure sale, which lien shall have the same effect and shall be enforced in the same manner as provided herein. For purposes of this Section, a Mortgage may be given in good faith or for value even though the Mortgagee has constructive or actual knowledge of the Assessment lien provisions of this Declaration.
7.1 THE ORGANIZATION
: The Association is a nonprofit mutual benefit corporation. Its affairs shall be governed by and it shall have the powers set forth in the Project Documents.
7.2 MEMBERSHIP : Each Owner (including Declarant for so long as Declarant is an Owner), by virtue of being an Owner, shall be a Member of the Association. No other person shall be accepted as a Member.
7.2.1 Appurtenant to Ownership
: Association membership is appurtenant to and
may not be separated from the ownership of a Lot. Membership shall terminate upon termination of Lot ownership. Ownership of a Lot shall be the sole qualification for Association membership.
Membership shall not be transferred, pledged or alienated in any way except upon transfer of title to the Owner’s Lot (and then only to the transferee of title to such Lot). Any attempt to make a prohibited transfer is void. Membership shall not be related to the use or non-use of the Common Area and may not be renounced. The rights, duties, privileges and obligations of all Members shall be as provided in the Project Documents.
7.2.2 Annexation
: Upon the commencement of Regular Assessments in a
subsequent Phase, the Owners of the Lots described in the Declaration of Annexation for that Phase shall become Members.
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7.3 VOTING : Any action required by law or by the Project Documents to be approved by the Owners, the Members or each class of Members shall be approved, if at all, in accordance with the procedures set forth in the Bylaws.
7.4 OPERATING RULES
: Operating Rules may be adopted and changed in accordance with the provisions of California Civil Code Division 4, Part 5, Chapter 3, Article 5 (Sections 4340 et seq.). In all votes held pursuant to California Civil Code Section 4365(e) Class A Members shall be entitled to cast Class A votes, Class B Members shall be entitled to cast Class B votes and all votes shall be counted pursuant to the provisions of Subsection 4.3.3 (Of the Members) of the Bylaws. Operating Rules may address any matter that is related to the operation or management of the Project. Each provision of the Operating Rules must be consistent with the then current law and the Project Documents and may not reduce any standard established by this Declaration unless mandated by then current law. The Operating Rules may include Architectural Standards.
Architectural Standards may include, but are not limited to, (a) standards and procedures for architectural review, (b) guidelines for architectural design, placement of buildings, color schemes, exterior finishes and materials, landscaping, fences, and similar features, (c) guidelines for architectural design, size, placement, color and finish of Electric Vehicle Charging Stations or Solar Collectors, and (d) a schedule of fees for processing submittals which shall not exceed the amount necessary to defray all costs incurred in processing the submittals. The Architectural Standards may impose different requirements on different Lots if those requirements are reasonable in light of that Lot’s topography, visibility or other aesthetic factors.
7.5 TRANSFERS OF COMMON AREA
: The Board shall have the exclusive power and
right to grant, convey, dedicate, mortgage, or otherwise transfer to any Owner or other person or entity, fee title, easements, exclusive use easements, security rights or other rights or licenses in, on, over or under the Common Area, subject only to the following limitations:
7.5.1 Exclusive Use Rights to Owners
: Transfers to Owners which are subject
to the provisions of California Civil C ode Section 4600 require membership approval (“ 4600 Transfer”). A 4600 Transfer must be approved by the Members in accordance with the Secret Ballot Procedure described in Section 2.9 of the Bylaws (Secret Ballot Procedure) and the membership approval shall be deemed to satisfy the membership approval requirement of Section 4600.
7.5.2 Value of Property Being Sold
: Any sale of Common Area during a fiscal
year which has an aggregate fair market value greater than five percent (5%) of the budgeted gross expenses of the Association requires the approval of each class of Members in accordance with the provisions of Section 3.3 of the Bylaws (Limitations on Powers of Board). The Board may rely upon an appraisal provided to it or obtained by it at the time of the sale. If the sale is also a 4600 Transfer, the Secret Ballot Procedure must be used and the approval of each class of Members in accordance with the provisions of Section 3.3 of the Bylaws (Limitations on Powers of Board) shall be deemed to satisfy the membership approval requirement of Section 4600.
7.6 INSURANCE
: The Board shall make every reasonable effort to obtain and keep in full force and effect the insurance policies as provided in this Section. If the Board is unable to purchase a policy or if the Board believes that the cost of the policy is unreasonable, the Board shall call a special meeting of Members to determine what action to take. The Board shall comply with any resolution concerning insurance coverage adopted at such a meeting. 35 09/28/23
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7.6.1 General Provisions and Limitations : All insurance policies shall be subject to and, where applicable, shall contain the following provisions and limitations:
(a) Underwriter : All policies (except earthquake insurance) shall be written with a company legally qualified to do business in the State of California and (i) holding a “B” or better general policyholder’s rating and a “6” or better financial performance index rating as established by Best’s Insurance Reports, (ii) reinsured by a co mpany described in (i), above, or (iii) if such a company is not available, the best rating possible or its equivalent. (b) Named Insured
: Unless otherwise provided in this Section, the named insured shall be the Association or its authorized representative, as a trustee for the Owners.
However, all policies shall be for the benefit of Owners and their Mortgagees, as their interests may appear.
(c) Authority to Negotiate
: Exclusive authority to adjust losses under policies
obtained by the Association shall be vested in the Board; provided, however, that no Mortgagee having an interest in such losses may be prohibited from participating in any settlement negotiations related thereto.
(d) Contribution
: In no event shall the Association’s insurance coverage be brought into contribution with insurance purchased by Owners or their Mortgagees. (e) General Provisions : To the extent possible, the Board shall make every reasonable effort to secure insurance policies providing for the following:
(i) A waiver of subrogation by the insurer as to any claims against the Board, the manager, the Owners and their respective servants, agents and guests; (ii) That the policy will be primary, even if an Owner has other insurance which covers the same loss;
(iii) That no policy may be cancelled or substantially modified without at least thirty (30) days prior written notice to the Association and to each First Mortgagee listed as a scheduled holder;
(iv) An Agreed Amount Endorsement, if the policy contains a coinsurance clause;
(v) A Guaranteed Replacement Cost or Replacement Cost Endorsement; and
(vi) An inflation guard endorsement.
(f) Term
: The period of each policy shall not exceed three (3) years. Any policy for a term greater than one (1) year must permit short rate cancellation by the insureds. (g) Deductible : The policy may contain a reasonable deductible and the amount of the deductible shall be added to the face amount of the policy in determining whether the insurance equals replacement cost.
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7.6.2 Types of Coverage : Unless the Association determines otherwise pursuant to Section 7.6 (Insurance), the Board shall obtain at least the following insurance policies in the amounts specified:
(a) Property Insurance
: A Special Form or “All-Risk” policy of property
insurance for all insurable Common Area Improv ements, including fixtures and building service equipment, against loss or damage by fire or other casualty, in an amount equal to the full replacement cost (without respect to depreciation) of the Common Area, and exclusive of land, foundations, excavation and other items normally excluded from coverage. A Replacement Cost Endorsement shall be part of the policy.
(b) Liability Insurance
: A combined single limit policy of liability insurance in an amount not less than Three Million Dollars ($3,000,000.00) covering the Common Area and damage or injury caused by the negligence of the Association, the Board or any of its agents or the Owners against liability to the public or to any Owner incident to the use of or resulting from an accident or intentional or unintentional act of an Owner or a third party occurring in or about any Common Area. If available, each policy shall contain a cross liability endorsement in which the rights of the named insured shall not be prejudiced with respect to any action by one named insured against another named insured.
(c) Worker’s Compensation
: Worker’s compensation insurance to the extent
necessary to comply with all applicable laws of the State of California or the regulations of any governmental body or authority having jurisdiction over the Project. (d) Fidelity Bond
: A fidelity bond naming the Board, the Owners, the Association and such other persons as the Board may designate as obligees, in an amount equal to at least one-fourth (¼) of the total sum budgeted for the Current Operating Account and Reserve Account for the current fiscal year. The fidelity bond shall contain a waiver of any defense based on the exclusion of persons serving without compensation.
(e) Directors and Officers
: Errors and omissions insurance covering individual
liability of Directors and officers for their negligent acts or omissions while acting in their capacities as Directors and officers in an amount equal to at least the minimum amount specified in California Civil Code Section 5800(a)(4).
(f) Other Insurance
: Other types of insurance as the Board determines to be necessary to fully protect the interests of the Owners.
7.6.3 Insurance by Owner : Each Owner, at that Owner’s sole cost and expense, shall obtain insurance coverage which the Owner considers necessary or desirable to protect that Owner and that Owner’s Lot, Residence and personal property; provided, however, that no Owner shall be entitled to procure insurance coverage which decreases the amount which the Association, on behalf of all Owners and their Mortgagees, may realize under any insurance policy the Association may have in effect at any time.
