'Pretty Good' CC&Rs
This document is an approximate copy
of the Valencia HOA CC&R's. It isn't perfect; there are
errors such as scan errors, uncorrected spellings, format
inconsistencies, and there is no table of contents - as yet. Some
of the errors are carried over from the original, which contains syntax
and spelling errors. This approximate version may be useful for
browsing and searching (use your browser's EDIT-FIND function), but
always refer to the original for interpreting the CC&R's.
Please report any errors to webadmin@valenciahoa.org.
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS
VALENCIA
DONALD L. BREN COMPANY, a California corporation, referred to below as
"Developer", is the owner of the real property in the City of San
Diego, County of San Diego, State of California, more particularly
described as follows (" Property"):
Lots Nos. 1 through 17, 58 through 67, 153 through 156, and 168 of La
Jolla Colony Unit No.1, according to Map No.1 0648, in the City of San
Diego, State of California, recorded in the Office of the County
Recorder of San Diego County on June 2,1983, as File No. 83-185346.
ARTICLE 1
PROJECT DECLARATION
Developer hereby declares that said property is held and shall be held,
conveyed, sold, hypothecated, encumbered, leased, rented, used,
occupied and improved subject to the easements, liens, and the
following covenants, conditions, restrictions and provisions, all of
which are hereby declared and agreed to run with the land and to be in
furtherance of a plan for the creation of the Project and for the
improvement and sale of said property, and are hereby established and
agreed upon for the purpose of enhancing and perfecting the value,
desirability and attractiveness of said property, and for the benefit
of all of the real property in the Project and its future Owners.
(a) All of the easements, liens, covenants, conditions, restrictions,
and provisions set forth in this Project Declaration are equitable
servitudes and shall run with the title to said real property and shall
be binding upon all parties having or acquiring any right, title, or
interest thereto, and shall be for the benefit of and be binding upon
each Owner and future Owner of any portion of the property, their
successors and assigns.
(b) Developer intends to develop the Property as an increment of the LA
JOLLA COLONY COMMUN I TY by subdividing and constructing single family
residences thereon. The Project is to be established and developed
substantially in conformance with the LA JOLLA COLONY DESIGN CRITERIA
MANUAL, set forth in the
Page 1
Community Declaration. Developer intends that the Project Association
shall be a Member of the Community Association with all rights and
obligations appertaining thereto, and that all of the covenants,
conditions, restrictions, and provisions of the Community Declarations
pertaining to Projects and Owners, as stated therein, shall be fully
applicable to the Project and Owners.
(c) Developer may add all or any part of the property described in
Exhibit "A" to the Project by Annexation, and said addi-tional property
so annexed will thereupon be developed as a part of the Project and
shall be subject to the provisions of this Project Declaration.
(d) This Project Declaration is created to benefit the Project and
Owners, to establish covenants, conditions, and restrictions regarding
the use and operation of the Project, and to provide an organization to
carry out and enforce the provisions of such covenants, conditions, and
restrictions.
ARTICLE 2
NON-PROFIT CORPORATION
Developer has deemed it desirable for the efficient preservation of the
value, desirability and attractiveness of the Project, pursuant to the
provisions of this Project Declaration, to create a non-profit
corporation to which shall be delegated and assigned the powers of
maintaining and administering the Project Common Area, and
administering and enforcing these covenants, conditions and
restrictions and collecting and disbursing funds pursuant to the
assessment and charges hereinafter created and referred to and doing
and performing such other obligations and responsibilities as are
imposed by this Project Declaration; and VALENCIA HOMEOWNERS
ASSOCIATION, a non-profit mutual benefit corporation, has been
incorporated under the laws of the State of California for the purpose
of exercising the powers and functions aforesaid. Upon the conveyance
of the first Residential Lot in the Project to an Owner, the Project
Association shall be vested with and shall assume management and
control of the Project and the Project Common A rea.
ARTICLE 3
DEFINITIONS
Unless otherwise expressly provided, the following terms shall have the
following meanings:
Page 2
3.1 "Annexation" shall mean the process by which additional real
property may be made subject to this Project Declaration and included
in the Project.
3.2 "Annexation Property" shall mean the real property more
particularly described in Exhibit "A" attached hereto and incorporated
herein by this reference.
3.3 "Community" shall mean all of the real property subject to the
Community Declaration.
3.4 "Community Architectural Control Committee" shall mean the
Committee established pursuant to the Community Declaration.
3.5 "Community Articles" shall mean the Articles of Incorporation for
the Community Association.
3.6 "Community Assessments" shall mean the assessments levied by the
Community. Association pursuant to the Community Declaration.
3.7 "Community Association" shall mean LA JOLLA COLONY COMMUNITY
ASSOCIATION, a California non-profit mutual benefit corporation or any
successor entity charged with the duties, obligations, and powers of
said Community Association.
3.8 "Community Board" shall mean the Board of Directors of the
Community Association.
3.9 "Community By-Laws" shall mean the By-Laws for the Community
Association duly adopted by the Community Board.
3.10 "Community Common Area" shall mean all real property and all
improvements thereon in which the Community Association owns an
interest for the common use and benefit of the Community Members,
Owners, their occupants and guests.
3.11 "Community Declaration" shall mean the Community Declaration of
Covenants, Conditions and Restrictions for LA JOLLA COLONY COMMUN1TY.
3.12 "Community Director" shall mean the representatives elected to the
Community Board.
3.13 "Community Documents" shall mean the Community Articles, Community
By-Laws, Community Declaration, and Community Rules.
Page 3
3.14 "Community Member" shall mean the Project Association.
3.15 "Community Rules" shall mean the rules and regulations adopted by
the Community Board for the governance of the Community.
3.16 "Design Criteria II shall mean LA JOLLA COLONY DESIGN CRITERIA
MANUAL, as set forth in the Community Declaration.
3.17 "Developer" shall mean DONALD L. BREN COMPANY, a California
corporation, its successors and assigns.
3.18 "Lender" shall mean every person, firm, corporation, government
agency, or financial institution who is the Mortgagee of a Mortgage or
beneficiary of a Deed of Trust encumbering a Residential Lot in the
Project.
3.19 "Mortgage" shall mean a First Mortgage or Deed of Trust which
encumbers anyone (1) or more Residential Lots, and shall include any
First Mortgage or Deed of Trust securing an obligation of Developer or
an Owner, and encumbering all or any part of the Property or the
Annexation Property.
3.20 "Owner" shall mean a record owner of fee simple titl~, or
long-term leasehold interest of record, to any Residential Lot,
in-cluding all structures thereon, or other parcel of property in the
Project, whether held by one (1) or more persons or entities, and shall
include Developer unless the context expressly provides otherwise. A
contract purchaser under a recorded installment land sales contract
shall be included as an Owner but those merely having an interest in
property as security for performance of an obligation shall not be
Owners.
3.21 "Project" shall mean the entire parcel of real property, divided
or to be divided into Residential Lots, including all structures
thereon and the Project Common Area, and any territory hereafter
annexed.
3.22 II Project Assessments II shall mean assessments deter-mined
pursuant to this Project Declaration.
3.23 "Project Association" shall mean the VALENCIA HOMEOWNERS
ASSOCIATION, a California non-profit mutual benefit corporation, or any
successor entity.
3.24 "Project Board" shall mean the Board of Directors of the Project
Association.
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3.25 "Project Common Area" or "Common Area" shall mean all real
property now or hereafter owned by the Project Association, or
which the Project Association is the Grantee of an easement for the.
common use and enjoyment of the Owners, excluding easements granted to
the Project Association for Purposes of maintenance of the Residential
Lots. The Project Common Area shall consist of the following types of
lots:
(a) Open Space Lot; initially consisting of Lot 168 of La Jolla Colony
Unit No.1, Map No. 10648;
(b) Street Lot; initially consisting of Lots 153 through 156 of La
Jolla Colony Unit No.1; Map No. 10648.
3.26 "Project Declaration" shall mean this Declaration of Covenants,
Conditions and Restrictions.
3.27 "Project Documents" shall mean the Project Articles, Project
By-Laws, Project Declaration, and Project Rules.
3.28 "Project Member" shall mean every person or entity who holds a
membership in the Project Association.
3.29 "Project Rules" shall mean the rules and regulations adopted by
the Project Board for the governance of the Project.
3.30 "Project Voting Rights" shall mean the number and allocation of
voting rights to Residential Lots in the Project.
3.31 "Residential Lot" shall mean any plot of land shown upon any
recorded subdivision map of the Project, except Open Space Lots and
Street Lots.
3.32 "Unit" shall mean the residential structure constructed or to be
constructed on a Residential Lot.
ARTICLE 4
PROJECT COMMON AREA
4. 1 Title to Project Common Area. Developer covenants as follows:
(a) Prior to the conveyance of the first Residential Lot in the Project
to a Class A Member, it shall grant and convey to the Project
Association, fee simple title to the Common Area. Such convey-ance
shall be free of all monetary liens and encumbrances except non-del
inquent real property taxes, easements, and covenants,
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conditions, and restrictions then of record, including those set forth
in this Project Declaration.
(b) It shall grant and convey to the Project Association upon
annexation as provided in Article 19 such additional Project Common
Area as is shown as Non-Residential Lots upon any final subdi-vision
map of the property so annexed. Such conveyances shall be free of all
monetary liens and encumbrances except non-delinquent real property
taxes, easements, and covenants, conditions, and restrictions then of
record, including this Project Declaration and any instrument of
annexation.
4.2 Use of Project Common Area. The Project Common Area shall be used
only for the following purposes:
(a) Project Common Area Open Space Lots shall be used, improved, and
maintained only for landscaping, slope control, and open space purposes.
(b) Project Common Area Street Lots shall be used, improved, and
maintained ~mly for ingress, egress, vehicular, and pedestrian access,
landscaping, and vehicular parking where authorized by the Project
Association or this Project Declaration.
(c) The installation and maintenance of such vehicle regularoty (sic;
ed: regulatory) devices as are installed by the Developer in connection
with the development of the Project, and any other regularity or
security devices which in the judgment of the Project Board are
necessary or proper for the protection or enhancement of the Project.
4.3 Property Rights in Common Area. Every Owner shall have a
non-exclusive easement for beneficial use and enjoyment in and to the
Project Common Area for the purposes set forth in Article 4.2 and said
easement shall be appurtenant to and shall pass with the title to every
Residential Lot, subject to the following provisions:
(a) The right of the Project Association to adopt and enforce
reasonable rules and regulations governing the conduct and activities
of all Owners, lessees, and guests on the Project Common Area,
including pets, vehicle parking, and vehicle speed limits.