7.6.4 Annual Review
: The Board shall review the adequacy of all Association policies of insurance, including the amount of liability coverage and the amount of property damage coverage, at least once every year. At least once every three years, the review shall include a replacement cost appraisal of all insurabl e Common Area Improvements without respect to depreciation. The Board shall adjust the policies to provide the amounts and types of coverage and 37 09/28/23
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protection that are customarily carried by prudent owners of similar property in the area in which the Project is situated.
7.6.5 Electric Vehicle Charging Stations : If an Electric Vehicle Charging Station is installed for the benefit of an Owner within Common Area or a structure which extends to the boundary of the Owner’s Lot, the Owner shall obtain and keep in effect at all times a homeowner liability coverage policy in the amount of not less than One Million Dollars ($1,000,000.00), in accordance with California Civil Code Section 4745(f)(3). Such policy shall name the Association as an additional insured and shall provide that it may not be cancelled or substantially modified without at least thirty (30) days prior written notice to the Association.
7.7 ANNUAL BUDGET REPORT AND ANNUAL POLICY STATEMENT
: The Association
shall annually distribute to the Members an annual budget report in compliance with the requirements of Subsection 6.8.1 (Annual B udget Report) and an annual policy statement in compliance with the requirements of Subsection 6.8.2 (Annual Policy Statement).
7.8 MONETARY PENALTIES
: The Board may adopt a schedule of monetary penalties as permitted by California Civil Code Section 5850 provided it is not inconsistent with the Project Documents. The Board shall include a copy of the schedule in the annual policy statement required by Subsection 6.8.2 (Annual Policy Statement). Each time the schedule is modified, the Board shall again deliver a copy to each Owner in compliance with the requirements of California Civil Code Section 4040.
7.9 DOCUMENTS FOR DISTRIBUTION TO PROSPECTIVE PURCHASERS : Upon
written request by a Member, the Association shall provide the Member with a copy of any or all items described in California Civil Code Section 4525(a). Upon receipt of such request, the Association shall provide a disclosure on the form described in California Civil Code Section 4528 with a written or electronic estimate of the fees that will be assessed for providing the requested documents. Within ten (10) days of the mailing or delivery of such request, the Association shall provide the requested documents. The items required to be made available pursuant to California Civil Code Sections 4525(a) and 4530 may be kept in electronic form and the Member shall have the option of receiving the items by electronic transmission or machine-readable storage media if the Association keeps the items in electronic form. At the time of delivery of the requested documents, the Association shall provide the Member with a copy of the completed form specified in California Civil Code Section 4528. The Association may collect a reasonable fee based upon the Association’s actual cost to procure, prepare, reproduce and deliver the requested items.
7.10 AUTHORITY TO REPRESENT ASSOCIATION
: Neither an Owner nor the Association
(including its officers and Directors) may represent that the Association or the Members are in favor of or against any proposed residential, commercial, recreational or industrial development or a governmental approval connected with any such development, including, but not by way of limitation, zoning or rezoning decision, specific or general plan amendment or decision, tentative or final map approval or use permit, without the approval of each class of Members. 38 09/28/23
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ARTICLE VIII
DEVELOPMENT RIGHTS
8.1 LIMITATIONS OF RESTRICTIONS : Declarant is undertaking the work of developing Lots and other Improvements within the Projec t. The completion of the development and the marketing, sale, lease, rental and/or other disposition of the Lots is essential to the establishment and welfare of the Subject Property and the Annex able Property as a residential community. In order that the work may be completed and the Project established as a fully occupied residential community as rapidly as possible, nothing in this Declaration shall be interpreted to deny Declarant the rights set forth in this Article.
8.2 RIGHTS OF ACCESS AND COMP LETION OF CONSTRUCTION
: Until Five (5) years
after all of the Annexable Property has been annexed to the Project, constitutes a part of the Project and is made subject to this Declaration as provided in Section 12.3 (Effect of Annexation), Declarant, its contractors and subcontractors shall have the right to: (i) obtain reasonable access over and across the Common Area of the Project and/or do within any Lot owned or controlled by it whatever is reasonably necessary or advisable in connection with the completion of the Project; (ii) use portions of the Project as staging or storage areas for materials and equipment; and (iii) erect, construct and use on the Common Area of the Project and/or within any Lot owned or controlled by it such structures as may be reasonably necessary for the conduct of its business to complete the work, establish the Project as a residential community and dispose of the Project in parcels by sale, lease, rental or otherwise. Each Owner acknowledges that: (a) the construction of the Project may occur over an extended period of time; (b) the Owner’s quiet use and enjoyment of the Owner’s Lot may be disturbed as a result of the noise, dust, vibrations and other nuisances associated with construction activities; and (c) the nuisances will continue until the completion of the construction of the entire Project. The provisions of this Section 8.2 shall not be interpreted to limit any other rights established or reserved by Declarant.
8.3 SIZE AND APPEARANCE OF PROJECT
: Declarant shall not be prevented from
increasing or decreasing the number of Lots that may be annexed to the Project or from changing the exterior appearance of Residences or Common Area structures, the landscaping or any other matter directly or indirectly connected with the Project in any manner deemed desirable by Declarant, if Declarant obtains all governmental consents required by law.
8.4 MARKETING RIGHTS
: Declarant has the right to: (i) construct, establish and use model homes, signs, banners, flags, inflatable balloons, blimps, sales offices, sales and construction trailers, leasing offices, rental offices, storage areas, parking lots and related facilities in any Lots owned or controlled by Declarant or in Common Area within the Project as is appropriate in the opinion of Declarant for the sale, lease, rental or other disposition of the Lots in the Project and lots in any other neighborhood in the vicinity of the Project in which Declarant is constructing and selling the same or a similar product type (“Related Lots”); (ii) make reasonable use of the Common Area and facilities for the sale, lease, rental or other disposition of Lots and Related Lots; (iii) use any Lots owned or cont rolled by Declarant in accordance with any promotional programs established from time to time by Declarant; and (iv) conduct its business of disposing of Lots and Related Lots by sale, lease, rental or otherwise; provided, however, Declarant shall pay reasonable rent for the use of any Common Area facilities to the Association if Declarant’s use of those Common Area facilities materially interferes with the full use and enjoyment of the Common Area facilities by Owners.
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ARTICLE IX
RIGHTS OF MORTGAGEES
ARTICLE X
AMENDMENT AND ENFORCEMENT
8.5 RIGHTS TO RESTRICT ACCESS : Declarant expressly reserves the right to restrict access to any portion of the Project or the Annexable Property on which construction or staging activity is occurring, or materials are stored. Access may be restricted by signs, personnel, fences or other barriers or by other reasonable means. Restrictions imposed pursuant to this Section 8.5 are not subject to the rental payment provisions of Section 8.4 (Marketing Rights).
8.6 TITLE RIGHTS
: This Declaration shall not be construed to constitute a limitation on Declarant’s title rights to the Annexable Property prior to its annexation, nor shall it impose any obligation on Declarant or any other person or entity to improve, develop or annex any portion of the Annexable Property. This Declaration shall not be construed to limit the right of Declarant at any time prior to such an annexation to establish additional licenses, easements, reservations, restrictions and rights-of-way fo r itself, utility companies or others as reasonably necessary or appropriate for the proper development and disposition of property owned by Declarant.
9.1 CONFLICT
: Notwithstanding any contrary provision in the Project Documents, the provisions of this Article shall control with respect to the rights and obligations of Mortgagees specified herein.
9.2 INSPECTION OF BOOKS AND RECORDS
: Upon request, any Owner or First
Mortgagee shall be entitled to inspect and copy the books, records and financial statements of the Association, the Project Documents and any amendments thereto during normal business hours.
9.3 MORTGAGE PROTECTION
: A breach of any of the conditions or the enforcement of any lien provisions contained in this Declaration shall not defeat or render invalid the lien of any First Mortgage made in good faith and for value as to any Lot in the Project; but all of the covenants, conditions and restrictions contained in this Declaration shall be binding upon and effective against any Owner of a Lot if the Lot is acquired by foreclosure, trustee’s sale or otherwise.
10.1 AMENDMENTS
:
10.1.1 Approval : Notwithstanding anything set forth herein to the contrary, no provision of this Declaration may be added, amended or eliminated and this Declaration may not be terminated without the prior written consent of the City. The City shall be given not less than thirty (30) days to review and consider any proposed changes to this Declaration. Subject to the preceding two sentences, prior to the conveyance by Declarant of the first Lot, this Declaration may be amended by Declarant alone. After the conveyance by Declarant of the first Lot, this Declaration may be amended if each of the following requirements is satisfied:
(a) The approval of each class of Members is obtained in accordance with Section 4.3 (Voting Procedures) of the Bylaws and the Secret Ballot Procedure as defined in Section 2.9 (Secret Ballot Procedure) of the Bylaws (both sections are hereby incorporated into this 40 09/28/23
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Declaration by this reference); provided, however, that no provision of this Declaration which provides for a vote of more than fifty-one percent (51%) may be amended by a vote less than the percentage specified in the Section to be amended.
(b) The provisions of Article VIII (Development Rights) and this Paragraph
10.1.1(b) may not be amended without the consent of Declarant until (i) all of the Annexable Property has been annexed to the Project and (ii) all of the Lots in the Project owned by Declarant have been conveyed.
(c) The provisions of Article XII (Annexation), Subsection 11.1.3 (Declarant Exemption) and this Paragraph 10.1.1(c) may not be amended without the consent of Declarant until all of the Annexable Property has been annexed to the Project and all of the Lots in the Project owned by Declarant have been conveyed.
(d) The provisions of Subsection 3.4.15 (Right of Entry to Inspect), Subsection
3.4.16 (Right of Entry to Perform Work), Subsection 3.4.17 (Right to Photograph), Section 10.3 (Disputes with Declarant), Section 10.4 (Mandatory Binding Arbitration), and this Paragraph
10.1.1(d) may not be amended nor shall other provisions be adopted that purport to supersede them without the consent of Declarant.
10.1.2 Unilateral Amendment and Prospective Application :
(a) New Law : Declarant shall have the right to change the provisions of this Declaration under the following circumstances: statutory changes are adopted or the law is changed through the decision of a court (collectively “New Law”) and the New Law imposes a new requirement on Owners or the Association, invalidates a provision of this Declaration, results in the inability to enforce a provision of this Declarati on or prevents the operation of a provision of this Declaration. To amend this Declaration to effectuate changes as a result of any such New Law, Declarant must record a document that (i) describes the Project, (ii) references this Subsection
10.1.2, (iii) describes the New Law, (iv) describes the Sections in this Declaration that are affected by the New Law, and (v) contains any appropriate new provisions. (b) Corrections
: Declarant shall have the right to record a corrective amendment which (i) amends, replaces or substitutes any exhibit to this Declaration to correct typographical or engineering errors, (ii) includes any exhibit that was inadvertently omitted from this Declaration at the time of recording, (iii) corrects any typographical errors in this Declaration, or (iv) changes any exhibit to this Declaration to conform to as-built conditions.
10.1.3 Restatement
: After an amendment is duly approved in accordance with the preceding requirements, the Board may prepare a restatement of the Declaration and record the restatement of the Declaration which restates the entire text of the original document, with these exceptions: (a) changes incorporating all amendments approved by the Owners; (b) changes made to rearrange or delete the text for consis tency with the approved amendments; and (c) changes made to delete material no longer legally effective or legally required. Upon recordation of the restatement, the restatement shall supersede t he Declaration and all prior amendments in their entirety, without, however, affecting the priority of the Declaration in the chain of title to all properties that are subject to the Declaration, as established by the Declaration’s initial date of recordation.
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10.1.4 Recordation : Any amendment to this Declaration shall be effective upon the recordation in the Official Records of the County of either (a) a restatement approved by the Board as provided above which includes a statement ex ecuted by the President and Secretary of the Association which certifies that the required percentage of Members has approved all amendments made by the restatement and that the form of the restatement was duly approved by a resolution of the Board, or (b) an amending instrument wh ich sets forth the terms of the amendment and includes a statement executed by the President and Secretary of the Association which certifies that the required percentage of Members has approved all amendments made by the amending instrument.
10.2 ENFORCEMENT
:
10.2.1 Rights to Enforce : Subject to the provisions of Section 10.3 (Disputes with Declarant) and Section 10.4 (Mandatory Binding Arbitration), Declarant, the Association and/or any Owner shall have the power to enforce the prov isions of the Project Documents in any manner provided by law or in equity and in any manner provided in this Declaration. In addition to instituting appropriate legal action, the Association may levy a fine against an Owner in a standard amount to be determined by the Board from time to time. No determination of whether a violation has occurred may be made until Notice and Hearing has been provided to the Owner pursuant to the Bylaws. If legal action is instituted by the Association, any judgment rendered shall include all appropriate Additional Charges. Notwithstanding anything to the contrary contained in this Declaration, the Association has no power to cause a forfeiture or abridgement of an Owner’s right to the full use and enjoyment of the Owner’s Lot and Residence, including access thereto, due to the Owner’s failure to comply with the provisions of the Project Documents unless the loss or forfeiture is the result of an order of a court or an order pursuant to a final and binding arbitration decision. The provisions of this Declaration are equitable servitudes, enforceable by any Owner, Declarant or the Association against the Association, Declarant or any other Owner or resident in the Project. Except as otherwise provided, Declarant, the Association or any Owner(s) has the right to enforce, in any manner permitted by law or in equity, any and all of the provisions of the Project Documents, including any decision made by the Association, upon the Owners, Declarant, the Association or upon any property in the Project. City is hereby expressly named as a third party beneficiary pursuant to California Civil Code Section 1559 with the right, but not the obligation, to enforce any or all of the provisions of this Declaration.
10.2.2 Request to Enforce
: If any Owner believes that the Association should take action to enforce any claimed violation of this Declaration, the Owner shall notify the Board in writing of the claimed violation and the Owner’s request that the Association take steps to enforce the provision which the Owner claims has been violated. Upon receipt of a request, the Board shall review the matter and shall determine what enforcement action, if any, is appropriate. Neither the Board nor the Association (including its Directors and officers) shall have any obligation to enforce the provision which the Owner claims has been violated if the Board decides not to take any enforcement action.
10.2.3 Violation of Law
: The Association may treat any Owner’s violation of any state, municipal or local law, ordinance or regulation in the same manner as a violation of the Project Documents by making such violation subject to any or all of the enforcement procedures set forth in this Declaration, as long as the Association complies with the Notice and Hearing requirements.
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10.2.4 Remedies Cumulative : Each remedy provided in this Declaration is cumulative and not exclusive.
10.2.5 No Waiver : The failure to enforce the provisions of any covenant, condition or restriction contained in this Declaration will not constitute a waiver of any right to enforce any such provisions or any other provisions of this Declaration.
10.3 DISPUTES WITH DECLARANT
:
10.3.1 Definitions : For the purposes of this Section 10.3 and Section 10.4 (Mandatory Binding Arbitration), the following terms shall have the meanings specified in this Subsection 10.3.1.
(a) Association Warranty
: “ Association Warranty” shall mean any limited
warranty provided to the Association by Declarant which is applicable to the Common Area. (b) Claim Process : “ Claim Process ” shall mean those non-adversarial procedures set forth in Chapter 4 of Title 7.
(c) Declarant : “ Declarant” only includes the Declarant named in the first sentence of Section 2.18 (Declarant) and shall not include any person or entity who becomes a “Declarant” as defined in that Section unless otherwise provided in the written document which assigns Declarant rights to that person or entity.
(d) Declarant Parties
: “ Declarant Parties ” shall mean Declarant and its
partners, members or other principals, and their respective officers, agents, employees, affiliated parent and subsidiary companies, successors and assigns, design centers, subcontractors, design professionals, engineers, inspectors, and material suppliers who provided labor, services or materials to any portion of the Project. Declarant has the sole and absolute right, in its discretion, to join any person or entity who is not a party to the Proceedings if the presence of such person or entity is required or is necessary for complete relief to be accorded in the Proceedings or if the interest or responsibility of such person or entity in the Dispute is not insubstantial. The parties shall cooperate in good faith and shall diligently perform such acts as may be necessary to ensure that all necessary and appropriate parties are included in the Proceedings. (e) Dispute
: “Dispute” shall mean any claim, issue or controversy that arises from or is related in any way to (i) the Project, (ii) a Lot or Residence, (iii) the Common Area, (iv) the relationship between the Association and Declarant, or (v) the relationship between any Owner or Owners and Declarant, whether contractual, statutory or in tort, including without limitation, claims, issues or controversies that arise from or are related to the purchase, sale, condition, design, construction or materials used in construction of any portion of the Project, any portion of the Common Area, any portion of a Lot or Residence, the agreement between Declarant and an Owner to purchase a Lot or Residence or any related agreement, any agreement between Declarant and the Association, any Homebuyer Warranty, any Association Warranty, any disclosures provided to an Owner by Declarant, or any alleged deficiencies in the construction, design, specifications, surveying, planning, supervision, testing, or observation of construction related to an Owner’s Lot or Residence or any portion of the Common Area, including without limitation the following: (a) any Title 7 Claim; (b) any disagreement as to whether a Title 7 Claim has been properly repaired; (c) any disagreement as to the value of repairing damages which are the subject of a Title 7 Claim; (d) the cost of repairing damage caused by the repair efforts, the cost 43 09/28/23
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to remove or replace an improper repair, and any alleged relocation expenses, storage expenses, lost business income, investigation costs and all other fees and costs recoverable by contract or statute as a result of a Title 7 Claim; and (e) any disagreement concerning the timeliness of Declarant’s performance or the Association’s or an Owner’s notification under the Homebuyer Warranty, the Association Warranty or the Claim Process. (f) Homebuyer Warranty
: “ Homebuyer Warranty” shall mean any limited
warranty provided to an Owner by Declarant.
(g) Title 7 Claim : “Title 7 Claim” shall mean any claim, issue or controversy that arises from or is related in any way to any alleged violation of the standards set forth in California Civil Code Sections 895 through 897, inclusive.