(b) The obligations Article 14 of this Declaration. and limitations set
forth in
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ARTICLE 5
PARTITION OF PROJECT COMMON 'AREA
5.1 Right to Partition. An action may be brought by one (1) or more of
the Owner(s) for partition thereof by sale of the entire Project
Common Area, or otherwise in accordance with law, as if the Owners of
all of the Residential Lots in the Project were tenants in common in
the Project Common Area in the same proportion as their voting rights
in the Project Association; provided, however, a partition, or judicial
sale in lieu of partition, shall be made only upon the showing that:
(a) Three (3) years after damage to or destruction of the Project
Common Area which renders a material part of it unfit for its use prior
thereto, the Project common area has not been rebuilt or repaired
substantially to its state prior to its damage or destruction; or
(b) Three-fourths (3/4) or more of the Project common area has been
destroyed or substantially damaged, and Owners holding an aggregate
more than a fifty percent (50%) voting rights in the Project
Association are opposed to repair or restoration of the Project Common
Area; or
(c) The Project has been in existence in excess of fifty (50) years, it
is obsolete and uneconomic, and Owners holding in aggregate more than a
fifty percent (50%) of the voting rights in the Project Association are
opposed to repair or restoration of the Project Common Area, provided
that the consent of the San Diego City Council, if then required by law
so to do, be obtained. The component elements comprising the Project
Common Area shall not be severable nor separately transferred until the
expiration of sixty (60) years from the date of this Project
Declaration, nor shall such component elements be partitioned except
pursuant to a partition made in accordance with the foregoing
provisions of this Article. The foregoing shall not be deemed to
prevent partition of a co-tenancy in a Residential Lot.
5.2 Distribution of Partition Proceeds. In the event of sale of the
entire Project Common Area as provided in this Article, the proceeds of
sale shall be distributed to the Owners based upon the fair market
value of each Residential Lot as compared to the value of all other
Residential Lots as established by an independent appraisal conducted
by an M.A.I. appraiser selected by the Project Board.
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ARTICLE 6
COMMUNITY ASSOCIATION
6.1 Membership. The Project Association shall be the Community Member
of the Community Association.
6.2 Delegation. The Project Association shall delegate to the Project
Association President or his alternate the right to attend all
Community Association meetings and to represent the Project Association
in all matters at such meetings, and to exercise the Community voting
rights of the Project Association.
6.2.1 Voting Instructions. On all matters submitted to the vote of the
Community Members, the Project Board shall instruct the delegate or
alternate to cast the Community voting rights of the Project
Association in accordance with the manner approved by a majority of the
Project Board.
6.2.2 Elector of Community Board. The delegate or alternate shall act
as elector at elections to elect Directors for the Community Board and
shall cumulate and cast the Community voting rights of the Project
Association for such candidate as is approved by the majority of the
Project Board.
ARTICLE 7
PROJECT ASSOCIATION
7.1 Membership. Every person or entity who is an Owner of a Residential
Lot in the Project or as may be enlarged pursuant to Annexation shall
be a Member of the Project Association.
7.1.1 Classes of Membership. There shall be two (2) classes of Members
known as Class A Members and Class B Members.
Class A Members. Class A Members shall be all those persons and
entities Members entitled to membership as provided herein, other than
the Developer. Class A Members shall be entitled to one (1) vote for
each Residential Lot owned.
Class B Members. Class B Members shall be the Developer. Class B
Members shall be entitled to three (3) votes for each Residential Lot
owned.
7.1.2 Termination of Class B Membership. Class B membership for a
Residential Lot shall be converted to Class A member-ship upon
conveyance of such Residential Lot to a person or persons
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entitled to be Class A Members, and, thereafter such Class B
member-ship shall forever cease to exist. All remaining Class B
memberships sh'all be converted to Class A memberships, and,
thereafter, such Class B memberships shall forever cease to exist upon
whichever of the following first occurs:
(a) The total outstanding votes held by Class A
Members equals the total outstanding Class B Members.
(b) In case of Annexation, on the second anni-versary of the original
issuance of the most recently issued California final public report for
a phase of the Project.
(c) Not later than the fourth 'anniversary of the original issuance of
a California final public report for the first phase of the Project, or
if Annexation does not take place, on the second anniversary of the
issuance of said first phase report.
7.2 Commencement of Voting Rights. The right to cast and exercise
Project Voting Rights at any Project Association election shall not
vest as to any Residential Lot until such Residential Lot has become
subject to levy of Project Assessments.
~
7.3 Persons Entitled to Vote. There shall be one (1) person designated
as "voting owner" for each Residential Lot, who shall be designated by
the Owner by notice to the Project Association. The designation shall
be by written notice given by the Owner to the Project Association. The
designation as to any Residential Lot, shall be revocable at any time
by actual notice to the Project Association of the death or judicially
declared incompetency of the Owner, or by a written notice of the
revocation to the Project Association by the Owner. Such power of
designation and revocation may be exercised by the guardian of the
Owner's estate or by his conservator or in the case of a minor having
no guardian, by the parent entitled to his custody, or during the
administration of the Owner's estate, by his executor or administrator
if his Residential Lot is subject to administration in his estate. If
no such designation is made as to a Residential Lot,' or where a
designation has been made, the voting owner shall be the Owner. In the
event as to any Residential Lot there is more than one (1) Owner, the
power of designation and revocation, and 'the right to vote in the
absence of a current designation, must be exercised by a majority of
such Owners. In the event there are two (2) Owners and no current
designation of one (1) as voting owner has been made, the Owner
appearing at the meeting shall have the right to vote in the absence of
the other, but if both are present at the meeting, there must be
unanimity between them in order to have a vote.
7.4 Vote Required. Unless otherwise stated, the written consent or
affirmative vote of a majority of the voting power of the
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Project Association. shall be sufficient to approve any matter
submitted to a vote of the Project Members. Notwithstanding anything to
the contrary contained in the Project Documents calling for or
requiring membership approval of action to be taken by the Project
Association, except actions taken or to be taken pursuant to Article 22
of. this Project Declaration, shall require the affirmative vote or
written consent of the prescribed percentage of each class of
membership, during the period of time there are two (2) outstanding
classes of membership. If there is no longer any Class 8 membership and
the Developer holds only Class A membership, any provision of the
Project Documents, except action taken to enforce any completion bond
by the Developer and any amendments to the Project Documents, excluding
the vote of the Developer shall be read as requiring the affirmative or
written consent of the prescribed percentage of the total voting power
of the Project Association and of the prescribed percentage of the
total voting power of the Class A Members other excluding the voting
power held or controlled by the Developer.
7.5 Transfer of Membership. The membership held by any Owner shall not
be transferred, pledged, or alienated in any way except upon the sale
or encumbrance of such Residential Lot, and then
only to the purchaser or deed of trust holder of such Residential Lot.
Any attempt to make a prohibited transfer is void and will not be
reflected upon the books and records of the Project Association.
7.6 Application of Provisions. The terms and provisions set forth in
this Project Declaration are binding upon all Members of the Project
Association and are not exclusive. 80th the Member and the Residential
Lot shall be subject to the terms and provisions of the Project and
Community Documents. The foregoing is not intended to include persons
or entities who hold an interest merely as security for the performance
of an obi igation. Membership shall be appurtenant to and may not be
separated from the Residential Lot. Ownership of such
Residential Lot shall be the sole qualification for membership. The
Developer shall hold a membership as to any Residential Lot that has
not been conveyed.
ARTICLE 8
PROJECT ASSOCIATION AND PROJECT BOARD OF DIRECTORS
8.1 Powers of Project Association. The Project Association shall have
all of the powers of a non-profit mutual benefit corporation organized
under the laws of the State of California in operating for the benefit
of the Owners subject only to the limitations expressly set forth in
the Project Documents. The Project Association shall have the power to
do any and all acts which are authorized, required or permitted
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under this Project. Declaration and to undertake any and all acts which
may be reasonable and necessary for, or incidental to the exercise of
any express powers granted the Project Association for the peace,
health, comfort, safety, or general welfare of the Project.
8.2 Project Association and Project Board of Directors. Any duty,
obligation or authority vested or required to be performed and any
power or privilege which may be exercised by the Project Association
pursuant to this Project Declaration shall be performed or, exercised
only by the Project Board or its authorized delegates, agents and
servants, and any power, duty, obligation or authority vested or
conferred on the Project Board by this Project Declaration shall be
deemed a power, duty, obligation or authority of the Project
Association.
8.3 Meetings of Project Association. The first meeting of the Project
Associations all be held within forty-five (45) days after the close of
escrows for the sale of fifty-one percent (51%) of the Residential Lots
in the first Project, but in any event not later than six (6) months
after the close of escrow for the sale of the first Residential Lot in
the Project. Thereafter, regular meetings and special meetings of the
Project Association and of its Project Board shall be called, held and
conducted in the manner provided in the Project By-Laws. At the first
meeting, the Project Members shall elect a Project Board.
8.4 Number of Project Directors. The Project Board shall consist of
five (5) Project Directors.
8.5 Project Director - Office. The Project Directors shall be nominated
and elected, have the term of Office, be removed from Office, and
vacancies shall be filled, as provided in the Project By-Laws.
8.6 Liability of Project Board Members. No Project Director shall be
personally liable to any of the Project Members, Owners, or to any
other person or entity including Developer to the Community
Association, for any error or omission of the Project Association,
Project Board representatives, its agents and employees, or the
Architectural Committee, provided that such Project Board
representative has, upon the basis of such information as may be
possessed by him, acted in good faith.
ARTICLE 9
POWERS, DUTIES AND LIMITATIONS
9.1 Powers and Duties. The powers and duties of the Project Board shall
include, but not be limited to, the following:
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9.1.1 Community Standards. Establish and maintain overall quality
standards for the Project compatible with Developer's development plans
and the LA JOLLA COLONY DESIGN CRITERIA MANUAL.
9.1.2 Operation of Project Common Facilities. Own and operate and cause
to be operated the facilities situated on the Project Common Area for
the benefit and enjoyment of the Owners.
9.1.3 Project Common Area Maintenance. Manage, operate, maintain,
repair and replace the Project Common Area and other property and
interests owned by the Project Association, and to acquire, maintain,
and replace such furnishings and equipment as the Project Board shall
determine proper. The Project Board shall maintain, landscape,
irrigate, and otherwise maintain the Project Common Area in accordance
with the LA JOLLA COLONY DESIGN CRITERIA MANUAL and the requirements of
the Community Board.
9.1.4 Community Assessments. Collect and enforce all Community
Assessments levied on Residential Lots in the Project as may be
required by the Community Board, and furnish an Assessment Roll as
defined in the Community Declaration to the Community Board.