10.3.2 Association
: Before the Association initiates any legal proceeding with any of the Declarant Parties, a determination must be made as to whether (a) the subject matter of the Dispute is a matter governed by California Civil Code Section 6000 or a similar statute which is then in force and effect which establishes a dispute resolution procedure which governs the subject matter of the Dispute (collectively “ 6000 Procedure”), or (b) the subject matter of the Dispute involves a Title 7 Claim.
(a) 6000 Procedure
: If a 6000 Procedure is applicable, the Association shall serve notices, attempt to resolve the Dispute, meet and confer, and otherwise comply with the dispute resolution process and procedures established by the 6000 Procedure. (b) Title 7 Claim
: If the subject matter of the Dispute involves a Title 7 Claim and is not resolved to the satisfaction of the Association, the Association shall file a written notice of claim in accordance with the provisions of California Civil Code Section 910 with Builder’s Agent for Notice at the address provided in accordance with California Civil Code Section 912. The written notice of claim must (i) provide the Owner’s name, address and telephone number (or the information necessary to use an alternative method of contact such as facsimile or e-mail) and (ii) describe the Title 7 Claim in sufficient detail to enable the Declarant Parties to determine the location, nature and extent of the Title 7 Claim and what area or components of the Project are involved.
(c) Civil Code Section 5900
: This Paragraph (c) does not apply to any
Dispute that is subject to the provisions of Paragraphs 10.3.2(a) or 10.3.2(b) . Any Dispute between the Association and a Member which is described in California Civil Code Section 5900(a) shall be addressed in accordance with the provisions of California Civil Code Section 5915(b) and (c). If the Dispute is not resolved in accordance with the procedures set forth in Section 5915(b) and (c), then the Dispute shall be addressed in accordance with the provisions of California Civil Code Section 5930. If an Owner fails to comply with the alternative dispute resolution requirements of California Civil Code Section 5930, the Owner may lose the Owner’s rights to sue the Association or another Owner to enforce the Project Documents or applicable law. If at any point it appears that the Dispute arises from or is in any way related to a 6000 Procedure or a Title 7 Claim, then such Dispute shall then be resolved in accordance with the procedures described in Paragraph 10.3.2(a) or Paragraph 10.3.2(b) as applicable, and not in accordance with the provisions of this Paragraph
10.3.2(c).
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10.3.3 Owners : Before an Owner initiates any legal proceeding with any Declarant Parties, a determination must be made as to whether the subject matter of the Dispute involves a Title 7 Claim.
(a) Title 7 Claim
: If a Dispute involves a Title 7 Claim and is not resolved to the satisfaction of the Owner, the Owner shall file a written notice of claim in accordance with the provisions of California Civil Code Section 910 with Builder’s Agent for Notice at the address provided in accordance with California Civil Code Section 912. The written notice of claim must (i) provide the Owner’s name, address and telephone number (or the information necessary to use an alternative method of contact such as facsimile or e-mail) and (ii) describe the Title 7 Claim in sufficient detail to enable the Declarant Parties to determine the location, nature and extent of the Title 7 Claim and what area or components of the Lot or Residence are involved. (b) Other Claim
: If a Dispute does not involve a Title 7 Claim (“Other Claim”) and is not resolved to the satisfaction of the Owner, the Owner shall file a written notice of Other Claim with Builder’s Agent for Notice at the address provided in accordance with California Civil Code Section 912. The written notice of Other Claim must (i) provide the Owner’s name, address and telephone number (or the information necessary to use an alternative method of contact such as facsimile or e-mail), (ii) describe the Other Claim in sufficient detail to enable the Declarant Parties to determine the location, nature and extent of the Other Claim, and (iii) include a request for mediation. The applicable Declarant Parties and Owner shall, in good faith, attempt to resolve the Other Claim by mediation in accordance with this Paragraph (b). The mediation shall be conducted by a single mediator employed by Judi cial Arbitration and Mediation Services, Inc. (“JAMS”) and in accordance with its established rules. The mediation shall be held in the County or such other place as is mutually acceptable to the parties. The Declarant Parties shall have the right to include other persons or entities, including insurance carrier representatives in the mediation proceedings. The mediation shall be conducted in accordance with the following procedures:
(i) The Declarant Parties shall have the right to select the mediator by notifying Owner in writing within ten (10) business days following the date of service of the written notice of Other Claim. If the Declarant Parties select the mediator, the Declarant Parties shall pay any filing fees required by JAMS and the first four (4) hours of the mediator’s fees. At Owner’s sole option, Owner may agree to share the filing fees required by JAMS and the fees of the mediator equally with Declarant Parties. If Owner so agrees, then Owner and Declarant Parties shall jointly select the mediator. If the parties cannot agree on a mediator, JAMS shall select the mediator. No person with any financial or personal interest in the mediation’s result shall serve as a mediator, except by the written consent of the parties. Prior to accepting any appointment, the prospective mediator shall disclose any circumstances likely to create a presumption of bias or to prevent a prompt commencement of the mediation process.
(ii) The expenses or fees of any wit nesses called by a party shall be borne solely by that party. The remainder of the total fees and costs incurred by JAMS including fees of experts retained by JAMS, if any, and expenses or fees of the mediator shall be shared equally by the parties. JAMS shall contact the other party or parties to pay any fees required of that party or parties.
(iii) If either party refuses to participate in the mediation, then the other party may initiate arbitration proceedings as provided in Section 10.4 (Mandatory Binding Arbitration). 45 09/28/23
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(iv) The hearing(s) shall be commenced as quickly as reasonably practical in the discretion and judgment of the mediator. The parties shall cooperate in good faith with each other and with the mediator and shall provide all documents reasonably required by the mediator to be provided. Without mutual agreement of the Owner and Declarant Parties, the mediation shall not exceed four (4) hours.
(v) No party shall be entitled to an award of its attorneys’ fees. Nothing herein shall be construed to modify or abrogate any duty to defend and/or indemnify another party pursuant to the terms of a contract between any such parties. The mediator shall issue his or her written determination within ten (10) business days after the close of the mediation hearing(s). (vi) The entire mediation proceeding shall be kept in the strictest confidence and documentary or demonstrative evidence or testimony introduced or revealed to the mediator or other party during the mediation shall be inadmissible in any subsequent proceeding including litigation, arbitration and judicial reference. The provisions of California Evidence Code Section 1115 et seq. shall be applicable to the mediation.
(vii) If either Owner or Declarant Parties does not agree with the mediator’s rulings, either party may initiate arbitration proceedings as provided in Section 10.4 (Mandatory Binding Arbitration).
10.4 MANDATORY BINDING ARBITRATION
: Before the Association or any Owner
institutes arbitration proceedings as provided in this Section 10.4 (“Proceedings”) involving a Title 7 Claim, the Association or Owner must first commence the Claim Process and proceed, in good faith, to resolve the claim using the Claim Process. Before the Association or any Owner institutes Proceedings with Declarant which do not involve a Title 7 Claim, or before Declarant institutes Proceedings with the Association or an Owner which do not involve a Title 7 Claim, that party shall, in good faith, attempt to resolve the Other Claim by mediation in accordance with the mediation procedures set forth in Paragraph 10.3.3(b) (Other Claim). The mandatory arbitration procedures below shall apply to all post-closing Disputes between Declarant and an Owner and all Disputes between Declarant and Association. In order to effectuate the obligation to resolve all Disputes by binding arbitration, Declarant, Association or Owner may petition the Superior Court of the County to order that the Disputes be resolved by arbitration pursuant to the agreements set forth in this Section 10.4 and the court shall order Declarant, Association and Owner to arbitrate the Disputes and all controversies related to the Disputes even if Declarant, the Association or Owner join their claims with other claimants utilizing different dispute resolution procedures.
10.4.1 Federal Arbitration Act
: If negotiations, mediation or other non-binding
dispute resolution procedures, including the Claim Process, fail to resolve any Dispute between the Association and Declarant or any Owner and Declarant, then the Dispute shall be resolved by neutral, binding arbitration governed by the Federal Arbitration Act (9 U.S.C. §§1-16) (“ Federal Act”) and not by any court action except as provided for judicial review of arbitration proceedings under the Federal Act. The construction of the Lots, Residences and other portions of the Project involved interstate commerce and therefore the arbitration procedures specified in this Section 10.4 are to be interpreted and enforced as authorized by the Federal Act, which is designed to encourage use of alternative methods of dispute resolution that avoid costly and potentially lengthy court proceedings. The Lots, Residences and other portions of the Project were constructed with materials and products manufactured throughout the United States which have been shipped to the Project for installation and involved communications by interstate mail and telephone with out of state manufacturers, design professionals, contractors and their employees. The shipment of such 46 09/28/23
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materials and products across state lines cause the products and materials to enter into the stream of interstate commerce and become subject to the Interstate Commerce Clause (Article I, Section VIII of the United States Constitution) and ensuing federal laws. Interpretation and application of the procedures set forth in this Section 10.4 shall conform to any applicable Federal court rules and decisions interpreting and applying the Federal Act. The Proceedings shall be conducted pursuant to the Federal Act and, to the extent not inconsistent, the procedures set forth in this Section 10.4.