9.1.5 Project Assessments and Funds. Establish the Project Funds,
determine, levy, collect, and enforce all Project Assessments, and
cause to be prepared all budgets and financial state-ments.
9.1.6 Payment from Project Funds. Provide and pay for from the Project
Funds any and all goods and/or services for the Project Common Area,
facilities, and interests or for the Project Asso-ciation to fulfill
any duty or responsibility of the Project Association imposed by this
Project Declaration, or imposed by the Community Declaration, or for
the benefit of the Owners, or as may be imposed by law, subject to the
I imitations set forth in Article 9.2.
9.1.7 Taxes and Assessments. Payment of taxes and assessments, if any,
levied or assessed against the Project Common Area, or against any
Residential Lot if resulting in a lien against the Project Common Area;
and any other lien or encumbrance which affects the Project Common
Area, including but not limited to, mechanics' liens. Such taxes,
assessments, liens or encumbrances which shall be paid by the Project
Board from the Project Fund, however, shall not include any levied or
assessed against, or which affects, merely the interest of one (1) or
more (but less than all) of the Residential Lots and not the interest
of all the Owners in the Project Common' Area; the Project Board shall
levy an enforcement assessment against any Residential Lot for the
amount of any such tax, assessment, ,lien or encumbrance which
Page 12
applied specifically- to such Residential Lot to the extent the amount
is separately determinable.
9.1.8 Maintenance of Residential Lot Landscaping and' Fences.
Maintenance of landscaping., walls and fences on Residential Lots as
required by this Declaration.
9.1.9 Maintenance of Residential Lots. Maintenance and repair of any
Residential Lot other than required by Article 9.1.8, if such
maintenance or repair is necessary in the discretion of the Project
Board to preserve or protect the Project Common Area or another
Residential Lot from damage, destruction, or unusual depreciation, and
if the Owner (as to which such maintenance or repair is necessary)
shall have failed or refused to perform the maintenance or repair
within a reasonable time after delivery to him by the Project Board of
written notice of demand for the maintenance or repair. The Project
Board shall levy a special assessment against the Residential Lot of
which such Residential Lot is a part for the cost of any such
maintenance or repair paid for by the Project Board in accordance with
the foregoing.
9.1.10 Utilities. Provide and pay for all utility services necessary or
desirable for the benefit of the Project Common Area, including, but
not limited to, water, gas, electricity, telephone, refuse collection,
and sewage disposal.
9.1.11 Insurance. Contract for casualty, liability, and other insurance
on behalf of the Project Association and as required herein, so long as
FNMA and/or FHLMC, holds a Mortgage or beneficial interest in a trust
deed encumbering a Residential Lot, or owns a Residential Lot in the
Community, the Project Association shall continuously maintain in
effect at least the insurance and fidelity bond coverage provided for
in Article 10, except to the extent that such requirements may have
been waived in writing by FNMA and/or FHLMC. The Project Association
shall continuously maintain in effect such casualty, flood and
liability insurance policies and fidelity bond meeting the requirements
as established by FNMA and/or FHLMC, as set forth in the FNMA and/or
FHLMC Servicer's Guide, or otherwise. The Project Board shall review
all insurance policies required by Article 10 on at least an annual
basis to assure full insurance protection at all times. Nothing herein
shall require the Project Board to provide casualty or liability
insurance for the Owners or the Residential Lots or structures thereon.
9.1.12 Management. Services of a person or firm to manage the Project
and services of such other personnel as the Project Board shall deem
necessary or proper for the operation of the Project.
Notwithstanding any provisions to the contrary in this Project
Declaration, no agreement for the services of a person or
Page 13
firm to manage the Project shall exceed a term of one (1) year and any
such agreement shall provide for termination by either party, without
cause, and without payment of a termination fee on ninety (90) days or
less written notice.
9.1.13 Legal and Accounting. Legal and accounting services necessary or
proper for the operation of the Project or the facilities or for the
enforcement of this Project Declaration.
9.1.14 Project Safety. Provide for such services for the protection and
safety of the Project Common Area as the Project Board deems reasonable
and appropriate, including, but not limited to, security guards and
patrols, and other related security services, equipment, and material.
9.1.15 Circulation System. Control, operate, maintain, and regulate the
pedestrian and bicycle circulation system of the Project in a manner
that will facilitate and encourage the use thereof by all Owners.
9. 1.16 Rules. Formation of rules for the operation of the Project,
Project Common Area, and facilities owned or controlled by the Project
Association.
9.1.17 Discipline. Initiate and execute disciplinary proceedings
against Project Members and Owners for violations of pro-visions of the
Project By-Laws and this Project Declaration in accor-dance with the
procedures set forth in said documents.
9.1.18 Enforcement. the Project Documents.
Enforce applicable provisions of
9.1.19 Delegation of Powers. Delegate its powers to committees,
officers, or employees of the Project Association as expressly
authorized by the Project Documents.
9. 1 .20 Entry By the Project Board. The Project Board or its agents or
other persons duly authorized by it may enter any Residential Lot when
reasonably necessary in order to perform maintenance repair,
construction, or other work for which the Project Board has authority,
or for any other purpose related to its responsibilities pursuant to
this Project Declaration. Any such entry shall be accomplished with as
little inconvenience to the Owner as possible, and, except in the event
of an emergency, upon reasonable notice to the Owner.
9.1.21 Furnishing Documents. Make available to any prospective
purchaser of a Residential Lot, any Owner of a Residential Lot, any
first Mortgagee and the holders, insurers and guarantors of
Page 14
the first Mortgage. on any Residential Lot, current copies of the
Project Declaration, the Project Articles of Incorporation, the Project
By-Laws, the rules governing the Residential Lot and all other books,
records
and financial statements of the Project Association. The Project
Board-shall also make available the Community Documents.
9.1.22 Utility Access. Permit utility suppliers to use portions of the
Project Common Area reasonably necessary to the ongoing development and
operation of the Project.
9.2 Limitations. The Project Board shall be prohibited from taking any
of the following actions, except with the vote or written consent of a
majority of the total voting power of the Project Association, and a
majority of the voting power of the Project Association, excluding the
voting power held or controlled by the Developer.
9.2.1 Contracts. Entering into a contract with a third person wherein
the third person will furnish goods or services for the Project Common
Area or the Project Association for a term longer than one (1) year
with the following exceptions:
(a) A management contract, the terms of which
have been approved by the Federal Housing Administration or Veterans
Administration. .
(b) A contract with a public utility company if the rates charged for
the materials or services are regulated by the Public Utilities
Commission provided, however, that the term of the contract shall not
exceed the shortest term for which the supplier will contract at the
regulated rate.
(c) Prepaid casualty and/or liability insurance policies of not to
exceed three (3) years duration provided that the policy permits short
rate cancellation by the insured.
9.2.2 Capital Improvements. Incurring aggregate expenditures for
capital improvements to the Project Common Area in any fiscal year in
excess of five percent (5%) of the budgeted gross expenses of the
Project Association for that fiscal year.
9.2.3 Sale of Property. Selling during any fiscal year property of the
Project Association having an aggregate fair market value greater than
five (5%) percent of the budgeted gross expenses of the Project
Association for that fiscal year.
9.2.4 Compensation. Paying compensation to Project Directors or to
Project Officers of the Project Association for services performed in
the conduct of the Project Association's business provided, however,
that the Project Board may cause a Project Director or Officer
Page 15
to be reimbursed for expenses incurred in carrying on the business of
the Project Association.
9.2.5 Hazard Insurance Proceeds. Unless seventy-five" percent (75%) of
the Lenders holding first deeds of trust or mortgage liens on the
Residential Lots have given their prior written approval, the Project
Board shall not use hazard insurance proceeds for losses to any
Property (whether to Residential Lots or to Common Area elements) for
other than the repair, replacement, or reconstruction of such Property.
9.2.6 Claims. Bring any action or commence litigation for any claim
involving more than Ten Thousand Dollars ($10,000.00).
ARTICLE 10
INSURANCE
10.1 Insurance. The Project Board shall obtain and maintain in force
the following policies of insurance for the Project Common Area:
10.2 Property Insurance. A "master" or "blanket" policy of property
insurance in an amount equal to the full replacement value (i.e. one
hundred percent (100%) of current "replacement cost" exclu-sive of
land, foundation, excavation and other items normally excluded from
coverage) of the Project Common Area and all structures located
thereon, with an "Agreed Amount Endorsement" or its equivalent, a
"Demolition Endorsement" or its equivalent, and, if necessary, an
"Increased Cost of Construction Endorsement" or "Contingent Liability
From Operation of Building Laws Endorsement" or the equivalent, such
insurance to afford protection against at least the following:
(a) Loss or damage by fire and other hazards covered by the standard
extended coverage endorsement, and by sprinkler leakage, debris
removal, cost of demolition, vandalism, malicious mischief, windstorm,
and water damage;
(b) Such other risks as shall customarily be covered with respect to
improvements similar in construction, location and use.
10.3 Liability Insurance. A comprehensive policy of public liabi I ity
insurance covering all of the Project Common Area with a "Severability
of Interest Endorsement" or equivalent coverage which would preclude
the company from denying the claim of an Owner be-cause of the negl
igent acts of the Project Association or another Owner, with limits of
not less than One Million Dollars ($1,000,000.00) covering all claims
for personal injury and/or property damage arising out of a
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single occurrence, such coverage to include protection against water
damage liability, liability for non-owned and hired automobile,
liability
for property of others, and, if applicable: garage-keeper's liability,.
host liquor liability, and such other risks as shall customarily be
covered with respect to improvements simi lar in construction, location
and use.
10.4 Required Provisions. All such property and liability insurance
shall be subject to the following provisions and limitations:
(a) The named insured under any such policies shall be the Project
Association or their authorized representative, including any trustee
with which such Project Association may enter into any Insurance Trust
Agreement, or any successor trustee, each of which shall be
hereinelsewhere referred to as the "Insurance Trustee" who shall have
exclusive authority to negotiate losses under said policies;
(b) In no event shall the insurance coverage obtained and maintained
pursuant to the requirement of this Article be brought into
contribution with insurance purchased by the Owners, or their Lenders;
(c) Such policies shall provide that coverage shall not be prejudiced
by (i) any act or neglect of the Owners when such act or neglect is not
within the control of the Project Association; or (ii) by failure of
the Project Association to comply with any warranty or condition with
regard to any portion of the Project over which the Project Association
has no control; and (iii) making a cash settlement, such option shall
not be exercisable without the prior written approval of the Project
Association (or any Insurance Trustee) or when in conflict with the
provisions of any Insurance Trust Agreement to which the Project
Association may be a party, or any requirement of law.