In addition, except as set forth herein, and to the extent it is not inconsistent with the Federal Act, the arbitration shall be conducted pursuant to Title 9 of the California Code of Civil Procedure (Section 1280 et seq.); provided, however, Code of Civil Procedure Section 1281.2(c) shall not be applicable to permit the court to delay or refuse to order arbitration. References to California procedural law are for guidance only and shall not be construed as a waiver of any rights or duties of the parties under the Federal Act or the right of the parties to have the procedures set forth herein interpreted and enforced under the Federal Act. If any party seeks review by a court of the enforceability of any of the procedures set forth or referenced herein (notwithstanding the provisions herein making that issue one to be resolved by the arbitrator), the exclusive jurisdiction and venue for any such review shall be the Superior Court for the County.
10.4.2 Participation by Other Parties
: Declarant has the sole and absolute right,
in its discretion, to join any person or entity who is not a party to the Proceedings if the presence of such person or entity is required or is necessary for complete relief to be accorded in the Proceedings or if the interest or responsibility of such person or entity in the Dispute is not insubstantial. The parties shall cooperate in good faith and shall diligently perform such acts as may be necessary to ensure that all necessa ry and appropriate parties are included in the Proceedings.
10.4.3 Arbitrator
: The Proceedings shall be conducted by one (1) qualified arbitrator employed by Judicial Arbitration and Mediation Services, Inc. (“ Arbitrator”) pursuant to its rules (“Arbiter Rules”). The term “qualified” shall mean a retired judge who has experience with the laws governing residential real estate development and construction or an attorney who has actively practiced law in California for at least fifteen (15) years and who has experience with the laws governing residential real estate development and construction. Should Arbitrator cease to exist as such, then all references to Arbitrator shall be deemed to refer to its successor or, if there is no successor, to the American Arbitration Association, in which case its commercial arbitration rules shall be used.
10.4.4 Statutes of Limitation
: Except for procedural issues, and to the extent not
inconsistent with the Federal Act, the Proceedings, the ultimate decisions of the Arbitrator, and the Arbitrator shall be subject to and bound by existing California case and statutory law including, but not limited to, applicable statutes of limitation established in Title 7.
10.4.5 Motions and Remedies
: The Arbitrator shall have the power to hear and
dispose of motions, including motions relating to provisional remedies, demurrers, motions to dismiss, motions for judgment on the pleadings and summary judgment and/or adjudication motions, in the same manner as a trial court judge. In addition, the Arbitrator shall have the power to summarily adjudicate issues of fact or law, including the availability of remedies, even if the issue adjudicated could dispose of an entire cause of action or defense. The Arbitrator shall have the power to grant provisional remedies including preliminary injunctive relief. Prior to the selection of the Arbitrator, any party shall have the right to petition the Superior Court of the County for any necessary provisional remedies. However, af ter obtaining any provisional remedies (pending selection of the Arbitrator) the entire matter shall be referred to the Arbitrator for all purposes and 47 09/28/23
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the Superior Court shall have no further jurisdiction to monitor or enforce the provisional remedies or to make further determinations or awards or to issue additional provisional remedies. The Arbitrator shall have the sole power to enforce, extend, modify or vacate any such provisional remedies.
10.4.6 Discovery
: The parties shall be entitled to limited discovery consisting of:
(i) witness lists; (ii) expert witness designations; (iii) expert witness reports; (iv) exhibits; (v) reports of testing or inspections, including but not limited to, destructive or invasive testing; (vi) arbitration briefs; and (vii) the deposition, under oath, of any designated experts and two (2) other depositions of their choosing without obtaining the consent of the Arbitrator. All other discovery shall be permitted by the Arbitrator at the Arbitrator’s discretion upon a showing of good cause or based on the agreement of the parties. The Arbitrator shall oversee discovery and may enforce all discovery orders in the same manner as any trial court judge.
10.4.7 Full Disclosure
: Each party shall make, in good faith, a full disclosure of all issues and evidence to each other party prior to the hearing. Any evidence or information that the Arbitrator determines was unreasonably withheld shall be inadmissible by the party who withheld it. Except as provided in Subsection 10.4.6 (Discovery) and in the preceding sentence, no party shall be entitled to bring any motion to exclude or limit the facts or evidence to be submitted to the Arbitrator. The initiating party shall be the first to disclose all of the following, in writing, to each other party and to the Arbitrator: (i) an outline of the issues and its position on each such issue; (ii) a list of all witnesses the party intends to call; and (iii) copies of all written reports and other documentary evidence, whether written or not or contributed to by its retained experts (collectively “Outline”). The initiating party shall submit its Outline to each other party and the Arbitrator within thirty (30) days of the final selection of the Arbitrator. Each responding party shall submit its written response as directed by the Arbitrator. If the Dispute involves a Title 7 Claim, then the Association or the Owner, as the case may be, shall be the first party to submit its written Outline, list of witnesses, and reports/documents and shall include a detailed description of the nature and scope of the alleged violation(s), its proposal for repair or restoration, all repairs made to date and an estimate of the cost of repair/restoration together with the calculations used to derive the estimate.
10.4.8 Title 7 Claim and Measure of Damages
: If the Dispute involves a Title 7
Claim, the Arbitrator shall determine whether a violation exists and whether Declarant Parties are responsible for the violation. If the Arbitrator finds that Declarant Parties are responsible for a Title 7 Claim, the Arbitrator shall determine the scope of any repair and the reasonable value of repairing the nonconformity, based on evidence presented to him by the parties and their experts. The reasonable value of repairing any nonconformity shall be limited to the lesser of (i) the repair costs, or (ii) the diminution in current value of the real property caused by the nonconformity, subject to the personal use exception as developed under common law. For all Title 7 Claims, the Association or the Owner, as the case may be, is only entitled to damages for the reasonable value of repairing the nonconformity, the reasonable cost of repairing any damages caused by the repair efforts, the reasonable cost of repairing and rectifying any damages resulting from the failure of the Improvement to meet the applicable standards, the reasonable cost of removing and replacing any improper repair by Declarant, reasonable relocation and storage expenses, an Owner’s lost business income if the Owner’s Residence was used as a principal place of business licensed to be operated within the Residence, reasonable and necessary in vestigative costs for each established violation, and all other costs or fees recoverable by contract or statute. If any of the damages described above are awarded to the Association or an Owner in any other cause of action not covered by this Section 10.4, the damages awarded pursuant to this Subsection 10.4.8 shall be reduced by the amounts recovered in such other causes of action. Declarant Parties shall not 48 09/28/23
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be responsible for, and shall be excused from, any obligation, damage, loss or liability to the extent that Declarant Parties can demonstrate any of the affirmative defenses set forth in California Civil Code Section 945.5.
10.4.9 Proceedings
: The Proceedings shall be held in the County. The
Proceedings shall be conducted as promptly as possible after giving due consideration to the complexity of the issues, the number of parties and necessary discovery and other relevant matters.
The Proceedings shall be conducted as informally as possible. California Evidence Code Section 1152 et seq. shall apply for the purpose of excluding offers, compromises, and settlement proposals from evidence, unless there is agreement by all parties as to admissibility. The Arbitrator shall be the sole judge of the admissibility of and t he probative value of all evidence offered and is authorized to provide all legally recognized remedies whether in law or equity, except as otherwise limited in this Section 10.4. Attorneys are not required and either party may elect to be represented by someone other than a licensed attorney. The cost of an interpreter shall be borne by the party requiring the services of the interpreter in order to be understood by the Arbitrator and the expenses of witnesses shall be borne by the party producing such witnesses. A stenographic record of the Proceedings shall be made which shall remain confidential except as may be necessary for post-hearing motions and appeals. The cost of the record shall be borne one-half (½) by the Association or Owner, as the case may be, and one-half (½) by Declarant Parties, regardless of the outcome. Should any party refuse or fail to pay its pro-rata share, the remaining parties may pay such share, and the party or parties which pay such extra share shall be awarded such extra costs by the Arbitrator in the Arbitrator’s decision.
10.4.10 Decision
: The decision of the Arbitrator shall be binding on the parties and may be entered as a judgment in any court of the State of California that has jurisdiction and venue.
The Arbitrator shall (i) cause a complete record of all Proceedings to be prepared similar to those kept in the Superior Court, (ii) try all issues of both fact and law, and (iii) issue a written statement of decision consistent with that described in California Code of Civil Procedure Section 643 which shall specify the facts and law relied upon in reaching the Arbitrator’s decision within twenty (20) days after the close of testimony.
10.4.11 Fees and Costs
: Declarant shall advance any fee required by Arbitrator to initiate the Proceedings. The total cost of the Proceedings, including the advanced initiation fees and other fees of Arbitrator and any related costs and fees incurred by Arbitrator (such as experts and consultants retained by it) shall be borne one-half (½) by the Association or Owner, as the case may be, and one-half (½) by Declarant Parties, regardless of the outcome. The Arbitrator shall not award attorneys’ fees to any party and the parties shall each be solely responsible for their own attorneys’ fees. Nothing herein shall be construed to modify or abrogate any duty to defend and/or indemnify a third party pursuant to the terms of a contract between any such parties.
10.4.12 JURY, DISCOVERY AND APPEAL NOT AVAILABLE: THE OBLIGATION ESTABLISHED BY THIS SECTION 10.4 TO SUBMIT DISPUTES TO NEUTRAL ARBITRATION
ELIMINATES ALL RIGHTS WHICH A PARTY MIGHT POSSESS TO HAVE A DISPUTE LITIGATED IN A COURT OR JURY TRIAL. NO PARTY SHALL HAVE ANY JUDICIAL RIGHTS
TO DISCOVERY OR APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS SECTION 10.4. IF DECLARANT, THE ASSOCIATION OR ANY OWNER REFUSE TO
SUBMIT TO ARBITRATION THEY MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
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ARTICLE XI
ARCHITECTURAL AND LANDSCAPING CONTROL
11.1 APPLICABILITY :
11.1.1 Generally : Except as otherwise provided in this Declaration, proposals for Alterations (which includes all landscaping) are subject to the provisions of this Article and may not be made until approved in accordance with the provisions of this Article.
11.1.2 Exceptions
: The provisions of this Declaration requiring architectural approvals do not apply to repainting or refinishing any Improvement in the same color, hue, intensity, tone, and shade or repairing or replacing any Improvement with the same materials.
Except as provided in Subsection 11.6.3 (Additional Requirements for Approval of Landscape/Irrigation), the provisions of this Declaration requiring architectural approvals do not include planting or removing landscaping within enclosed portions of Lots. The Architectural Standards may establish additional exceptions from time to time.
11.1.3 Declarant Exemption
: The provisions of this Declaration requiring
architectural approvals do not apply to the original construction of any Improvements on a Lot by Declarant, its agents, contractors or employees.
11.1.4 Variances : The Board may authorize variances from compliance with any of the architectural provisions of this Declaration if the Board determines that topography, natural obstructions, aesthetics or other considerations are unique and justify the variance. Such variances shall be evidenced in writing and must be signed by at least two (2) Directors certifying that the variance was approved by the Board, and shall become effective upon execution. If such variances are granted, no violation of any covenant, condition or restriction contained in this Declaration shall be deemed to have occurred with respect to the matter for which the variance was granted. The granting of a variance shall not create any obligation to grant additional variances even if the situations appear similar or identical, or operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular Alteration and particular provision hereof covered by the variance, nor shall it affect in any way an Owner’s obligation to comply with Subsection 11.1.5 (Relationship to Governmental Approvals).
11.1.5 Relationship to Governmental Approvals
: Proposals for Alterations may
also be subject to review and approval by st ate or local governmental entities or agencies.
Satisfying the provisions of this Declaration does not automatically satisfy any requirement for governmental approval, permitting or inspection, including the provisions of Subsection 11.6.3 (Additional Requirements for Approval of Landscape/Irrigation). All approvals, permits and inspections which are required under local, state or federal law for any proposed Alteration are the responsibility of the Owner and must be obtained by the Owner in addition to the approvals required by this Declaration.
11.2 RESERVATION TO DECLARANT
: Notwithstanding the power of the Board to appoint
committees, Declarant hereby reserves to itself the right to appoint an Architectural Committee in accordance with the provisions of this Article.
11.3 MEMBERS
: The Architectural Committee (“ Committee”) shall initially consist of a chairman and two (2) additional members. Persons appointed to the Committee by the Board shall 50 09/28/23
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be Members of the Association. Persons appointed to the Committee by Declarant need not be Members of the Association. All members will serve until the expiration of the term for which they were appointed, if specified by the Board, or until they resign or are replaced.
11.3.1 Declarant’s Right to Appoint : Declarant may appoint all of the original members of the Committee and all replacements until the first anniversary of the issuance of the Public Report for the first Phase of the Project. After the date which is one (1) year from the date of issuance of the Public Report for the first Phase of the Project, Declarant may appoint all but one (1) member of the Committee. Declarant’s right to appoint Committee members shall terminate when title to ninety percent (90%) of the total of all Lots in the Project and all Lots proposed for the Annexable Property have been conveyed or the fifth (5th) anniversary of the issuance of the Public Report for the first Phase of the Project, whichever first occurs.
11.3.2 Board’s Initial Right to Appoint
: On the first anniversary of the date of
issuance of the Public Report for the first Phase of the Project, the Board shall have the power to appoint one member of the Committee. A Declarant appointed member must resign if there is then no vacant Committee seat.
11.3.3 Vacancies
: The Board may appoint a replacement for any member of the Committee originally appointed by the Board who resigns or otherwise fails to act. Declarant may appoint a replacement for any member of the Committee originally appointed by Declarant who resigns or otherwise fails to act, unless such member resigns in order to enable the Board to appoint a member as provided in Subsection 11.3.2 (Board’s Initial Right to Appoint). If Declarant fails to appoint a replacement it is authorized to appoint within fifteen (15) days after receiving notice of the vacancy, the Board shall appoint the replacement.
11.3.4 Rights of Board
: When Declarant’s right to appoint members of the
Committee terminates:
(a) The Board has the right to appoint, remove and replace all of the members of the Committee, as the Board determines in its discretion; and (b) The Board may increase the number of Committee members or decide to dissolve the Committee and undertake the Committee’ s responsibilities. If the Board decides to dissolve the Committee, it may adopt a resolution and appoint a new Committee at any time in the future.
11.4 DUTIES AND POWERS
:
11.4.1 Duties : The Committee shall review and approve, conditionally approve, or deny all plans, submittals, applications and requests made or tendered to it by Owners or their agents, pursuant to the provisions of this Declaration. In connection therewith, the Committee may investigate and consider the architecture, design, layout, landscaping, energy conservation measures, water conservation measures, fence or wall detail, anticipated increase in maintenance or repair costs to be incurred by the Association, and any other features or impacts of the proposed Improvements.
11.4.2 Powers
: The Committee may adopt procedures for the transaction of business, scheduling of meetings, conduct of meetings and related matters. The Committee may 51 09/28/23
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also adopt criteria, consistent with the purpose and intent of this Declaration to be used in making its determination to approve, conditionally approve or deny any matter submitted to it for decision.
11.4.3 Consultants : With the consent of the Board, the Committee may hire and the Association shall pay consulting architects, landscape architects, urban designers, engineers, inspectors, and/or attorneys in order to advise and assist the Committee in performing its duties.
11.5 APPLICATION FOR APPROVAL OF IMPROVEMENTS
: Except as provided in
Subsection 11.1.2 (Exceptions) and Subsection 11.1.3 (Declarant Exemption), any Owner who wants to perform any Alteration for which approval is required shall notify the Committee in writing of the nature of the proposed work and shall furnish such information and complete such applications as may be required by the Architectural Standards or reasonably requested by the Committee.
11.6 BASIS FOR APPROVAL OF IMPROVEMENTS
:
11.6.1 Generally : As conditions precedent to approval of any matter submitted to it, the Committee must ordinarily be able to find that (i) the plans and specifications conform to this Declaration and to the Architectural Standards in effect at the time the proposal was submitted and (ii) the proposed Alteration will be aesthetically c onsistent with the other Improvements in the Project as to harmony of exterior design, landsc aping, color schemes, exterior finishes, visibility with respect to existing structures and environment, and placement of structures with respect to topography and finished grade elevation. The Association may not disapprove an application for approval based on a provision of the Project Documents that has been superseded by a law or regulation that is applicable to the Project. The Committee may review an application for approval with other Owners, but the Committee shall have no obligation to do so.
11.6.2 Additional Requirements for Approval of Electric Vehicle Charging Stations: Notwithstanding Subsection 11.6.1 (Generally), to the extent California Civil Code Section 4745(f) requires the Committee to approve an application to install an Electric Vehicle Charging Station, the Committee must approve the application; provided, however, (i) the provisions of California Civil Code Section 4745(f) are satisfied and (ii) the Owner agrees in writing to do all of the following:
(a) Comply with all Architectural Standards for the installation of Electric Vehicle Charging Stations, provided that they are consistent with California Civil Code Section 4745(e); (b) Hire a licensed contractor to construct and install the Electric Vehicle Charging Station and provide proof of such to the Committee; (c) Within fourteen (14) days of approval of the application, provide the Committee with a certificate of insurance that (i) complies with the provisions of Subsection 7.6.5 (Electric Vehicle Charging Stations) and (ii) names the Association as an additional insured; (d) Pay all EVCS Costs allocable to that Owner in accordance with Section 5.7 (Electric Vehicle Charging Stations).