10.5 Fidelity Coverage. The Project Association shall be required to
maintain a equate fidelity coverage to protect against dishonest acts
on the part of Project Officers, Project Directors, trustees and
employees of such Project Association and all others who handle, or are
responsible for handling funds of the Project Association. Such
fidelity bonds shall meet the following requirements:
(a) All such fidelity bonds shall name the Project Association as an
obligee;
(b) Such fidelity bonds shall be written in an amount equal to at least
one hundred fifty percent (150%) of the annual Regular Project
Assessment.
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(c). Such fidelity bonds shall contain waivers of any defense based
upon the exclusion of persons who serve without compensation from any
definition of "employee" or similar expression;
(d) Such bonds shall provide that they may not be cancelled or
substantially modified (including cancellation for nonpayment of
premium) without at least thirty (30) days' prior written notice to
Lenders.
10.6 Worker's Compensation. A policy of workmen's compensation
insurance to the extent necessary to comply with applicable laws.
10.7 Other Insurance. Such other policy or policies of insurance which
the Project Board deems necessary and proper for the operation of the
Project and the protection of the interests of the Owners.
10.8 Residential Lot Owner Insurance. Each Residential Lot Owner shall
contract and pay for casualty, liability, and other insurance for the
protection of his Residential Lot. So long as FNMA
and/or FHLMC holds a Mortgage or beneficial interest in a trust deed
encumbering a Residential Lot or owns a Residential Lot in the
Community, each Owner shall continuously maintain in effect at least
the insurance and fidelity bond coverage provided for in this Article,
except to the extent that such requirements may have been waived in
writing by FNMA and/or FHLMC. Such Owner shall continuously maintain in
effect such casualty, flood and liability insurance policies meeting
the requirements as established by FNMA and/or FHLMC for Residential
Lots, as set forth in the FNMA and/or FHLMC Servicer's Guide, or
otherwise.
ARTICLE 11
RULES AND REGULATIONS
The Project Board shall have the right, from time to time, to adopt
reasonable rules and regulations not inconsistent with the pro-visions
of this Project Declaration governing the use of the Project Common
Area, by the Owners of the Residential Lots and their occupants and
guests, and to the conduct of such persons thereon, including rules
relating to pets and animals, vehicular parking, speed limits, and any
other activities as to which such conduct might adversely affect the
Project or its appearance or might offend, inconvenience or endanger
the Owners or their occupants and guests. A copy of the rules and
regulations shall be delivered to the Owner of each Residential Lot.
The rules and regulations shall be binding upon the Owners, their
occupants and guests, and shall be enforceable to the
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same extent as if they were specifically set forth as provisions in
this Project Declaration.
ARTICLE 12
PROJECT BOOKS AND RECORDS
The Project Board shall keep and maintain complete and accurate books
of account relative to its operation of the Project and the books and
records shall be available for inspection by any representative of the
Community Board or Owner at all reasonable times at such location as
may be approved from time to time by the Project Board. The Project
Board shall cause an independent audit to be made annually of such
books and records by a certified public accountant, and a copy of each
audit, including a statement of income and disbursements, shall be
delivered to the Community Board and each Owner within sixty (60) days.
after the close of the fiscal year adopted by the Project Board for the
Project as set forth in the Project By-Laws. Any Owner may at any
reasonable time, at his own cost and expense, cause an audit or
inspection to be made of the books and records by an accountant or
other representative duly authorized by him.
ARTICLE 13
PROJECT ASSESSMENTS
13.1 Creation of Lien and Personal Obligation of Project
Assessments. The Developer for each Residential lot owned by it within
the Project hereby covenants and agrees to pay, and each Owner, except
the Project Association, whether or not it shall be so ex-pressed in
any deed or other conveyance, is hereby deemed to covenant and agree to
pay Project Assessments established and collected from time to time as
hereinafter provided. Such Project Assessments, together with such
interest thereon and costs of collection therefore, as hereinafter
provided, shall be a charge on the Residential Lot and the personal
obligation of the Owner of the Residential Lot at the time the Project
Assessment fell due.
13.2 Project Funds. The Project Association shall establish and
maintain a Maintenance and Operation Fund into which the Project Board
shall deposit Regular Project Assessments. The Project Association
shall also establish and maintain such other funds as the Project Board
deems appropriate for deposit and disbursement of other Project
Assessments. All of said funds are generally referred to herein as the
Project Funds. The Project Board shall establish and collect all
Project Assessments and where necessary enforce the liens therefor as
provided in this Article.
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13.3 Purpose of Project Assessments. The Project Assessments shall be
used exclusively to promote the recreation, health,
safety, and welfare of the Owners of the Project and for the
improvements, maintenance, and operation of the Project Common Area.
13.4 Nature of Project Assessments. The Project Board shall establish
the following Project Assessments, each of which shall be used only for
the purposes specified in this Article:
13.4.1 Regular Project Assessments. The Regular
Project Assessments shall e an annual assessment fixed and levied by
the Project Board based upon the estimated costs of operation of the
Project Association, and the accomplishment of its purposes,
performance of its duties, and the exercise of its powers that benefit
the entire Project and the Owners.
13.4.2 Project Budget. The Project Board shall prepare or cause to be
prepared for each fiscal year a Project Budget of the total operating
expenses of the Project Association. Said Project Bud-get shall contain
estimates of all expenses of the Project Association determined on the
basis of the actual services to be undertaken by the Project
Association and the projected operating costs for each Project Common
facility which is or will be operational during any part of the fiscal
year. The Project Budget shall include reserves for major re-pairs and
replacement for each operational Project Common facility and
improvements located on the Project Common Area and a reserve for
unpaid Project Assessments. The Project Budget shall be completed not
less than forty-five (45) days prior to the beginning of each fiscal
year. The Project Budget for the initial fiscal year shall be prorated
for the balance of the year remaining. The Regular Project Assessment
for any given year shall not be more than twenty percent (20%) greater
per Residential Lot than the Regular Project Assessments per
Residential Lot for the immediately preceding fiscal year, without the
vote or written consent of at least fifty-one percent (51%) of the
total voting power of the Project Association, and fifty-one percent
(51%) of the voting power of the Project Association, excluding votes
held or con-trolled by the Developer.
13.4.3 Reconstruction Project Assessments. Reconstruction Project
Assessments may be levied by the Project Board under the conditions and
in the manner specified in Article 20.
13.4.4 Capital Improvement
Project Assessments.
Capital Improvement Project Assessments may be levied by the Project
Association in any Project Assessment year, applicable to that year
only for the purpose of defraying in whole or in part the cost of any
construction of a capital improvement on the Project Common Area;
provided that any Capital Improvement Project Assessment aggregating in
excess of five percent (5%) of the gross of all other Project As-
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sessments budgeted for that fiscal year shall have the vote or written
consent of at least two thirds (2/3rds) of the total voting power of
the Project Association and a majority of the voting power of the
Project Association excluding votes held or controlled by Developer.
Capital Improvement Project Assessments shall be assessed and shall be
allocat-ed to Owners in the same manner as Regular Project Assessments.
13.4.5 Special Project Assessments. Special Project Assessments may be
levied at any time during any fiscal year if the Regular Project
Assessments prove inadequate for any reason, including nonpayment of
any Owner's share thereof. No such Special Project Assessment shall
exceed five percent (5%) of the gross expenses budgeted by the Project
Association for the fiscal year without the vote or written consent of
at least fifty-one percent (51 %) of the total voting power of the
Project Association, and fifty-one percent (51 %) of the total voting
power of the Project Association, excluding votes held or controlled by
the Developer. Special Project Assessments shall be allocated in the
same manner as Regular Project Assessments.
13.4.6 Enforcement Project Assessments. The Project Association may
levy an Enforcement Project Assessment against any Owner who causes
damage to the Project Common Area or for violation of any of the
provisions of the Project Documents. The Project Board shall have the
authority to adopt a reasonable schedule of Project Assessments for any
violation of the Project Documents. If, after notice and a hearing as
required by Article 23, the Owner fails to cure or continues such
violation, the Project Association may impose an additional fine each
time the violation is repeated, and may assess such Owner and enforce
the Enforcement Project Assessment as herein provided for nonpayment of
a Project Assessment. A hearing committee may be established by the
Project Board to administer the foregoing.
13.4.7 Monetary Penalties. Notwithstanding Article 13.4.6, a monetary
penalty imposed by the Project Association as a disciplinary measure
for failure of an Owner to comply with the Project Declaration, Project
Articles, Project By-Laws and/or Project Rules, or as a means of
reimbursing the Project Association for costs incurred by the Project
Association in the repair of damage to the Project Common Area and
facilities for which the Owner was allegedly responsible or in bringing
the Owner and his Residential Lot into compliance therewith, shall not
be levied or enforced as a Project Assessment nor shall the same become
a lien against such Owner's Residential Lot enforceable by sale as
provided in Article 13.7.2.
13.5 Allocation of Project Assessments to Residential Lots.
All Project Assessments shall be allocated equally to each Residential
Lot in the Project, except Enforcement Project Assessments. Enforcement
Project Assessments shall be allocated directly to the individual
Residential Lot(s).
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13.6 Levy of Project Assessments. Project Assessments shall be levied
and commence according to the following procedures:
13.6.1 Commencement of Regular Project Assessments. Regular Project
Assessments shall commence as to all Residential Lots in the Project on
the first day of the month following the close of escrow for the sale
of the first Residential Lot in the Project to an Owner. As to any
property which is hereafter annexed into the Project, the Regular
Project Assessment shall commence as to all of such Residential Lots in
the Annexation Property not later than the first day of the month after
the close of escrow for the sale of the first Residential Lot to an
Owner in the property so annexed.
13.6.2 Payment of Regular Project Assessments. Unless expressly
provided otherwise by the Project Board, each Regular Project
Assessment shall be payable in twelve (12) equal monthly installments,
of which the first installment shall be due and payable on the first
day of the first month of each fiscal year.
13.6.3 Commencement and Payment of Other Assessments. All other
assessments shall be fixed at such times as the Project Board deems
appropriate. The Project Members and Owners shall be given reasonable
notice thereof. The due dates for payment of such other Project
Assessments shall be established by the Project Board.
13.6.4 Working Capital Fund. To insure adequate funds to meet the
initial expenses to the Project Association, a working capital start-up
fund is established which consists of a sum equal to two (2)
installments of the initial Regular Project assessment. Said sum shall
be paid by the Developer for all Residential Lots in the Project and
any annexations thereto at the time the initial assessments by the
Developer are paid. All such working capital start-up fund payments
made by the Developer shall be reimbursed to the Developer by the
purchaser through escrow at the time the Residential Lot in the Project
is sold.
13.6.5 Certificate of payment. The Project Association shall, upon
demand, and for a reasonable charge, furnish a certificate signed by an
Officer of the Project Association setting forth whether the Project
Assessments on a specified Residential Lot have been paid.
13.6.6 No Offsets. All Project Assessments shall be payable in the
amounts specified by the particular Project Assessment and no offsets
against such amounts shall be permitted for any reasons, including,
without limitation, a claim that the Project Association is not
properly exercising its duties.
13.6.7 Community Assessment Rolls. The Project Association shall
maintain and revise annually, an Assessment Roll reflecting
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the name and address of each Owner, and other data necessary to levy
the Project Assessments. The Project Board shall supply the Community
Association with the Project Assessment Rolls and all amendments or
revisions. thereto on a regular basis.
13.6.8 Transfer of Property. After transfer or sale of a Residential
Lot in the Project, the selling Owner or Owners shall not be liable for
any Project Assessment levied on the Residential Lot after the date of
such transfer or ownership and written notice of such transfer is
delivered to the Project Association. The selling Owner shall remain
responsible for all assessments and charges levied on the Residential
Lot prior to any such transfer.
13.7 Effect of Non-Payment of Project Assessments Remedies of Project
Association. Any Project Assessments which are not paid when due shall
be delinquent. If any Project Assessment is not paid when due, the
Project Assessment shall bear interest from the date of delinquency at
the rate of ten percent (10%) per annum. In the event of a default in
payment of any Project Assessment, the Project Association may enforce
each such obligation as follows:
13.7.1 Action Against Owner. By suit or suits at law to enforce such
Project Assessment obi igation. Any judgment rendered in any such
action shall include a sum for reasonable attorneys' fees in such
amount that the Court may adjudge against such defaulting Owner. Upon
full satisfaction of any such judgment, it shall be the duty of the
Project Association by any authorized Officer thereof to execute and
deliver to the judgment debtor an appropriate satisfaction thereof.
13.7.2 Foreclosure of Lien on Residential Lot. Within thirty (30) days
after the delinquency of any Project Assessment, the Project
Association shall give a notice to the defaulting Owner which said
notice shall state the date of the delinquency, the amount of the
delinquency, and the interest charge for such delinquency, and make a
demand for payment thereof. If such delinquency and interest is not
paid within ten (10) days after delivery of such notice, the Project
Association may elect to file a claim of lien against the Residential
Lot of such delinquent Owner. Such claim of lien shall state (a) the
name of the delinquent Owner or reputed Owner; (b) a description of the
Residential Lot against which the claim of lien is made; (c) the amount
claimed to be due and owing; (d) that the claim of lien is made by the
Project Association pursuant to the terms of the Project Declaration;
and, (e) that a lien is claimed against said described Residential Lot
in an amount equal to the amount of the stated delinquency, plus
interest and attorneys' fees. Any such claim of lien shall be signed
and acknowledged by an authorized Officer of the Project Association,
and shall be recorded in the Office of the Recorder of the County of
San Diego, State of California. Each delinquency may constitute a
separate basis for a claim of lien. Any such claim of lien may be
foreclosed by
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appropriate action in Court or in the manner provided by law for the
foreclosure of a Mortgage under power of sale. Any such sale provided
for above shall be conducted in accordance with the provisions of
Section 2924, 2924(b), and 2924(c) of the Civil Code of the State of
California, applicable to the exercise of powers of sale in Mortgages
and
deeds of trust, or in any other manner permitted or provided by law.
In the event such foreclosure is by and action in Court, reasonable
attorneys' fees shall be allowed. In the event the foreclosure is
con-ducted as in the case of a Mortgage under power of sale, any
authorized officer of the Project Association shall be deemed to be
acting as would an agent of the Lender and shall be entitled to actual
expenses and such fees as may be allowed by law or as may be prevailing
at the time the sale is conducted. A certificate of sale shall be
executed and acknowledged by any authorized officer of the Project
Association or by the person conducting the sale. A deed upon
foreclosure shall be executed in like manner.
The Project Association through its duly authorized agent, shall have
the power to bid on the Residential Lot if necessary using Project
Association Funds, or funds borrowed for such purpose, at the sale and
to acquire and hold, lease, Mortgage and convey the same.
13.7.3 Cure of Default. Upon the timely curing of any default for which
a notice of claim of lien was filed by the Project Association, Project
Officers are hereby authorized to file or record, as the case may be,
an appropriate release of such notice, upon payment by the defaulting
Owner of a reasonable fee, to be determined by the Project Association,
to cover the cost of preparing and filing or recording such release
together with a payment of such other costs, interest, or fees as shall
have been incurred.
13.7.4 Non-Exclusive Remedy. The Project Assessment liens and the
rights to foreclosure and sale thereunder shall be in addition to and
not in substitution of all other rights and remedies which the Project
Association and its assigns may have hereunder and by law, including a
suit to recover a money judgment for unpaid Project Assessments as
above provided.
13.7.5 Delegation of Authority. Each Owner hereby vests in and
irrevocably delegates to the Project Board the right and power to bring
all actions at law or equity, and lien foreclosures, whether judicially
or by power of sale, or otherwise, against any Owner for the collection
of delinquent Project Assessments in accordance herewith, and hereby
expressly waives any objection to the enforcement in accordance with
this Project Declaration of the obligation to pay Project Assessments
as set forth in this Project Declaration.
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13.8 Collection of Community Assessments by Project Association. If
required by the Community Board, the Project Board shall collect the
proportionate amount of the Community Assessment allocable to the
Residential Lots in the Project. Such collection and administration so
delegated shall be undertaken at the cost of the Project Association.
The Project Association shall deposit any Community Assessments so
collected in a separate trust fund for the benefit of 'the Community
Association. Such Community Assessments collected by the Project
Association shall be paid to the Community Association on a minimum of
a monthly basis. The Project Association shall furnish the Community
Association on a minimum of a monthly basis a report of the current
status of the Community Assessment payments of each Owner in the
Project.
~
13.9 Collection of Project Assessments by Community Association. The
Community Association is empowered to, but shall not have the duty to,
collect, enforce, and otherwise administer the Project Assessments of
the Project such that Community Assessments and Project Assessments may
be collected contemporaneously. The Community Board shall disburse
funds collected on behalf of the Project Association as promptly as
possible. The Community Board may not charge for any such collection
other than any actual additional costs for such collection that are
charged to the Community Association. In the event the Project
Association fails to levy or collect Project Assessments or fails to
duly operate and maintain the Project to the standards established for
the Community, the Community Association may elect to preempt the
rights of the Project Association and may fix, levy, collect, and
enforce said Project Assessments and arrange for such operation and
maintenance. Such preemption regarding Project Assessments and
maintenance shall require a vote of two-thirds (2/3) of the Community
Board, which vote must be ratified by a vote of two-thirds (2/3) of the
Project Boards within ninety (90) days of the vote of the Community
Board.
Any Project Assessments collected under such preemption by the
Community Association shall be used solely. for the purposes stated in
the Project Declaration. The Community Board may retain the funds
collected and directly disburse such funds to assure that the Project
is being properly operated and maintained. The Project Association may
not levy or collect any Project Assessments during the period in which
the Community Association has preempted its rights to so levy or
collect assessments. The preert:1ption shall expire at the end of the
fiscal year of the Project in which the preemption occurred.
13.10 Subordination of the Lien to Mortgages. The lien of the Community
Assessments and Project Assessments provided for herein shall be
subordinate to the lien of any recorded First Mortgage (meaning a
Mortgage or deed of trust with first priority over other Mort-gages).
Sale or transfer of any Residential Lot shall not affect any Community
Assessment lien or Project Assessment lien. However, the sale or
transfer of any such Residential Lot which is subject to any
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recorded First Mortgage pursuant to a decree of foreclosure, or a sale
or transfer of any such Residential Lot which is .subject to any
record-ed First Mortgage pursuant to a decree of foreclosure, or a sale
under. power of sale under such First Mortgage shall extinguish the
lien of such Community Assessments and Project Assessments as to
payments thereof which become due prior to such sale or transfer.
Pursuant to the provisions hereof ,liens shall be created on the
interest of the purchaser at such foreclosure sale, to secure all
Community Assessments and Project Assessments assessed hereunder to
such purchaser, as an Owner after the date of such foreclosure sale,
which lien shall have the same effect and be enforced in the same
manner as provided herein. The lien for unpaid Community Assessments
shall be prior to any lien for an unpaid Project Assessment. Nothing in
this Article shall be construed to release any Owner from his personal
obligation to pay for any Community Assessment or Project Assessment.
ARTICLE 14
PROJECT COMMON AREA –
PERMITTED USE AND RESTRICTIONS
14. 1 Project Common Area. The Project Common Area shall be owned,
operated, used, and maintained for the beneficial use and enjoyment of
the Owners, their occupants and guests, subject to the limitations set
forth in this Article.
14.2 Alteration or Improvement of Project Common Area.
Other than work performed by Developer in connection with development
of the Community Common Area or Project Common Area, no work which in
any way alters any Project Common Area from its natural or existing
state after the date such Project Common" Area was conveyed by
Developer to the Project Association shall be made or done except by
the Community Association or Project Association or its agents. The
Project Association shall reconstruct, replace, or refinish any
improvement or portion thereof situated within the Project Common Area.
Such work shall be in accordance with the original design, finish, or
standard of construction of such improvement when such Project Common
Area was conveyed by Developer, or, in a different manner if approved
by the Community Architectural Control Committee.
14.3 Limitations on Use of Project Common Area. The following
restrictions on use of the Project Common Area shall apply:
14.3.1 No Obstructions. There shall be no obstruction of the
Project Common Area except as permitted herein or as provided by the
Project Rules. Nothing shall be placed or stored in the Project Common
Area except as allowed by the express permission of the Project Board.
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14.3.2 Nuisances. No noxious or unreasonably offensive activities shall
be carried on, nor shall anything be done or placed on the Project
Common Area which are or become a nuisance, or cause
unreasonable embarrassment, disturbance, or annoyance to Owners in. the
enjoyment of their property or in the enjoyment of the Project Common
Area.
14.3.3 Rubbish. No portion of the Project shall be used or maintained
as a dumping ground for rubbish. No oil or other refuse shall be
allowed to enter storm drains.
14.3.4 Fires. There shall be no exterior fires on Project Common Area,
except as permitted by the Project Board.
14.3.5 Signs. No sign of any kind shall be placed or displayed on the
Project Common Area, without the prior consent of the Project Board,
except:
(a) Such signs as may be required by legal proceedings, or the
prohibition of which is precluded by law;
(b) During the time of construction of any improvement by Developer,
identification signs regarding financing and construction;
14.3.6 Temporary Structures and Recreational Vehicles, Boats,
Trailers. No trailer, tent, shack, or other outbuildings shall be
kept upon the Project Common Area except, in connection with work or
construction diligently pursued. No housetrailers, campers,
recreational vehicles, boats, or trailers shall be kept upon Project
Common Area except in locations expressly designated by the Project
Association.
14.3.7 Vehicles. No vehicle maintenance or repair, except in case of
emergency, shall be permitted on the Project Common Area. No automobile
or other motor vehicles shall be parked in the Project Common Area or
in any street within the Project except in designated parking areas. No
vehicles which are in an inoperable condition shall be kept or stored
on the Project Common Area or in any street within the Project for a
period greater than seventy-two (72) hours.
14.3.8 Pets. The Owner of any pet or animal shall be responsible for
the immediate removal and clean-up of such animal's waste in the
Project Common Area. The Owner of any pet or animal shall at no times
allow such animal to run unrestrained on Project Common Area or in the
streets, sidewalks or pathway areas of the Community and the Owner of
such pets shall at all times have full and complete control over such
animal. The Project Board shall have the
Page 27
right after notice .and . hearing to remove animals from Project Common
Area which it finds constitutes a continuing reasonable nuisance to
Owners.
14.4 Easements and Encroachments. Over Project Common Area. The Project
Common Area shall be subject to the following easement rights and
encroachment rights:
14.4.1 Utilities. Each
Owner of a Residential Lot served by utility
connections, lines or facilities, including those for water, electric,
gas, sanitary sewer, telephone, drainage, and Project Communication
services, shall have the right and is hereby granted an easement across
and through the Project Common Area for entry to the full extent
necessary by the appropriate utility companies where such connections,
lines, or facilities may be located for repair, replacement,
and maintenance thereof pursuant to the direction of the Project
Association. Whenever utility connections, lines, or facilities
installed within the Project serve more than one (1) Residential Lot,
the Owner of each Residential Lot served thereby shall be entitled to
full use and enjoyment of the portions thereof which service his
Residential Lot. Developer hereby reserves easements over, under, and
through the Project Common Area for installation of such utility
connections, lines, or facilities as shown on recorded subdivision maps
for property in the Project together with the right to grant and
transfer the same to the Community Association, Project Associations,
utility companies, the City, Builders, or other appropriate entities
and the right to use such utility connections, lines, or facilities for
the benefit of the lands described on Exhibit "A.II
14.4.2 Development and Sales. There is hereby re-served to Developer
easements over the Project Common Area and the facilities located
thereon for construction and sales activities all as more particularly
described in Article 18. Furthermore, there is reserved to Developer
easements and rights of way over, under, and across the Project Common
Area for access to and development of the adjacent property described
on Exhibit "A," which easements and rights Developer may assign to its
successors in interest of said adjacent property.
The Developer further reserves a non-exclusive easement over the
Project Common Area for the purpose of conducting sales of Residential
Lots including the right of ingress, egress, the promotion of sales of
unsold units and the display of signs advertising unsold Residential
Lots to prospective purchasers.
14.4.3 Encroachments. Each Owner of a Residential Lot adjacent to the
Project Common Area shall hereby have an easement over said Project
Common Area for use and maintenance of encroachments thereon due to
settlement or shifting of buildings or other improvements, original
construction errors or any other similar causes, so
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long as said encroachments exist. However, no such easement for
encroachment shall exist if an encroachment occurred due to the willful
conduct of the Owner of the Residential Lot. The rights and obligations
of Owners in the Community shall not be otherwise altered or affected
by any such encroachment. In the event of any Residential Lot or
Community Common Area adjoining the Project Common Area is situated on
the interior of the enclosure of an original boundary fence to the
Project Common Area, such property shall be maintained as such Project
Common Area, until and unless such fence is relocated.
14.5 Maintenance Standard. The Project Association shall keep and
maintain the Project Common Area, and all structures, facilities, and
landscaping thereon, at all times in. good repair and appearance and in
accordance with Community standards established by the Community Board
and in compliance with the La Jolla Colony Design Criteria Manual.
14.6 Maintenance of Fences and Walls. The Project Association shall
keep and maintain in good repair and appearance all fences and walls
installed by the Developer along the rear yard and side yard of the
various Residential Lots, which rear yard and side yard walls or fences
are located along the perimeter of the Project.
14.7 Maintenance of Landscaping - Residential Lot Front Yard. The
Project Association shall keep and maintain all landscaping planted in
the front yard of all Residential Lots. The Association shall plant,
replant, fertilize, irrigate, and maintain all such landscaping in a
healthy and neat appearing condition in accordance with the Community
standards established by the Community Board and the La Jolla Colony
Design Criteria Manual. As used herein, Residential Lot front yard
shall mean that portion of every Residential Lot consisting of the area
between the Street Lot adjacent to said Residential Lot and a garage,
courtyard, or fence adjacent to said Street Lot, but excluding
driveways and walkways.
14.8 Street Lot Maintenance. The Project Association shall keep and
maintain the private street system in a neat, orderly and safe
condition, and shall further adopt such rules, and post such traffic
signs as are necessary to regulate parking and the flow of traffic in a
safe manner.
ARTICLE 15
RESIDENTIAL LOTS EASEMENTS AND OBLIGATIONS
In addition to all other duties and obligations imposed upon
Residential Lots in the Project and the ners by the Community
Documents and the Project Documents, each Residential Lot shall be
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subject to the following easements and the Owners shall have the
following obligations:
15.1 Maintenance of Residential Lots. Each Owner shall, at his cost and
expense, keep and maintain his Residential Lot and all structures
thereon at all times in a neat, clean, safe, and sanitary condition and
in a good state of upkeep and repair, including a fully operable
automatic garage door opener, in full compliance with Community
standards established by the Community Board and the requirements of
the La Jolla Colony Design Criteria Manual. Each Owner shall keep all
landscaping on his Residential Lot, except landscaping required to be
maintained by the Association, in a neat and healthy condition in
accordance with such standards and Manual.
15.2 Landscaping Maintenance Easement. Developer hereby reserves an
easement, together with the right to grant and transfer the same to the
Project Association, and every Residential Lot in the Project shall be
subject to such easement, over that portion of every Residential Lot
consisting of the area between the Street Lot adjacent to said
Residential Lot and a garage, courtyard, or fence adjacent to said
Street Lot, but excluding driveways and walkways. Such easement shall
be for the purpose of ingress, egress, and for the planting,
irrigation, maintenance, fertilization, and trimming of all landscaping
thereon.
15.3 Owner Rights and Duties. An Owner shall be entitled to use the
Project Common Area and Project Common Facilities. Upon conveyance,
sale, or assignment of record of an Owner's interest in a Residential
Lot, the grantee of such Residential Lot shall automatically succeed to
the Project rights of the selling Owner. No Owner may avoid any
obligations imposed on Owners by the Community Declaration or this
Project Declaration by non-use of Community Common Area, Community
Facilities, Project Common Area, Project Common Facilities,
renunciation, non-use or abandonment of his Residential Lot in. the
Project, or other act of abandonment or renunciation.
15.4 Separate Taxes and Assessments. Each Owner shall execute such
documents and take such action as may be reasonably required, as
determined by the Project Board, to obtain separate assessment for real
and personal property taxes and assessments for each Residential Lot.
In the event any real or personal property taxes or assessments shall
for any reason not be separately levied upon the individual Residential
Lot responsible therefore, such taxes and/or assessments shall be paid
by the Project Board and thereupon specifically assessed by the Project
Board to the individual Owners equally, or to any specific Owner( s)
who may be particularly responsible there-
for, as the case may be. Each Owner shall pay promptly the amount of
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any real and personal property taxes or assessments levied against his
Residential Lot.
15.5 Party Walls. Each wall or fence which is built as a part of the
original construction of a Unit and placed on the dividing line between
Residential Lots shall constitute a party wall, and to the extent not
inconsistent with the provisions of this Declaration, the general rules
of law regarding party walls and of liability for property damage due
to negligence of willful acts or omissions shall apply thereto. The
cost of reasonable repair and maintenance and any necessary rebuilding
or restoration of a party wall, except such as may be occasioned by the
negligence or willful acts or omissions of an Owner using the wall,
shall be shared by the Owners who use the wall in proportion to such
use. The right of any Owner to contribution from any other Owner under
this Article shall be appurtenant to the Residential Lot and shall pass
to such Owner's successors in title.
ARTICLE 16
USE OF RESIDENTIAL LOTS
The Residential Lots shall be used, occupied, and maintained in
accordance with the following:
16.1 Single Family Residential. Each Residential Lot shall be used for
single family residential purposes only. With the exception of a Lender
in possession of a Residential Lot following a default in a First
Mortgage, and foreclosure proceedings, no Owner shall be permitted to
lease his Residential Lot for transient or hotel purposes. No Owner may
lease less than the entire Residential Lot. Any lease agreement shall
be required to provide that the terms of the lease shall be subject in
all respects to the provisions of the Community Documents and the
Project Documents, and that any failure by the lessee to comply with
the terms of such documents shall be a default under the lease. All
leases shall be required to be in writing.
16.2 Insurance, Waste, and Nuisance. No Owner shall do anything which
shall increase the rates of insurance, or result in cancellation of
insurance relative to the Project or any portion of it or any
Residential Lot. No Owner shall commit any waste in the Project Common
Area, nor do anything in or about or in connection with the Project
which would be in violation of any statute, law, ordinance or
governmental rules or regulations. No Owner shall permit any activity
or conduct on his Residential Lot which shall cause or create a
nuisance.
16.3 Si9~.S' No sign of any nature, except as provided in Section 712
of the Civil Code, shall be displayed to the public view on
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or from any Residential Lot without the prior written approval of the
Project Board as to size, shape, color, and content; however, Developer
may, during the sales, place reasonable signs upon the Project in.
connection with the sale of the Residential Lots in the Project, owned
by it or in which it has a security interest.
16.4 Pets. No livestock, poultry, or animals of any nature shall be
raised, r5"Fed, or kept in any Residential Lot, except not exceeding
two (2) domestic dogs not exceeding twenty (20) pounds upon mature
growth, two (2) cats, caged birds, or other household pets, provided
that they are not kept or maintained for any commercial purposes.
16.5 Exterior Alteration. No Owner shall alter, construct, or remove
any portion of the structures located on his Residential Lot without
the prior written consent of the Community Architectural Control
Committee. No individual outdoor television or radio antennas or
satellite disks shall be erected or maintained on any Residential Lot.
Each Owner shall have the right to erect and maintain on his
Residential Lot not more than one (1) flagpole.
16.6 Unsightly Items. Each Owner shall keep his Residential Lot free of
debris and detritus, and shall not permit laundry or other unsightly
items to extend from or hang over windows, walls, or fences. Exterior
clotheslines shall be prohibited.
16.7 Parking. No boat, trailer, or motor home shall be parked or stored
on any Residential Lot, except in a garage where the same may be hidden
from view when the garage door is in a closed position. No automotive
or maintenance work, in the absence of an emergency, shall be performed
in and about the Project or Residential Lot.
ARTICLE 17
PROJECT ARCH ITECTURAL CONTROL
17.1 Approval Required. No building, improvement, grading, fence, wall,
and/or other structure, including but not limited to landscaping
(except landscaping within the rear yard of Residential Lots), swimming
pools, patios, lights, shall be commenced, erected, placed, maintained,
or altered within the Project, nor shall any exterior addition to or
exterior change, alteration, or exterior improvement be made until the
complete plans and specifications showing the nature, kind, shape,
height, color, materials, and location of the same shall have been
submitted to and approved in writing by the Community Architectural
Control Committee ("Committee"), and the owner has
Page 32
obtained a building permit as may be required by local governmental
authorities.
17.2 Delegation to Project Board. The Community Architectural
Control Committee may delegate its authority to exercise architectural
control over the Project to the Project Board. If such authority is
delegated, the Project Board shall exercise all duties, obligations and
functions of the Community Architectural Control Committee- as set
forth in the Community Declaration as to the Project, and shall perform
all such duties, obligations and functions in accordance with the
rules, procedures and guidelines set forth in said Community
Declaration.
17.3 Developer Exemption. Any building, structure, improvement,
grading, fence, wall or landscaping erected or installed by the
Developer as part of the original Project or Annexation thereto shall
not be subject to the Architectural Control provisions provided herein.
ARTICLE 18
RIGHTS OF DEVELOPER
18. 1 Non-Exclusive Easement for Sales. Notwithstanding any of the
foregoing restrictions, Developer, its successors, assigns, agents and
representatives, shall have the right to the non-exclusive use of the
Project Common Area for maintaining a sales complex, including the
exclusive use of the sales facility, together with sales models, a
sales and decorator office or offices, and signs, parking areas and
other
displays and exhibits to be used for the sale of the Residential Lots;
said use shall be for a period of not more than five (5) years, or
until all Residential Lots are sold, whichever is less, provided,
however, that no such use by Developer or its agents or representatives
shall otherwise restrict or unreasonably interfere with the Project
Members in their use and enjoyment of the Project Common Area or
facilities thereof.
In addition to the foregoing, the Developer also reserves the right of
ingress and egress over the Project Common Area for the purpose of
conducting sales of Residential Lots, including the promotion and
display of unsold Residential Lots, to prospective purchasers so long
as any Residential Lots owned by the Developer remain unsold.
18.2 Non-Exclusive Easement for Construction. Developer, its
successors, assigns, agents and representatives shall have the right to
the non-exclusive use of the Project Common Area and the facilities
thereof during the construction of the Project, and the improvement of
said property to park or place thereon portable offices or any vehicle,
Page 33
ARTICLE 19
ANNEXATION
19.1 Annexation of Additional Property. may be annexed to the Project
only as follows: .
19.1.1 Developer's Annexation Rights. Developer may. but shall not be
required to. annex all or any portion of the Annexation Property
described in Exhibit "A" to the Project at any time or from time to
time without the vote or approval of any other Owners. the Community
Association or Project Association; provided, however. that if such
Annexation is not effected either prior to the third anniversary of the
original issuance of the most recently issued Public Report of the
State of California Department of Real Estate for a phase of a Project,
then such Annexation shaH require the vote or written consent of
two-thirds (2/3) of each class of Project Members of the Project
Association. Annexation by Developer may be effected in increments.
Additional property
19.1.2 Annexation Procedure. The Annexation of any such property by
Developer shall be effected by the recordation of a Declaration of
Annexation by or with the consent of Developer de-scribing the property
to be annexed and providing for such additional covenants, conditions
and restrictions on such Annexation Property as may be necessary to
include such property in the Project and speci-fying that all of the
covenants, conditions and restrictions of this Project Declaration
shall apply to such Annexation Property in the same manner as if it
were originally covered by this Project Declaration. The express desire
and intention of Developer is to establish a cohesive plan of covenants
and servitudes to be uniformly applicable to all portions of the
Project, including those portions added thereto by Annexation.
19.1.3 Project Common Area. Any Project Common Area within any portion
of the Project which is annexed and which will not be owned by the
Owners as tenants in common shall be conveyed to the Project
Association in fee or by grant of easement, which ever is applicable,
upon the Annexation of any such property.
19.1 .4 Rights of Obligations of Owners. After the
required Annexation procedures are fulfilled, all Owners in the Project
shall have a non-exclusive easement for ingress and egress and
beneficial use and enjoyment of any Project Common Area in such annexed
property. and there shall exist a non-exclusive easement for ingress
and egress and beneficial use and enjoyment over the Project Common
Area of the existing Project. in favor of Owners and future Owners of
the Residential Lots in such annexed property. all subject to the
pro-visions of this Project Declaration. and Owners of such annexed
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property shall thereupon be subject to this Project Declaration. After
each Annexation, the Project Assessments shall be assessed to the
annexed property with the annexed property being assessed for a
proportionate share of the total Community and Project expenses on the
same basis as the other Residential Lot in the Project. Assessments
shall commence on the Residential Lot so annexed upon the first day of
the month after the close of escrow for the sale of the first
Residential Lot in the Property so annexed.
19.2 Limitation. The Annexation pursuant to this Article shall be
authorized only if a Subdivision Map covering all or a portion of the
Annexation Property has been recorded and the Residential Lot
Residential Lots shown on said Map does not exceed one hundred and
forty-six (146) Residential Lots upon Annexation of all of the
Annexation Property (including the original Project). Developer agrees
that it will not exercise its right to Annexation unless the
Residential Lots to be constructed thereon are of a size, style, and
quality comparable to the Residential Lots located in the existing
Project.
ARTICLE 20
DAMAGE AND DESTRUCTION
.~/
20.1 Duty of Project Board. In the event the Project or any portion of
it, is damaged by fire or other casualty, the Project Board shall take
such steps as are proper to make the necessary repairs and
reconstruction of the damage.
20.2 Minor Casualty. In the event any insurance proceeds paid as a
result of the damage to the Project Common Area do not exceed the sum
of Ten Thousand Dollars ($10,OOO.OO) the insurance proceeds shall be
held by the Project Board for reconstruction.
20.3 Major Casualty. In the event the insurance proceeds do exceed such
sums, then all of the insurance proceeds shall be paid to the holder of
any Mortgage or Deed of Trust up.on the Project or any portion of it,
in trust, however, for. the purpose of making payment upon the cost of
repairs and reconstruction; but if there be no holder of such Mortgage
or Deed of Trust, then the insurance proceeds shall be paid to an
insurance trustee, in trust, for the purpose of making payment for the
costs of the repairs and reconstruction, which insur-ance trustee shall
be a bank or trust company located in the County of San Diego,
California; selected by the Project Board. Any insurance proceeds in
excess of the amount required to pay such costs shall be disbursed to
the Project Board for the benefit of the Owners based upon the fair
market value of each Residential Lot as established by an independent
appraisal conducted by an M. A.I. appraiser selected by the Project
Board.
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20.4 Insurance Proceeds Insufficient. In the event the insurance
proceeds are insufficient to pay all of the costs of the repairs and
reconstruction, the Project Board shall levy a reconstruction
assessment against the Owners to be levied, assessed and paid by the'
Residential Lot Owners equally.
20.5 Notice to Lenders - Priority Distribution. In the event of damage
to or destruction of the Project. Common Area and related facilities
exceeding Ten Thousand Dollars ($10,000.00), the Project Association
shall give all Lenders in the case of damage or destruction to the
Project Common Area, timely written notice of such damage or
destruction. Notwithstanding anything to the contrary herein contained,
no Owner or other party shall be entitled to priority over such Lender
with respect to the distribution to such Owner of any insurance
proceeds.
ARTICLE 21
CONDEMNATION
21.1 Award. If at any time all or any portion of the Com-mon Area, or
any interest therein, be taken for any public or quasi-public use,
under any statute, by right of eminent domain or by private purchase in
,lieu of eminent domain, the award in condemnation shall be paid to the
holder or holders of fee title to such area, their Mortgagees, and the
Association, as their interests may appear. Any such award payable to
the Association shall be deposited in the maintenance fund. No owner
shall be entitled to participate as a party, or otherwise, in any
proceedings relating to such condemnation. The Association shall have
the exclusive right to participate in such proceedings and shall, in
its name alone, represent the interests of all owners.
21.2 Lender Notice - Priority in Distribution. If the Project Common
Area or any portion thereof is made the subject matter of any
condemnation or eminent domain proceeding or is otherwise sought to be
acquired by a condemning authority, all Lenders in the Project shall be
entitled to timely written notice of any such proceeding or proposed
acquisition, and notwithstanding anything to the contrary herein
contained, no owner of a Residential Lot or other party shall be
entitled to priority over such Lender or Lenders with respect to the
distribution to such Residential Lot of the proceeds of any award or
settlement.
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ARTICLE 22
COMPLETION OF PROJECT
COMMON AREA IMPROVEMENTS
I f the Project Common Area improvements have not been completed prior
to the issuance of the California Final Public Report of Subdivision
and the Project Association is obligee under a bond or other
arrangement to secure performance for the completion of said
improvements, the Project Board shall:
(a) Consider and vote on the question of enforcing obligations under
the bond with respect to any improvement for which a Notice of
Completion has not been filed within sixty (60) days after the
completion date specified for the improvements in the planned
construction statement appended to the bond unless said date has been
extended, and, if extended, unless a Notice of Completion has not been
filed within thirty (30) days after the expiration of said extension.
(b) Call a special meeting of the Project Members for the purposes of
voting to override a decision by the Project Board not to initiate
action to enforce the obligations under the bond, or, upon failure of
the Project Board to consider and vote on the question. The Developer
shall not be entitled to vote on the question so presented. The meeting
shall be held not less than thirty-five (35) days nor more than
forty-five (45) days after receipt by the Project Board of a petition
for such meeting signed by Project Members representing at least five
(5%) percent of the total outstanding Class A votes.
(c) If the Project Board under Article 22(a) or a majority of the
voting power of the Project Members, excluding the voting power of the
Developer, vote in favor of taking action to enforce the obligations
under the bond, such vote shall be deemed a decision of the Project
Association and the Project Board shall thereafter promptly initiate
and pursue appropriate action in the name of the Project Association.
ARTICLE 23
ENFORCEMENT
23.1 Equitable Servitudes. The provisions of this Project Declaration
shall be deemed covenants, conditions and restrictions and equitable
servitudes, which may be enforced by any Owner, the Project Board, or
the Community Board, and which shall be liberally construed to
effectuate the purpose of creating a uniform plan for the development
and operation of the Project. In the event of a default in the
performance of any of the provisions of the Community Declaration, the
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Community Articles, and Community By-Laws or the failure of any Owner
to comply with this Project Declaration, the Project Articles ,or
Project By-Laws, such default or failure may be resolved by all
appropriate legal proceedings including but not limited to by
injunction, abatement of nuisance and damages.
, "
23.2 Disciplinary Action. In addition to any other means of enforcement
provided by this Project Declaration, the Project Board shall have the
right to suspend the voting rights of any Owner for any period during
which any assessment against his Residential Lot remains unpaid and
delinquent and for a monetary penalty not exceeding Fifty Dollars
($50.00), for any single infraction of the rules and regulations of the
Project Board or any breach of this Project Declaration provided that
any suspension of such voting rights or restriction from use of the
Project Common Area or portions thereof or monetary penalty shall be
made only after hearing by the Project Board upon fourteen (14) days'
notice given in the manner prescribed in Article 25.3 of this Project
Declaration. Said notice shall state the exact violation of rules for
which discipline is proposed and the facts supporting the violation.
The Owner shall have the right to be represented by counsel.
Notwithstanding anything to the contrary herein contained, the Project
Board shall not have the power to cause a forfeiture or abridgment of
an Owner's right to the full use and enjoyment of his individual
Residential Lot, including access thereto over and across the Project
Common Area, on account of such Owner's failure to comply with the
provisions of the Project Documents adopted by the Project Board,
except when such loss or forfeiture is the result of a judgment of a
court or a decision arising out or arbitration or on account of a
foreclosure or under the power of sale herein granted for failure of
the Owner to pay the assessments levied pursuant to the provisions
hereof.
ARTICLE 24
RIGHTS OF LENDERS
Any Owner may encumber his Residential Lot by Deed of Trust or
Mortgage. A breach of any of the provisions of this Project Declaration
shall not affect or impair the lien or charge of any bona fide deed of
trust or Mortgage made in good faith and for value encumbering any
Residential Lot. It is intended that any loan to facilitate the resale
of any Residential Lot after foreclosure is a loan made in good faith
and for value and entitled to all of the rights and protection afforded
to other Lenders. All liens created by this Project Declaration,
including, but not limited to, any Project Assessments for the payment
of money, shall be subordinate to the lien created by any such bona
fide First Deed of Trust or First Mortgage given to any Lender. Any
Lender who comes into possession of a Residential Lot pursuant to
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the remedies provided in the First Mortgage or First Deed of Trust,
other than by deed in lieu of foreclosure, shall take the Residential
Lot free of any claims for unpaid assessments or charges against such.
Residential Lot which accrue prior to the time such Lender comes into
possession of the Residential Lot, but such claim shall remain the
responsibility of the former Owner. It is specifically
understood, however, that a Lender is liable for all such Project
Assessments during the actual period of time the Lender holds title to
a Residential Lot. This liability for Project Assessments on the part
of the Lender is on a pro rata basis with the pro rata period
commencing on the date the Lender acquires title and ending upon resale
or other transfer by the Lender, whereupon the liability will attach to
the transferee. No amendment to this Project Declaration shall affect
any Lender to the extent it defeats the Lender's then priority position
with respect to its lien or which would convert the Lender's loan to an
illegal status under such governmental regulations then applicable to
the Lender involved, unless the approval in writing of any such Lender
is obtained. Any amendment to this Project Declaration adopted in
accordance with Article 25.2 shall affect all Lenders, provided that
unless seventy-five percent (75%) of the Lenders holding First Deeds of
Trust or Mortgage liens on the Residential Lots have given their prior
written approval, the Owners shall not be entitled to:
(a) Change the pro rata interest or obi igations of any. Residential
Lot for purposes of -levying assessments and charges, al-locating
distributions of hazard insurance proceeds or condemnation awards, and
determining shares of the common elements and proceeds of the Project;
(b) By act or omission, seek to abandon, partition, subdivide,
encumber, sell or -transfer the Project Common Area; nor
(c) Make amendment to this Declaration or to the By-Laws of the
Association, which would change the percentage interest of the Owners
in the Project, or to amend Article 9.1.12 to this Decla-ration,
relating to termination of professional management, or Ar-ticle 9.2.5
relating to the proceeds of hazard insurance.
In addition to the foregoing, the consent of seventy-five percent (75%)
of the Lenders holding First Deeds of Trust or Mortgage liens on the
Residential Lots shall be required to add or amend any material
provisions of this Project Declaration which establish, provide for,
govern, or regulate any of the following:
(a) Voting;
(b) Assessments, assessment liens, or subordination of such liens;
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(c). Reserves for maintenance, repair, and replacement of the Project
Common Area;
(d) Insurance or Fidelity Bonds;
(e) Rights to use of the Project Common Area;
(n) Responsibility for maintenance and repair of the several portions
of the Project;
(g) Expansion or contraction of the Project or the addition,
annexation, or withdrawal of property to or from the Project;
(h) Boundaries of any Residential Lot;
(i) The interests in the Project Common Area;
(j) Convertibility of Residential Lots into Project Common Area or of
Project Common Area into Residential Lots;
(k) Leasing of Residential Lots;
(l) Imposition of any right of first refusal or similar restriction on
the right of a Residential Lot Owner to sell, transfer, or. otherwise
convey his or her Residential Lot;
(m) Any provisions which are for the express benefit of mortgage
holders, eligible mortgage holders, or eligible insurers or guarantors
of First Mortgages on Residential Lots.
An additional or amendment to this Project Declaration shall not be
considered material if- it is for the purposes of correcting technical
errors or for clarification only. Any Lender who receives a written
request to approve additions or amendments who does not respond within
thirty (30) days, shall be deemed to have approved such addition or
amendment.
Because of its financial interest in the Project, a Lender may appear
at meetings of the Project Members and of the Project Board to present
objections if violations of this Project Declaration have not been
remedied. A Lender is authorized to furnish information to the Project
Board concerning the status of any loan encumbering a Residential Lot.
The Project Board shall give notice to a Lender as defined in this
Article who requests such notice of any default by the Owner of such
Owner's obligations under the Project Documents which is not cured
within sixty (60) days and on the following matters:
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(a) Any condemnation loss or any casualty loss which affects a material
portion of the Prdject or any Residential Lot encum-bered by a mortgage
held by such Lender;
(b) Any delinquency in the payment of assessments or charges owed by an
Owner of a Residential Lot encumbered by a Mortgage held by such Lender
which remains uncured for a period of sixty
(60) days;
(c) Any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Project Association; and
(d) Any proposed action which would require the con-sent of Lenders as
provided in Article 25.2.
ARTICLE 25
GENERAL PROVISIONS
25.1 Waiver. Failure to enforce any provision of this Project
Declaration or any waiver of any breach shall not constitute a waiver
of that or any other provision or any future breach, or of the future
right to enforce that or any other provision.
25.2 Amendments. This Project Declaration may be amended by an
instrument in writing, signed and acknowledged by the President and
Secretary of the Project Board after approval of the amendment at a
meeting of the Community Members duly called for such purpose.
The approval of the amendment shall require the affirmative vote or
written consent of (a) at least seventy-five (75%) percent of the Class
A Members; and (b) at least seventy-five (75%) percent of Class B
Members. Notwithstanding the foregoing, the percentage of a quorum or
the voting power of the Project Association or of Project Members other
than the Developer necessary to amend a special clause or pro-vision of
this Project Declaration, shall not be less than the prescribed
percentage of affirmative votes required for action to be taken under
the clause or provision. If a two (2) class voting structure is no
longer in effect because of the conversion of Class B Members to Class
A Members, any amendment of this Project Declaration shall require the
affirmative vote or written consent of (a) at least seventy-five (75%)
percent of the total voting power of the Project Association; and (b)
at least seventy-five (75%) percent of the voting power of the Project
Association excluding the voting power held or controlled by the
Developer. The amendment shall become effective upon the recordation in
the Office of the County Recorder of San Diego County, California; but
no such amendment shall affect the right of the holder of any mortgage
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or deed of trust recorded prior to the recordation of the amendment,
unless approved in accordance with Article 24.
25.3 Notices. Unless otherwise provided in the Project By-Laws or in
this Project Declaration, any notice permitted or required to be
delivered as provided in this Project Declaration may be delivered
either personally or by mail. If delivery is made by mail, such notice
shall be deemed to have been delivered to a person twenty-four (24)
hours after a copy of it was deposited in the United States mail,
post-age prepaid, certified or registered, addressed to such person at
the address given by him to the Project Association for the purpose of
such service of notice. Such address may be changed from time to time
by written notice delivered to the Project Association in accordance
with the foregoing.
25.4 Attorneys Fees. In the event an attorney is engaged by the Project
Board or the enforcement or defense of any of the provisions of this
Project Declaration, then the Project Board shall be entitled to
recover from the adverse party to the controversy a reason-able sum for
attorneys fees so incurred and the costs incurred and such costs and
attorneys fees shall constitute a lien on the Residential Lot.
25.5 Subordination of Project Declaration. This Project Declaration
shall be subject and subordinate to all of the covenants, conditions,
restrictions, and provisions of the Community Declaration.
25.6 Interpretation - Conflicts. As used in this Project Declaration,
the masculine gender shall include the feminine and the singular number
shall include the plural, as the context may require. The titles or
headings of the Articles of this Project Declaration are not a part of
it and shall have no effect upon the interpretation of any of its
provisions.
In the case of any conflict with the Project Articles and/or the
Project By-Laws and this Project Declaration, this Project Declaration
shall control.
25.7 Severability of Provisions. The provisions of this Project
Declaration shall be deemed independent and severable, and the partial
or complete invalidity or unenforceability of any provision shall not
affect the validity or enforceability of any other provision.
25.8 Binding on Successors. The provisions of this Project Declaration
shall bind and run with the property and shall inure to the benefit of,
and be binding upon, the heirs, legatees, devisees, executors,
administrators, guardians, conservators, successors, successors in
interest, purchasers, lessees, encumbrances, donees, grantees,
mortgagees, lienors, and assigns of and from each Owner, and each
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person having or acquiring any right, title or interest in the Project
or any portion thereof.
25.9 Duration of Restrictions. This Project Declaration shall terminate
and its provisions shall be of no further effect upon the expiration of
sixty (60) years from the date of the recordation of this Project
Declaration.