11.6.3 Additional Requirements for Approval of Landscape/Irrigation : An
applicant for installation of new landscape materials or a new irrigation system or the replacement of existing landscape materials or an existing irrigation system that is subject to review and 52 09/28/23
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approval of the “local agency” (city or county) or “local water purveyor” (public agency or private company providing retail water service) shall first obtain any required approval of landscape and/or irrigation plans by the applicable “local agency” or “local water purveyor” before submission of an application to the Committee. The current “threshold amount” that requires review and approval of a local agency or local water purveyor is 2500 square feet of new installation or replacement installation of either landscape or an irrigation system to cover that “threshold amount” of landscape. If an application for landscape or irrigat ion provides for landscape or irrigation that meets or exceeds the “threshold amount” the applicant shall include proof, satisfactory to the Committee, that the “local agency” or “local water purveyor” has either approved the applicant’s plans or that the proposed installation does not require review by a local agency or local water purveyor.
11.6.4 Additional Requirements for Approval of Solar Collectors : The
installation of a Solar Collector shall require the prior approval of the Committee. Reasonable restrictions on the installation of Solar Collectors may be applied, so long as the restrictions do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance. Solar Collectors shall be appropriately certified and shall comply with the requirements for such systems as set forth in the Solar Rights Act. The criteria for approval of the installation of a Solar Collector may implement relevant provisions of the Solar Rights Act and the Solar Shade Control Act and the provisions of this Subsection 11.6.4, but shall not otherwise be any more restrictive or subject to more scrut iny than those for any other Improvement. Any restrictions, guidelines, Architectural Standards or Operating Rules applied to Solar Collectors must comply with the Solar Rights Act and the Sola r Shade Control Act. The application for approval shall be processed and approved by the Committee in the same manner as an application for approval of any other Alteration, and shall not be willfully avoided or delayed. The Architectural Committee shall have no obligation to determine compliance with the Solar Rights Act or Solar Shade Control Act or to consider the impact of landscape, present or future, on Lots adjacent to a Solar Collector and shall have no liability to any person for not considering any potential landscape impacts or compliance with the Solar Shade Control Act or compliance with the Solar Rights Act.
Notwithstanding the preceding sentence, until all Annexable Property has been annexed to the Project and all Residences in the Project have been conveyed to Owners other than a Declarant, the Committee shall consider Declarant’s then most current plan of development for any portion of the Project or Annexable Property that will or is likely to affect the efficiency or performance of a Solar Collector. Declarant shall have no liability to any Owner of a Solar Collector for any residential structure(s) constructed by Declarant in the Project or Annexable Property, regardless of when the residential structure(s) is constructed.
11.7 FORM OF APPROVALS, CONDITIONAL APPROVALS AND DENIALS : All
approvals, conditional approvals and denials must be in writing. Any proposal which has not been approved, conditionally approved or rejected in writing within forty-five (45) days from the date of submission will be deemed approved. Any denial of a proposal must (a) state the reasons for the decision and (b) if the decision was made by the Committee (rather than the Board), notice of the appeal rights provided in Section 11.12 (Appeal of Decision of Committee).
11.8 WORK
: Upon approval of the Committee, the Owner must diligently proceed with the commencement and completion of all work so approved. Completion of the work approved must occur within one (1) year following the approval of the work unless the Committee grants an extension. This Section shall not be interpreted to extend any other time period imposed by this Declaration. If the Owner fails to complete the work within the required time period, the Committee 53 09/28/23
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may notify the Owner in writing of the non-compliance and proceed in accordance with the provisions of Section 11.10 (Failure to Remedy the Non-Compliance).
11.9 DETERMINATION OF COMPLIANCE : Any work performed, whether or not the Owner obtained proper approvals, may be inspected and a determination of compliance made as follows:
11.9.1 Notice of Completion : Upon the completion of any work performed by an Owner for which approval was required, the Owner must give written notice of completion to the Committee.
11.9.2 Inspection
: Within sixty (60) days after the Committee’s receipt of the Owner’s notice of completion, or, if the Owner fails to give a written notice of completion to the Committee within the completion period specified in Section 11.8 (Work), a designee of the Committee may inspect the work performed and determine whether it was performed and completed in substantial compliance with the approval granted. If the Committee finds that the work was not performed or completed in substantial compliance with the approval granted or if the Committee finds that the approval required was not obtained, the Committee shall notify the Owner in writing of the non-compliance. The notice shall specify the particulars of non-compliance and require the Owner to remedy the non-compliance.
11.10 FAILURE TO REMEDY THE NON-COMPLIANCE
: If the Committee has determined
that an Owner has not constructed an Improvement consistently with the specifications of the approval granted or within the time permitted for completion, and if the Owner fails to remedy such non-compliance in accordance with the provisions of the notice of non-compliance, then after the expiration of thirty (30) days from the date of such notification, the Committee shall notify the Board, and the Board shall provide Notice and Hearing to consider the Owner’s continuing non- compliance. At the Hearing, if the Board finds that there is no valid reason for the continuing non- compliance, the Board shall determine the estimated costs of correcting it. The Board shall then require the Owner to remedy or remove the same within a period of not more than forty-five (45) days from the date of the Board’s determination. If the Owner does not comply with the Board’s ruling within such period or within any extension of such period as the Board, in its discretion, may grant, the Board may either remove the non-complying Improvement or remedy the non- compliance. The costs of such action shall be assessed against the Owner as a Reimbursement Assessment.
11.11 WAIVER
: Approval of any plans, drawings or specifications for any work proposed, or for any other matter requiring approval shall not be deemed to constitute a waiver of any right to deny approval of any similar plan, drawing, specification or matter subsequently submitted for approval.
11.12 APPEAL OF DECISION OF COMMITTEE
: This Section does not apply if the Board
has dissolved the Committee or during the period of time that a majority of the Members of the Committee have been appointed by Declarant. If the Owner who applied or who the Committee determined should have applied for approval of an Alteration on a Lot or Residence disputes the jurisdiction or powers of the Committee, the interpretation or application of an Architectural Standard or a decision of the Committee applicable to the denial or conditional approval of the Owner’s application for a proposed Alteration (collectively referred to as “Decision”), that Owner may appeal such Decision to the Board. Any request to the Board for appeal of a Decision must be written. Within twenty (20) days of receipt by the Board of an Owner’s written appeal request, the Board shall notify the Owner of the time, date and place of the Board meeting at which the 54 09/28/23
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ARTICLE XII
ANNEXATION
appeal of the Decision of the Committee will take place. The notice shall be given at least fifteen (15) days prior to the date set for the hearing and may be delivered either personally or by mail.
If delivery is made by mail, it shall be deemed to have been delivered seventy-two (72) hours after it has been deposited in the United States mail, first-class, postage prepaid, addressed to the Owner at the address given by the Owner to the Board for the purpose of service of notices or to the address of the Owner’s Lot if no other address has been provided. After the meeting has taken place, the Board shall notify the Owner of its determination. The determination of the Board shall become effective not less than five (5) days after the date of the hearing. The determination of the Board shall be final.
11.13 NO LIABILITY
: If members of the Committee have acted in good faith, neither the Committee nor any member of the Committee will be liable to the Association or to any Owner for any damage, loss or prejudice suffered or claimed due to: (a) the approval or disapproval of any plans, drawings and specifications, whether or not defective; (b) the construction or performance of any work, whether or not pursuant to approved plans, drawings, and specifications; (c) the development of any property within the Project; or (d) the execution and filing of any estoppel certificate, whether or not the facts therein are correct. Neither the Board nor Declarant shall be liable to any Owner or the Association for any decision, action or inaction of the Committee.
11.14 EVIDENCE OF APPROVAL OR DISAPPROVAL
: After a determination of compliance
is made pursuant to Section 11.9 (Determination of Compliance), the Board may issue a written Notice of Architectural Determination. The Notice of Architectural Determination must be executed by any two (2) Directors and shall certify that as of the date of the Notice either (i) the work completed complies with the provisions of this Declaration and the approval(s) issued by the Committee (“Notice of Approval”) or (ii) the work completed does not comply with the provisions of this Declaration or the approval(s) issued by the Committee (“Notice of Disapproval”). A Notice of Disapproval must also identify the particulars of the non-compliance. Any successor in interest of the Owner will be entitled to rely on a Notice of Architectural Determination with respect to the matters set forth. Each Owner must disclose to the Owner’s subsequent purchaser any Notice of Disapproval unless the Owner has a subsequently issued Notice of Approval which covers the same Alteration. The Notice of Architectural Determination will be conclusive as between the Association, the Committee, Declarant and all Owners and such persons deriving any interest through any of them. Any Owner may make a written request that the Board prepare and execute a Notice of Architectural Determination, and the Board must do so within sixty (60) days of its receipt of the request.
12.1 PROPERTY WHICH MAY BE ANNEXED
: Property may be added to the Project by
annexation only in accordance with the provisions of this Article.
12.1.1 Annexable Property : All or any portion of the Annexable Property may be added to the Project as one or more subsequent Phases without the approval of the Association or any Owner if the annexation of the Phase is in substantial conformance with a plan of phased development accepted by the Department of Real Estate of the State of California. The issuance of a Public Report for a Phase by the Department of Real Estate of the State of California shall be evidence that the annexation of that Phase was in substantial conformance with a plan of phased development.
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12.1.2 Other Property : Property other than the Annexable Property may be annexed to the Project only with the approval of two-thirds (2/3) of each class of Members.
12.2 PROCEDURE FOR ANNEXATION : In addition to any required approval by Members, a Declaration of Annexation for the property to be annexed must be recorded. A Declaration of Annexation may not annex Lots or Common Area which as of the Effective Date of that Declaration of Annexation are not shown or described on any of the following recorded documents: a final map, amended final map, parcel map, certificate of correction, lot line adjustment and/or record of survey.
The Declaration of Annexation must: (i) descr ibe the portion of the Annexable Property to be annexed; (ii) describe any Common Area within the Annexable Property to be annexed; (iii) set forth the ownership of any such Common Area; and (iv) specify that all of the covenants, conditions and restrictions of this Declaration will apply to the annexed portions of the Annexable Property in the same manner as if it were originally covered by this Declaration. The Declaration of Annexation must also provide that if and only if
at the time of the first conveyance of a Lot in a Phase Declarant has rented or leased Lots in that Phase for a period of one (1) year or more, such Declarant shall pay to the Association the following amount: an amount equal to that portion of the Regular Assessment which would have been attributable to each Lot in that Phase and which would have been allocable to reserves for replacement and deferred maintenance of Common Area Improvements had Regular Assessments in that Phase commenced at the time of the first rental or lease of a Lot in that Phase. Such amount, if any, must be paid to the Association prior to or concurrently with the first conveyance of a Lot in that Phase. The Declaration of Annexation may also (i) impose any modifications or additional covenants, conditions or restrictions on the Annexable Property that Declarant reasonably considers appropriate to include the Annexable Property in the Project or to reflect differences in materials or Improvements to be constructed on the Annexable Property, (ii) provide for a s pecified date on which Regular Assessments will commence for Lots in that Phase, provided that the date specified may not be later than the first day of the first month following the month in which the first Lot in that Phase is conveyed to an Owner, (iii) include provisions or restrictions intended to satisfy conditions imposed by the City on development or use of all or any portion of the Annexable Property, and (iv) describe additional Improvements to be Maintained by the Associati on regardless of whether the Improvements are located on property to be owned by the Association. No Declaration of Annexation may diminish the covenants, conditions or restrictions estab lished by this Declaration or discriminate between the Owners in the Project. No Declaration of Annexation may alter or change the general common plan or scheme created by this Declaration or affect the provisions hereof as covenants running with the land or as equitable servitudes.
12.3 EFFECT OF ANNEXATION
: Upon the Effective Date of a Declaration of Annexation, the Annexable Property described in that Declarati on of Annexation will constitute a part of the Project and be subject to this Declaration and the Owners of the Lots described in that Declaration of Annexation will be Members and be entitled to use all Common Area in the Project.
12.4 RESCISSION AND AMENDMENT
: Prior to the Effective Date of a Declaration of
Annexation, Declarant has the right, at its sole option, to (i) amend the Declaration of Annexation, (ii) rescind the Declaration of Annexation, (iii) add additional property to the Declaration of Annexation or (iv) remove property from the De claration of Annexation as long as all applicable requirements of Section 12.1 (Property Which May Be Annexed) and Section 12.2 (Procedure for Annexation) are satisfied. After the Effective Date of a Declaration of Annexation, the Declaration of Annexation may be changed only by complying with the provisions of Section 10.1 (Amendments).
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 BINDING : This Declaration is for the benefit of and binding upon all Owners, their respective heirs, legatees, devisees, executors, administrators, guardians, conservators, successors, purchasers, tenants, encumbrancers, donees, grantees, mortgagees, lien holders and assigns.
13.2 BONDED OBLIGATIONS
: When Common Area Improvements have not been
completed prior to the issuance of the original Public Report to which the Common Area is subject and the Association is the obligee under a bond or other arrangement (“ Bond”) to secure performance of the commitment of Declarant to complete the Improvements, the following provisions apply.
13.2.1 Improvements Complete
: If all Improvements in the planned construction
statement appended to the Bond are covered by one or more recorded notices of completion, the Board shall execute whatever documents are required by the surety to release the Bond.
13.2.2 Improvements Not Complete
: If a notice of completion has not been filed
within sixty (60) days after the completion date specified for that Improvement in the planned construction statement appended to the Bond, the Board shall consider and vote on the question of action by the Association to enforce the obligations under the Bond. If the Association has given a written extension for the completion of any Common Area Improvements, the Board shall consider and vote whether to take action if a notice of completion has not been filed within thirty (30) days after the expiration of the most recent extension.
13.2.3 Action by Members
: If the Board decides not to act or fails to initiate action to enforce bonded obligations, then upon receipt by the Board of a petition for a special meeting signed by Members entitled to cast five percent (5%) or more of the total number of votes which may be cast by the Members, the Board shall call a special meeting of the Members. If the Board has failed to initiate action, the Members shall determine whether they wish to initiate action. If the Board has decided not to initiate action, the Members shall determine whether to override the Board’s decision. The meeting shall be held not less than thirty-five (35) nor more than forty-five (45) days after receipt of the petition by the Board. At the meeting, the approval of the Members, excluding the vote of Declarant, to take action to enforce the obligations under the Bond shall be deemed to be the decision of the Association. The Board shall thereafter implement the decision by initiating and pursuing appropriate action in the name of the Association.
13.2.4 Release of Bond
: On satisfaction of Declarant’s obligation to complete the Common Area Improvements, the Association shall acknowledge in writing that it approves the release of the Bond and shall execute any other documents as may be reasonably necessary to effect the release of the Bond. The Association may not condition its approval on the satisfaction of any condition other than completion of the Common Area Improvements. If the Association breaches any of the foregoing obligations, it will be liable to Declarant for any damages incurred thereby, including reasonable attorneys’ fees. Any dispute between Declarant and the Association regarding the completion of Common Area Improvements shall be resolved in accordance with the provisions of the escrow instructions which accompany the Bond. 57 09/28/23
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13.3 CONFLICT : To the extent there are conflicts or inconsistencies between a Maintenance Manual and this Declaration, the provision which requires the highest standard of Maintenance shall prevail. In the event of any conflicts or inconsistencies between this Declaration and the Bylaws or the Operating Rules, this Declaration shall prevail.
13.4 CONSTRUCTION OF PROVISIONS
: The provisions of this Declaration are to be
liberally construed to affect its purpose of creating a uniform plan for the development and operation of a planned development pursuant to the provisions of the Davis-Stirling Common Interest Development Act, California Civil Code Section 4000 et seq.
13.5 DOCUMENTS TO BE GIVEN TO PURCHASERS
: As soon as practical before
transferring title to the Lot, the Owner shall give to the purchaser copies of all documents and statements required by California Civil Code Section 4525(a).
13.6 EXHIBITS
: All exhibits, if any, attached to this Declaration are incorporated by this reference as though fully set forth herein.
13.7 GENDER, NUMBER AND CAPTIONS : As used herein, the singular includes the plural and masculine pronouns include feminine pronouns, where appropriate. The title and captions of each paragraph hereof are not a part thereof and shall not affect the construction or interpretation of any part hereof.
13.8 REQUIRED ACTIONS OF ASSOCIATION
: The Association shall at all times take all
reasonable actions necessary for the Association to comply with the terms of this Declaration or to otherwise carry out the intent of this Declaration.
13.9 SEVERABILITY OF PROVISIONS
: The provisions hereof shall be deemed
independent and severable, and the validity or enforceability of any one provision will not affect the validity or enforceability of any other provision hereof.
13.10 SUCCESSOR STATUTES
: Any reference in the Project Documents to a statute will be deemed a reference to any amended or successor statute.
13.11 TERM OF DECLARATION: This Declaration will continue for a term of fifty (50) years from its date of recordation. Thereafter, this Declaration will be automatically extended for successive periods of ten (10) years until two-thirds (2/3) of the Owners approve a termination of this Declaration.
IN WITNESS WHEREOF, the undersigned has executed this Declaration on the day of
_________________, 202 ___.
DECLARANT: CHATTLETON PLACE PARTNERS LLC,
a California limited liability company
By:
Name:
Title:
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A Notary Public or other officer completing this certific ate 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
} ss.
On , 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 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
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EXHIBITS
A Stormwater Agreement (Section 2.62)
B Stormwater O&M Plan (Section 2.63)
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A Notary Public or other officer completing this certific ate 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
} ss.
On , 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 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
SUBORDINATION AND CONSENT
,
a
, (“Lender”)
as Beneficiary under the deed of trust (“Deed of Trust”) executed by ,
and recorded on , as , in the Official Records of the County of Contra Costa, State of California, hereby subordinates the lien of the Deed of Trust to the lien of the De claration of Covenants, Conditions and Restrictions of Chattleton Place (“ Declaration”) to which this Subordination and Consent is attached to the same extent and with the same force and effect as though the Declaration, and any proper amendments thereto, had been executed and recorded prior to the execution and recordation of the Deed of Trust.
DATED:
.
___________________________________
(Lender)
By:
(Signature)
Name:
Title: