HomeMy WebLinkAboutTRACT 11935_ALLERD CONDOS111111111 lill 11111111111111111111111111 III III lill
*NEW FILE*
Tract 11935
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MESTRE GREVE ASSOCIATES
CONSULTING ENGINEERS
di
October 20, 1983
Mr. William B. Scott, Jr.
THE DOUGLAS ALLRED COMPANY
Lion Plaza
1660 N. Hotel Circle Drive
Suite 200
San Diego, CA 92108
SUBJECT: NOISE STUDY FOR TRACT-11935, NEWPORT BEACH
Dear Mr. Scott,
Please find'enclo�sed two copies of our noise study for your Harbor Woods
Project, Tract 11935'in Newport Beach. This study addresses the noise
Conditions of Approval established by the City for this project. The deck
enclosures for decks facing San Miguel will reduce noise levels to meet City
standards, and interior noise levels, with windows closed, will also meet
City standards.
If you have any questions please do not hesitate to call.
Yours Very Truly,
MESTRE GREVE ASSOCIATES
Vincent Mestre, P.E.
200 NEWPORT CENTER DRIVE, SUITE 213 0 NEWPORT BEACH, CALIFORNIA 92660 0 1714) 760.0891
NOISE ANALYSIS FOR
HARBOR WOODS TRACT 11935
in the .
CITY OF NEWPORT BEACH
prepared by
MESTRE GREVE ASSOCIATES
October 18, 1983
I. INTRODUCTION
The purpose of this noise study is to determine the acoustical design
requirements for the Harbor Woods residential development in order to ensure
compliance with the noise standards of the City of Newport Beach. The Tract
is situated at the intersection of San Miguel Drive and Pacific View Drive.
II. NOISE CRITERIA
The City of Newport Beach establishes outdoor and indoor noise limits
for residential land -uses. The outdoor noise standard for exterior living
areas is 65 CNEL. The indoor noise standard is 45 CNEL. CNEL or Community
Noise Equivalent Level is a 24 hour time weighted annual average noise level.
Time weighted refers to the fact that noise that occurs during certain
sensitive time periods is penalized for occuring at these times. The evening
time period (7 PM to 10 PM) penalizes noises by 5 db while nighttime (10 PM
to 7AM) noises are penalized by 10 db. These time periods and penalties were
selected to reflect peoples sensitivity to noise as a function of activity.
The noise criteria used by the City of Newport Beach is commonly used
throughout the State of California and is used by the County of Orange for
land use planning purposes. The Conditions of Approval relating to noise are
attached for reference here.
The 65 CNEL criteria used by the City is essentially equivalent to the
65 DNL criteria used by HUD.
III. THE NOISE MODEL
The noise levels projected in the next section of this report were
computed using the Highway Noise Model published by the Federal Highway
Administration ("FHWA Highway Traffic Noise Prediction Model," FHWA-RD-77-
108, December 1978). The FHWA Model uses traffic volume, vehicle mix, vehicle
speed, and roadway geometry to compute the "equivalent noise level." A
computer code has been written which computes equivalent noise levels for
each of the time periods used in CNEL. Weighting these noise levels and
summing them results in the CNEL for the traffic projections used. CNEL
contours are found by iterating over many distances until the distance to 60,
•65, and 70 CNEL contours are found.
Mitigation through the design and construction of a noise barrier (wall,
berm, or combination wall/berm) is the most common way of alleviating traffic
noise impacts. The effect of a noise barrier is critically dependent on the
geometry between the noise source and the reciever. A noise barrier effect
occurs when the "line of sight" between the source and reciever is penetrated
by the barrier. The greater the penetration the greater the noise reduction.
IV. ULTIMATE NOISE LEVELS
The projected ultimate traffic volume for San Miguel Road is 22,000 ADT,
and 2,500 ADT for Pacific View Drive (data obtained from Rich Edmonston of
the City of Newport Beach). .The vehicle speeds assumed were 40 MPH for
automobiles, medium trucks and heavy trucks. Arterial highway truck mixes
assumed in the analysis were determined by the County of Orange in extensive
24 hour counts, and are shown in Table 1 (Orange County Traffic Census 1975,
Compiled by EMA Development Traffic Engineering).
TABLE 1
TRAFFIC MIX FOR ARTERIALS
---------------------------------------
PERCENT OF ADT
VEHICLE TYPE DAY EVENING NIGHT
---------------------------------------
Automobile 75.51 12.57 • 9.34
Medium Truck 1.56 0.09 0.19
Heavy Truck 0.64 0.02 0.08
----------------------------------------
Using the assumptions presented above, the ultimate noise levels were
computed. The results are reported here in Table 2 in the form of distances
to the 60, 65, and 70 CNEL contours. These contour distances do not include
the effect of any topographic shielding of roadway noise that may be present.
Figure 1 shows a plot of these contours on a site plan. The units closest to
San Miguel may be exposed to noise levels in excess of 65 CNEL and therefore
require some mitigation in their design to meet City standards.
Existing legislation is expected to reduce noise levels from future
motor vehicles by 2 dBA or more. This reduction is not included in these
projections.
FIGURE 1 65 CNEL CONTOUR
a
TABLE 2
CNEL NOISE LEVELS FOR ULTIMATE
TRAFFIC CONDITIONS
------------------------------------------------------------------
DISTANCE TO CNEL CONTOUR
ROADWAY SEGMENT FROM ROADWAY CENTERLINE (FEET)
60-CNEL 65-CNEL 70-CNEL
------------------------------------------ ----------------------
San Miguel Drive 195 90 42
Pacific View Drive 46 21 10
-------------------------------------------------------------------
V. MITIGATION
The residential units that are part of this project do not have any
ground floor yard areas. The first floor of the units is located above the
garage and have a deck area that serves as the outdoor use area. The second
floor of the units also have small deck areas. It is these deck areas that
must be mitigated for the two buildings that have decks that have line of
sight with San Miguel. The building plans show that the deck areas which
have line of sight will be enclosed with glass sections on top of wood framed
stucco walls. The building plans show these barriers extending more than 6
feet above the deck floor which is more than adequate to reduce noise levels
to less than 65 CNEL on the deck area. It is important to include this
mitigation on all decks of the two builidngs on San Miguel which have line
of sight with San Miguel.
VI. INTERIOR NOISE LEVELS
The closest building o San Miguel lies 77 feet from the centerline.
This means that the CNEL at this worst location is 66 CNEL. To comply with
the interior noise standard of 45 CNEL, the buildings must provide sufficient
outdoor to indoor building attenuation 'to reduce the noise levels down to
acceptable levels. This means that the required outdoor to indoor noise
reduction for these buildings is 21 dB.
For attenuation requirements greater than 20 dB it is usually necessary
to demonstrate the attenuation achieved with a given building design through
quantitative engineering calculations. The City imposes the condition that
any attenuation requirements greater than 20 dBA be demonstrated in this
manner.
The outdoor to indoor noise reduction characteristics of a building are
determined by combining the transmission loss of each of the building
elements which make up the building. Each building element has a
characteristic transmission loss. For residential units the critical building
elements are the roof, walls, windows, doors, attic configuration and
~insulation. The total noise reduction achieved is dependent on the
transmission loss of each element and the area of that element in relation to
the total surface area of the room. Room absorption is the final factor used
in determining the total noise reduction.
A
The most direct way of computing the total noise reduction is through
the use of the methodology published by the Federal Highway Administration in
their report entitled, "Insulation of Buildings Against Highway Noise," (FHWA
TS 77-202). This methodology consists of applying a single number rating
concept which is specifically weighted for highway noise. This is similiar to
the more traditional Sound Transmission Class (STC) rating except that STC is
not specifically designed for highway noise. That is, the Exterior Wall Noise
Rating scale (EWNR) used in the FHWA methodology accounts for the frequency
components of highway noise. The FHWA has published EWNR data for the noise
reduction characteristics of various building elements and construction
techniques. This noise attenuation data is based upon empirically derived
data on construction materials in practice today. -
General construction specifications for this project that are utilized
in estimating the outdoor to indoor noise reduction are given below. The
pertinent construction details were obtained from the architectural drawings.
1. Roof construction incorporates
and gysum drywall on the interior
insulated. Roofs are sloped.
composition shingles on the exterior
surface. Attic spaces are vented and
2. Exterior walls have a 7/8 inch stucco finish and 1/2 inch gysum
drywall on the interior. All exterior walls are insulated.
3. Windows are aluminum sliders with plate glass with a minimum window
thichness of 1/8 inch.
To assess compliance of the project with the City's interior noise
standard, a worst case room was selected for analysis. Second story rooms are
most exposed to noise and was used here to check the interior/exterior noise
reduction. In general, the worst case room was a corner room with the
greatest percentage of window area. Corner rooms have more exterior surface
area for noise infiltration. Rooms with large window area have the least
noise reduction, because windows typically are acoustically the weakest part
of the structure. Table 3 displays the building element areas and EWNR values
(as reported by the FHWA) used to compute the total noise reduction. A plan
1, second story bedroom (bedroom 2) was used for this worst case analysis.
This room has the most window area (a window and a sliding glass door) and is
a corner room. The floor plan for this room is shown in Figure 2.
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FIGURE 2 FLOOR PLAN FOR PLAN 1.
,. i
TABLE 3
DATA USED TO COMPUTE THE EXTERIOR TO INTERIOR NOISE REDUCTION
BUILDING AREA EWNR TOTAL NOISE
ELEMENT (SQ. FT.) (DBA) REDUCTION
PLAN 1 - Second Story Bedroom 2 (Corner Room)
Sliding Glass Door 34.0 26
Window 25.0 22
Ceiling 237.5 35
Wall (less window) 193.0 40 25.6
The results in Table 3 show that the total noise reduction for each
building is greater than 25* dBA for highway noise with windows closed.
Comparing this value with the required 21 dBA indicates that the homes in
this project will meet the noise standards established by the City of Newport
Beach with windows closed. Adequate ventilation with windows closed must be
provided. A "summer switch" on the heating unit will normally provide the
required ventilation. This switch allows use of the heater fan to circulate
the air with fresh air. The system shall be capable of providing two air
exchanges per hour, 1/5 of the air supply shall be taken from the outside.
The fresh air shall be provided via a vent with with at least 10 feet of
flexible fiberglass ducting or at least 5 .feet in a 90 degree bend.
Q I U t
33.', That prior to the occupancy of any unit, a
qualified acoustical engineer, retained by .the
dity at the applicant's expense shall demonstrate
to the satisfaction of the Planning Director that
the noise impact from adjacent roads on the
project does not exceed 65 db CNEL for outside
living areas and the requirements of law for
interior spaces (for, future winter ,traffic
conditions).
57� Prior to the issuance of building permits for each
of the planned units, an acoustical engineering
study shall be performed, based on actual pad,
.property and roadway grades and building locations
and orientations to assure that the exterior
building shells of each structure will be
sufficient to reduce existing and future noise
levels to'an acceptable intensity.
NOISE CONDITIONS OF APPROVAL
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CITY OF N E W P O RT BEACH RECEIPT
e,n NEWPORT BEACH. CALIFORNIA 92663
No. 41342
DATE /o. 1•l.
RECEIVED
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DEPARTMENT
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1 , i'f ..
May 5, 1983
MINUTES
x
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m S. _ y. > City of Newport Beach Tyttce / I93S
anII CALL INDEX
12. That in order to reduce adverse impacts of the
proposed project, all feasible mitigation measures
discussed in the environmental document have been.
incorporated into the proposed project. Specific
economic, social or other considerations make
infeasible any other potential mitigation measures
or alternative to the proposed project.
13. That the mitigation measures have been
incorporated into the proposed project and are
expressed as conditions of approval.
14. That development on this site is not exempt from
the provisions of affordable housing relative to
low and moderate income housing units as defined
by the Housing Element of the City of Newport
Beach General Plan.
15. That the approval of this permit shall advise this
applicant and any successor in interest that the
provision of affordable housing units on this site
is feasible and needs to be assumed in any sale,
lea e, trade or other use of said property.
16. That it is not necessary to provide affordable
housing related to this application on another
site.
17. That the provisions of affordable housing related
to this site may be provided at an off -site
location and meet the intent of City Policy.
CONDITIONS:
1. That a final map be filed.
2. That all improvements be constructed as required
by Ordinance and the Public Works Department.
3. That a standard subdivision agreement and
accompanying surety be provided in order to
guarantee satisfactory completion of the public
improvements if it is desired to record a tract
map or obtain a building permit prior to
completion of the public improvements.
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May 5, 1983 MINUTES
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of Newport Beach
4. That each dwelling unit be served with an
individual water service and sewer lateral
connection to the public water and sewer systems
unless otherwise approved by the Public Works
Department.
5, That the on -site parking circulation and
Pedestrian circulation systems be subject to
further review by the Traffic Engineer.
6. That the design of the private streets and drives
conform with the City's Private Street Policy
(L-4), except as approved by the Public Works
Department. The basic right-of-way width shall be
a minimum of 32 feet. The location, width,
configuration, and concept of the private street
and drive system shall be subject to further
review and approval by the City Traffic Engineer.
7. That the California Vehicle Code be enforced on
the private streets and drives, and that
delineation acceptable to Police Department and
Public Works Department be provided along the
sidelines of the private streets and drives.
S. That the Final Map, CCiR's and Final Subdivision
Report note that future installation of control
gates at the entrances is prohibited.
9. That easements for public emergency and security
ingress, egress and public utilities purposes on
all private streets and drives be dedicated to the
City and that all easements be shown on the Final
Tract Map, All easements shall be a minimum of 10
feet wide.
10. That all vehicular access rights to San Miguel
Drive be released and relinquished to the City of
Newport Beach except at the one entrance as
approved by the Public Works Department.
11. That landscape plans shall be subject to review
and approval of the Parke, Beaches, and
Recreation Department and Public Works Department
and that appropriate site distance shall be
provided at both drives for bicycles on the
sidewalks.
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INDEX
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MINUTES
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May 5, 1983
of Newport Beach
ji
12. That the deteriorated and displaced sections of
sidewalk be reconstructed along the San Miguel
Drive and Pacific View Drive frontages under an
encroachment permit issued by the Public Works
Department.
13. That street, drainage and utility improvements be
shown on standard improvement plans prepared by a
licensed civil engineer.
14. That a hydrology and hydraulic study be prepared
and approved by the Public Works Department, along
with a master plan of water, sewer and storm drain
facilities for the on -site improvements prior to
recording of the final map. Any modifications or
extensions to the existing storm drain, water and
sewer systems shown to be required by the study
shall be the responsibility of the developer.
15. That the proposed private 18 inch storm drain be
relocated and a new private easement conveyed
prior to issuance of any building permits for
structures over the existing facilities.
16. That a letter be provided from the Utilities
Department stating that adequate sewer capacity
exists in the existing mains for the proposed
development. This letter must be provided to the
Public Works Department prior to issuance of any
building permit.
17. The grading and landscaping shall be done to
provide sight 'distance in accordance with City
Standard Drawing 110-L at driveways.
18. Developer shall be responsible for 50% of the cost
of the traffic signal at the intersection of
Pacific View Drive and San Miguel Drive. These
monies shall be deposited with the City prior to
occupancy.
19. Development of the site shall be subject to a
grading permit to be approved by the Building and
Planning Departments.
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INDEX
J
May 5# 1983
MINUTES
of Newport Beach
INDEX
20. That the grading plan shall include a complete
plan for temporary and permanent drainage
facilities, to minimize any potential impacts from
silt, debris, and other water pollutants.
21. The grading permit shall include a description of
haul routes, access points to the site, watering,
and sweeping program designed to minimize impact
of haul operations.
22. An erosion, siltation and dust control plan, if
required, shall be submitted and be subject to the
approval of the Building Department and a copy
shall be forwarded to the California Regional
Water Quality Control Board, Santa Ana Region.
23. The velocity of concentrated run-off from the
project shall be evaluated and erosive velocities
controlled as part of the project design.
24. That grading shall be conducted in accordance with
plans prepared by a Civil Engineer and based on
recoo"�ndations of a soil engineer and an
engineiring geologist subsequent to the completion
of a comprehensive soil and geologic investigation
of the site. permanent reproducible copies of the
"Approved as Built" grading plans on standard size
shoats shall be furnished to the Building
Department.
25. A landscape and irrigation plan for the project
J shall be prepared by a licensed landscape
Z;architect. The landscape plan shall integrate and
Z0 phase the installation of landscaping with the
"J '1 proposed construction schedule. (Prior to the
$ occupancy of any structure, the licensed landscape
architect shall certify to the planning Department
that the landscaping has been installed in
c) kJ accordance with the prepared plan).
26, The landscape plan shall be subject to the review
of the public Works Department, Parks, Beaches and
Recreation Department and approval of the Planning
Department.
27. The landscape plan shall include a maintenance
program which controls the use of fertilizers and
pesticides.
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5-3
May 5, 1983
MINUTES
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of Newport Beach
ROIL CALL I III Jill I INDEX
28. The landscape plan shall place heavy emphasis on
the use of drought -resistant native vegetation and
be irrigated with a system designed to avoid
surface runoff and over -watering.
29. The landscape plan shall place heavy emphasis on
fire -retardant vegetation.
30. Street trees shall be provided along the public
streets as a part of the landscape plan and shall
be approved by the Public Works Department and the
Parks, Beaches and Recreation Department.
31. Landscaping shall be regularly maintained free of
weeds and debris. All vegetation ,shall be
regularly trimmed and kept in a healthy condition.
32; Deleted. AP005D � MY COUNU C —���SSe�ee���
33. That prior to the occupancy of any unit,
qualified acoustical engineer, retained by the
City at the applicant's expense shall demonstrate
to the satisfaction of the Planning Director that
the noise impact from adjacent roads on the
project does not exceed 65 db CNEL for outside
living areas and the requirements of law for
interior spaces (for future winter traffic
conditions).
34. That any roof top or other mechanical equipment
shall be sound attenuated in such a manner as to
achieve a maximum sound level of 55 dBA at the
property line. Any mechanical equipment and
emergency power generators shall be screened from
view.
35. The Fire Department access to the site and all
building shall be approved by the Fire Department.
36. That all on -site fire protection (hydrants and
Fire Department connections) shall be approved by
the Fire and Public Works Departments.
37. Prior to the occupancy of any buildings, a program
for the sorting of recyclable material from other
solid wastes shall be developed and approved by
the Planning Department.
-56-
�ZNVSSK)NERS
City
May 5, 1983
MINUTES
of Newport Beach
INDEX
38. A qualified archaeologist or paleontologist shall
evaluate the site prior to commencement of
construction activities, and that all work on the
site be done in accordance with the City's Council
Policies K-5 and K-6.
39. Final design of the project shall provide for the
incorporation of water -saving devices for project
lavatories and other water -using facilities.
40. A dust control plan shall be prepared for the
project, and shall be submitted and subject to
approval by the Building Department prior to
grading. The plan shall specifically address
control of fugitive dust during construction,
including such measures as watering the site for
general dust control, containing excavated soil
on -site until it is hauled away, and periodically
washing or sweeping adjacent streets as necessary
to remove accumulated material.
41. Prior to the issuance of the grading permit, the
design engineer shall review and state that the
discharge of surface runoff from the project will
be pert;rmed in a manner to assure that increased
peak flows from the project will not increase
erosion immediately downstream of the system.
This report shall be reviewed and approved by the
Planning and Building Departments.
42. The required erosion control measures shall be
done on any exposed soils within thirty days after
grading or as approved by the Grading Engineer.
43. Control of infiltration to the groundwater system
shall be provided as part of the project design.
44. All proposed developments shall provide for weekly
vacuum sweeping of parking areas.
45. Prior to issuance of the grading permit, the
project civil engineer shall provide evidence to
the satisfaction and approval of the Director of
Public Works that the established one -site grade
and building elevations on the north and northeast
sides of the project site provide adequate safety
from potential inundation as shown in the "Big
Canyon Reservoir Inundation Study" for the Public
Safety Element of the Newport Beach General Plan.
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:5-5-
J
MINUTES
May 5, 1983
of Newport Beach
46. That all on -site drainage, connections to the
existing storm drain system and any alteration of
existing surface drainage patterns across or around
the site shall be reviewed and approved by the
Building and Public works Departments.
47. That -the streets widths shall meet City of Newport
Beach requirements.
48. That prior to the approval of the Final Tract Map,
the applicant shall dedicate land or pay in -lieu
fees in accordance with the Park Dedication
ordinance.
49.- A minimum of (10%) ten percent of the units to be
developed on this site or an equal number of
off -site units shall be "affordable units" as
defined by the City's Housing Element.
50. That prior to the recordation of the final tract
map an agreement shall be executed that guarantees
the provisions of "affordable units" on -site or
off -site in a manner and in a reasonable time
frame related to the construction of other on -site
units. Said agreement shall be reviewed by the
Planning Director and City Attorney's Office and
approved by the City Council.
51. Deleted.
52. That in order to reduce any adverse environmental
effects of development of this site, preference in
the rental or sale of the "affordable units" shall
be given to those persons employed in the City of
Newport Beach or residents of the City of Newport
Beach in a manner to be approved by the City
Planning Director and City Attorney.
53. Deleted.
54. That all mechanical equipment and trash areas
shall be screened from adjacent roads and
adjoining properties.
55. That all construction employees shall park their
vehicles on -site.
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May 5, 1983
MINUTES
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of Newport Beach
56. That all proposed signs shall be in conformance
with the provision of Chapter 20.06 of the Newport
Beach Municipal Code and shall be approved by the
City Traffic Engineer if located adjacent to the
vehicular ingress and egress,
57. Prior to the issuance of building permits for each
of the planned units, an acoustical engineering
study shall be performed, based on actual pad,
property and roadway grades and building locations
and orientations to assure that the exterior
building shells of each structure will be
sufficient to reduce existing and future noise
levels to an acceptable intensity.
58. Deleted.
59. Prior to the issuance of building permite, the
Fire Department shall review the proposed plans
and may require automatic fire sprinkler
protection.
60. All buildings on the project site shall be
equipped with fire suppression systems approved by
the Fire Department.
61. That the lighting system shall be designed and
maintained in such a manner as to conceal the
light source and to minimize light spillage and
glare to the adjacent residential uses. The plans
shall be prepared and signed by a Licensed
Electrical Engineer; with a letter from the
Engineer stating that, in his opinion, this
requirement has been met.
62. Prior to beginning grading activities, the
Applicant shall construct an appropriate temporary
barrier along the south property boundary to
screen the adjacent residential uses from the
construction activities. This barrier shall be
approved by the Planning Department prior to its
construction and shall be removed upon completion
of construction or at some other time approved by
the Planning Department.
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May 5, 1983
MINUTES
Motion
All Ayes
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XIX
IX
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of Newport Beach
63. Upon removal of the temporary construction barrier
along the south property boundary, landscaping
prescribed by the approved landscape plan shall be
installed no later than 30 days after removal of
the barrier.
64. Landscaping along the southern side of the project
site shall be designed to provide visual privacy
between the proposed development and existing
residential uses along the south property
boundary. This purpose shall be considered in the
required review and approval of the landscape plan
by the Planning and Parks, Beaches and Recreation
Departments.
65. Improvements associated with the sound attenuation
requirements on the perimeter of the project site,
including a noise wall and/or landscaping, shall
be reviewed and approved by the City Planning
Department prior to final design.
USE PERMIT NO. 3037
Motion was made for approval of Use Permit No. 3037,
subject to the following findings and conditions, which
MOTION CARRIED:
FINDINGS:
1. That each of the proposed units has been designed
as a condominium with separate and individual
utility connections.
2. The project will comply with all applicable
standard plans and zoning requirements for new
buildings applicable to the district in which the
proposed project is located at the time of
approval.
3. The project lot size conforms to the Zoning Code
requirements in effect at the time of approval.
4. The project is consistent with the adopted goals
and policies of the General Plan.
IM:
INDEX
'59
presented.
The City Clerk reported that after the
printing of the agenda, a letter was received
from Canyon Crest Estates Homeowners
Association, recommending certain conditions
of approval for the subject development.
The City Manager advised that the staff was
proposing two additional conditions of
appro as follows:
n"32 Prior to issuance of any building
permits authorized by the approval of
this project, the applicant shall
deposit with the City Finance Director
the sum proportional to the percentage
of future additional traffic related to
the project in the subject area, to be
used for the.construction of a sound
attenuation barrier on Jamboree Road in
the Eastbluff area and East Coast
Highway in the Irvine Terrace area."
Volume 37 — Page 179
(IwIT`! OF NEINP0RT L-ACI;
COUNCIL MEMBERS MINUTES
\CALLO
oy�`PJune 13, 1983sROLL � � iKinvv
o, that language be added to Condition No.
U/P 3037
25 o require:
"That landscaped screening between the
projects be provided to the satisfaction
of the Planning Director in accordance
with the plan which has been agreed to
by the developer."
Douglas Allred, Developer, addressed the
Council and briefly described the project.
He advised that he agreed with the
recommendations of the Planning Commission,
-and has also responded to the concerns of the
Canyon Crest Estates Homeowners Association.
A landscaped concept plan for the townhomes
was exhibited and explained by Mr. Allred.
With respect to Condition No. 32, Mr. Allred
commented that they are already making a
_
significant contribution by virtue of the
October 14, 1983
THE DOUGLAS ALLRED COMPANY
Mr. Fred Talarico, Environmental
Coordinator
City Of Newport Beach
P. 0. Box 1768
Newport Beach, California 92663-3884
Ref: Harbor Woods Tract Map'#11935
Dear Fred:
As required by condition #37 of the above referenced tract map,
please be advised that we will be including an extra trash bin in
each trash enclosure for the purpose of handling recyclable material.
The enclosed detail of a three bin trash enclosure depicting the
extra bin (for two buildings) was suggested by Dewey Rubbish Service.
If you have any comments or questions, don't hesitate to contact me.
Very truly yours,
THE DOUGLAS ALLRED COMPANY
4
William B. Scott, Jr
WBS:lms
cc: Jim Bolton
Enclosure
LION PLAZA
1660 N. HOTEL CIRCLE DR.
SUITE 200
SAN DIEGO, CA 92108
619/299-6760
uuvv� 3 i
0OT 1719$3
R M �._. ENGINEERING, lelb.
Civil Engineers, Planners k Land Surveyors
17961-A COWAN • IRVINE, CALIFORNIA 92714 TEL.(714) 979.7172
Project ALL C—D TR 11735 Sheet of
_ ✓ 81t) `T—M14 �i�Ct,'�rI(1 l: J.N. 697-0/0
Designed by -_' ' (- iJ Date
Checked by
{CaUGQcTE SLAP.
�.;,Pc-'ION A -
IS" WALKWgy
'FoZ15LE SCge90 WA'ILLJ'
GAF Drshrm 2H
t
i
INSIDE
t111 1
FEWc_KLe
rnFrEgla�S
BIrJa�
BIN 1
'jjga- i�-O•
October 14, 1983
THE DOUGLAS ALLRED COMPANY
Mr. Fred Talarico, Environmental
Coordinator
City of Newport Beach
P. 0. Box 1768
Newport Beach, California 92663-3884
Ref: Harbor Woods Tract Map'#11935
Dear Fred:
There will be a weekly program of vacuum sweeping of all parking
areas after the Harbor Woods project is completed. Provisions will
also be included in the CC&R's for the homeowners association to
assume this responsibility when they accept the project.
If you have any comments or questions, don't hesitate to contact me.
Very truly yours,
THE
D/�OUGLAS ALLRED COMPANY
William B. Scott, Jr.
WBS:Ims
cc: Jim Bolton
LION PLAZA
1660 N. HOTEL CIRCLE DR.
SUITE 200
SAN DIEGO. CA 92108
619299-6760
MhdJtU0V\- `,-4
i
4' OCT 171983>-
�\ s'� CALIF. I
l
October 14, 1983
THE DOUGLAS ALLRED COMPANY
Mr. Fred Talarico, Environmental
Coordinator
City of Newport Beach
P. 0. Box 1768
Newport Beach, California 92663-3884
Ref: Harbor Woods Tract Map #11935
Dear Fred:
To satisfy condition #55 of Tract Map #11935, all construction
employees will park their vehicles on site during construction of
the project.
If you have any comments or questions, don't hesitate to contact
me.
Very truly yours,
THE DOUGLAS ALLRED COMPANY
/,a4,
William B. Scott, Jr,
WBS:Ims
cc: Terry Footer
Jim Bolton
LION PLAZA
1660 N. HOTEL CIRCLE DR.
SUITE 200
SAN DIEGO, CA 92108 n
619299-6760
S,
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6 /CHA I N L INK FENCE W/U RED F413RtG
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December 15, 1983
THE DOUGLAS ALLRED COMPANY
Ms. Sheri Vander Dussen
Planning Department
City of Newport.Beach
3300 Newport Blvd.
Newport Beach, California 92663
Re: Harbor Woods
Dear Ms. Vander Dussen:
We understand that the issuance of a grading permit will not
give us vested rights in the above referenced project. We
also understand that no building permits will be issued until
the final sub -division map is recorded and all the remaining
conditions of approval are satisfied, namely condition #50
and #52.
Very truly yours,
THE /�DOOU�UGLAS ALLLREEDD COMPANY
GZ�
William am BB. . SScocott, r.
1� CIW i T aye V14 � sscu-ed �
WBS/cy
LION PLAZA
1660 N. HOTEL CIRCLE DR.
SUITE 200
SAN DIEGO, CA 92108
619/299-6760
r"I
01
r O RECEIVED
i Planning
December 9, 1983 j 6 Decarment
DEC L g 19830-
CITY OF
NEWPORTBEACH
THE DOUGLAS ALLRED COMPANY �_ CALIF.
Ms. Sheri Vander Dussen
Planning Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California
Re: Harbor Woods
Dear Ms. Vander Dussen:
Please refer to item #63 of the City of Newport Beach 'Conditions of
Approval' dated May 5, 1983. As stated "Upon removal of the temporary
construction barrier along the south property boundary, landscaping
prescribed by the approved landscape plan shall be installed no later
than 30 days after removal of the barrier"., The Douglas Allred4Company
will comply with these conditions.
Very truly yours,
THE DOUGLAS ALLRED COMPANY
Weil
Vice President, Construction
JSW/cy
LION PLAZA
1660 N. HOTEL CIRCLE DR.
SUITE 200
SAN DIEGO. CA 92108
619299-6760
,
f '- rryy
t
Recording Requested By
and
When Recorded Return To:
McDONALD, HECHT & SOLBERG
Mr. Alex C. McDonald
1100 Financial Square
600 "B" Street
San Diego, California 92101
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
HARBOR WOODS
(Condominium/Planned Unit Development)
&,qq' 0 loci
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
91.1
Articles 2
91.2
Association 3
91.3
Board or Board of Directors 3
91.4
Boundaries 3
§1.5
Bylaws 3
91.6
Common Area 3
§1.7
Common Expenses 3
3
§1.8
Condominium
91.9
Condominium Building 3
91.10
Condominium Plan 3
§1.11
Condominium Property 3
§1.12
Declarant 4
§1.13
Declaration 4
91.14
Eligible Insurer or Guarantor 4
§1.15
Eligible Mortgage Holder 4
91.16
Exclusive Use Area 4
01.17
FHA 4
4
11.18
Living Unit
91.18
Member of Association 5
91.19
Mortgage 5
91.20
Mortgagee 5
§1.21
Owner 5
5
§1.22
Project
91.23
Recreation Area 5
§1.24
VA 5
ARTICLE II
PROPERTY RIGHTS IN RECREATION AREA 5
92.1
Title to the Recreation Area 5
92.2
Owners' Easements of Enjoyment 6
92.3
Delegation of Use 7
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 7
93.1
Membership 7
93.2
Voting Rights 7
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS
TO ASSOCIATION 8
§4.1
§4.2
§4.3
§4.4
§4.5
94.6
Creation of Lien and Personal Obligation
of Assessments
Purpose of Assessments
Maximum Annual Assessment
Special Assessments
Notice and Quorum for Any
Authorized Under Section
Rate of Assessments
-i-
Action
4.3 or 4.4 10
10
PAGE
§4.7
Date of Commencement of Annual
Assessments; Due Dates
11
94.8
Effect of Non -Payment of Assessments;
Remedies of the Association
11
§4.9
Subordination of the Lien to First
Deeds of Trust and First Mortgages
12
§4.10
Treatment of Monetary Penalty
13
94.11
Estoppel Certificate
13
§4.12
Personal Liability of Owner
13
94.13
Taxation of Association
13
§4.14
Capitalization of Association
13
ARTICLE
V
RESPONSIBILITIES OF MAINTENANCE
14
§5.1
Owner Maintenance of Living Unit
14
§5.2
Owner's Grant of Easements
14
§5.3
Association Maintenance of Common Area
15
95.4
Association Maintenance of Recreation Area
15
§5.5
Association Right of Entry
15
95.6
Association Right to Adopt Rules
15
95.7
Association Right to Grant Permits
16
ARTICLE
VI
ARCHITECTURAL CONTROL
16
ARTICLE
VII
SEPARATION OF INTEREST AND PROHIBITION
OF PARTITION
17
§7.1
Separation of Interest
17
97.2
Prohibition of Partition
17
97.3
Power of Attorney
18
ARTICLE
VIII
RIGHT OF MORTGAGEES
18
ARTICLE
IX
DESTRUCTION OF COMMON AREA, RECREATION
AREA OR LIVING UNITS
19
§9.1
Casualty Destruction of Common Area
19
§9.2
Taking of Common Area
20
99.3
Casualty Destruction of Living Unit
21
99.4
Taking of Living Unit
21
99.5
Taking of Recreation Area
21
99.6
Association Insurance
21
99.7
Mortgagee Approval
23
ARTICLE
X
USE OF LIVING UNITS AND COMMON AREA AS
DESCRIBED IN CONDOMINIUM PLAN
23
910.1
Residential Purposes
23
§10.2
Lease of Condominium
23
§10.3
No Use Causing Loss of Insurance
24
910.4
Pets
24
010.5
Nuisance
24
PAGE
910.6
Sign Control
24
'510.7
Outside Antennae
24
§10.8
Owner Not to Alter Common Area
24
510.9
No Offensive Activity
25
910.10
Power Equipment
25
$10.11
Use of Common Area
25
910.12
Additional Use
26
910.13
Owners Liable for Damage
26
'510.14
Interior Surfaces
27
§10.15
Exclusive Use Areas Appurtenant
27
§10.16
Use of Exclusive Use Areas
27
910.17
No Control Gates
28
910.18
California Vehicle Code
28
ARTICLE XI
GENERAL PROVISIONS
28
$11.1
Enforcement
28
511.2
Severability
28
§11.3
Amendments
28
30
§11.4
Extension of Declaration
911.5
FHA and VA Approval
30
911.6
Encroachment Easement
30
911.7
Litigation
30
§11.8
Annexation of Additional Property
31
911.9
'511.10
Owner Compliance
Special Responsibilities of Association
32
32
§11.11
Limitation of Restrictions on Declarant
33
911.12
Liens Not Invalid
34
SUBORDINATION
AGREEMENT
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
is made this day of r 198_ by DOUGLAS
ALLRED DEVELOPMENT COMPANY, a California corporation (hereinafter
referred to as "Declarant"), with reference to the following
RECITALS:
A. Declarant is the owner of that certain real property
located in the City of Newport Beach, County of Orange, State of
California, which is more particularly described as:
Lot 1 of TRACT NO. 11935 according to Map
thereof No. filed in the Office of the
County Recorder of Orange County, California,
on
(hereinafter called the "Condominium Property").
B. Declarant has or intends to improve the Condominium
Property by establishing thereon thirty (30) condominiums and to
establish a condominium project under the provisions of the
California Condominium Act providing for separate title to Living
Units (hereinafter defined) appurtenant to which will be an undi-
vided 1/30th fractional interest in the Common Area (hereinafter
defined). The Living Unit portion of the condominium project
will consist of three (3) buildings on Lot 1 of contemporary
California architectural style and will consist of four (4) floor
plans of approximately 1,350 square feet, 11250 square feet,
1,115 square feet and 935 square feet, respectively.
C. The development of the Condominium Property is the first
phase of a planned two (2) phase condominium project. The second
phase is intended to be located on Lot 2 of TRACT NO. 11935 and
to consist of twenty (20) condominiums providing for separate
title to Living Units appurtenant to which will be an undivided
-1-
1/20th fractional interest in the Common Area of phase 2. The
Living Unit portion of phase 2 of the condominium project is
intended to consist of two (2) buildings with four (4) floor
plans as described in Recital B above. The Common Area amenities
in each phase will consist of landscaping, parking and driveways.
D. There is no guarantee that all phases will be completed
or that the number of Condominiums or the amenities in each phase
will be developed as described above. The project will be con-
sistent with the overall development plan submitted to the
Veterans Administration and Federal Housing Administration.
E. Each Condominium shall have appurtenant to it a Class A
membership in HARBOR WOODS HOMEOWNERS ASSOCIATION, a California
nonprofit mutual benefit corporation, which will be the manage-
ment body for the overall condominium project.
F. The overall condominium project is also a planned unit
development pursuant to which the Recreation Area (hereinafter
defined) will be owned by the Association for the use and
enjoyment of the owners of Condominiums within the project. The
Recreation Area will be improved with a swimming pool, spa,
clubhouse, bar-b-que, landscaping and a deck.
Before selling or conveying any interests in the Condominium
Property, Declarant desires to subject the Condominium Property
in accordance with a common plan to certain covenants, conditions
and restrictions for the benefit of Declarant and any and all
present and future owners of the Condominium Property.
NOW, THEREFORE, Declarant hereby declares that all of the
Condominium Property described above shall be held, sold and con-
veyed subject to the following easements, restrictions, covenants
and conditions, which are for the purpose of protecting the value
and desirability of, and which shall run with, the Condominium
Property and be binding on all parties having any right, title or
interest therein, or any part thereof, their heirs, successors
and assigns, and shall inure to the benefit of each owner thereof.
ARTICLE I
DEFINITIONS
Section 1.1. "Articles" shall mean
cles of Incorporation of the Association
time be amended.
-2-
and refer to the Arti-
as they may from time to
Section 1.2. "Association" shall mean and refer to HARBOR
WOODS HOMEOWNERS ASSOCIATION, a California Nonprofit Mutual
Benefit Corporation, its successors and assigns.
Section 1.3. "Board" or "Board of Directors" shall mean and
refer to the governing body of said Association.
Section 1.4. "Boundaries" shall mean that in interpreting
deeds and plans, the then existing physical boundaries of a
Living Unit, whether in its original state or reconstructed in
substantial accordance with the original plans thereof, shall be
conclusively presumed to be its boundaries rather than the bound-
aries expressed in the deed or plan, regardless of settling or
lateral movement of the building and regardless of minor variance
between boundaries shown on the plan or deed and those of the
building.
Section 1.5. "Bylaws" shall mean and refer to the Bylaws of
the Association as they may from time to time be amended.
Section 1.6. "Common Area" shall mean and refer to all por-
tions of the Condominium Property not located within a Living
Unit.
Section 1.7. "Common Expenses" shall mean and include the
actual and estimated expenses of operating the Condominium Prop-
erty and Recreation Area and any reasonable reserve for such pur-
poses.
Section 1.8. "Condominium" shall mean and refer to a fee
simple estate in the Condominium Property as defined in Section
783 of the California Civil Code and shall consist of a separate
interest in a Living Unit and an undivided fractional interest as
tenant in common in the Common Area.
Section 1.9. "Condominium Building" shall mean a residen-
tial structure containing condominium Living Units.
Section 1.10. "Condominium Plan" shall mean and refer to
the Condominium Plan or Plans recorded pursuant to California
Civil Code Section 1351 covering the Condominium Property, or
portion thereof, including such amendments thereto as may from
time to time be recorded.
Section 1.11. "Condominium Property" shall mean and refer
to that certain real property located in the City of Newport
Beach, County of Orange, State of California, more particularly
described as:
-3-
Lot 1 of TRACT NO. 11935 according to Map
thereof No. filed in the Office of the
County Recorder of Orange County, California,
on
and such additions as may be annexed thereto as provided in the
Declaration.
Section 1.12. "Declarant" shall mean and refer to DOUGLAS
ALLRED DEVELOPMENT COMPANY, a California corporation, its suc-
cessors and assigns if such successors or assigns should acquire
one or more undeveloped lots in the Condominium Property (or pro-
perty which may be annexed thereto as provided in the Declara-
tion) from Declarant for the -purposes of development.
Section 1.13. "Declaration" shall mean and refer to this
enabling Declaration of Covenants, Conditions and Restrictions as
it may from time to time be amended.
Section 1.14. "Eligible Insurer or Guarantor" shall mean and
refer to --an or governmental guarantor who has requested
notice from the Association of those matters of which such
insurer or guarantor is entitled to notice by reason of the
Declaration or the Bylaws.
Section 1.15. "Eligible Mortgage Holder" shall mean and
refer to a holder of a first Mortgage on a Condominium who has
requested notice from the Association of those matters of which
such holder is entitled to notice by reason of the Declaration or
the Bylaws.
Section 1.16. "Exclusive Use Area" shall mean and refer to
those portions of the Common Area to which an exclusive right to
use is granted to an Owner as shown and described on the Condo-
minium Plan and shall consist of Decks and Entryways.
Section 1.17. "FHA" shall mean and refer to the Federal
Housing Administration.
Section 1.18. "Living Unit" shall mean and refer to those
portions of the Condominium Property shown and described as such
on the Condominium Plan; provided, however, that the following
are not part of any Living Unit: Bearing walls, columns, floors,
roofs, foundations, central heating, central refrigeration and
central air conditioning equipment, reservoir tanks, pumps and
other central services, pipes, ducts, flues, chutes, conduits,
wires and other utility installations, wherever located, except
the outlets thereof when located in the Living Unit.
-4-
Section 1.19. "Member of Association" shall mean and refer
to an Owner as defined in Section 1.22, Article I herein.
Section 1.20. "Mortgage" shall mean and refer to a deed of
trust as well as a mortgage.
Section 1.21. "Mortgagee" shall mean and refer to a benefi-
ciary under or holder of a deed of trust as well as a mortgagee.
Section 1.22. "Owner" shall mean and refer to the record
owner, whether one (1) or more persons or entities, of fee simple
title to any Condominium which is part of the Project, including
contract sellers, but excluding those having such interest merely
as security for the performance of an obligation.
Section 1.23. "Project" shall mean and refer to the entire
real property above described, including all structures and
improvements erected or to be erected thereon, and such additions
as may hereafter be brought within the jurisdiction of the Asso-
ciation.
Section 1.24. "Recreation Area" shall mean and refer to all
real property (including improvements thereon) owned by the Asso-
ciation for the common use and enjoyment of the Owners. The
Recreation Area to be owned by the Association at the time of the
conveyance of the first Condominium in the first phase of the
Project consists of that certain real property located in the
City of Newport Beach, County of Orange, State of California,
more particularly described as:
Lot 3 of'TRACT NO. according to Map
thereof No. filed in the Office of the
County Recorder• of Orange County, California,
on
Section 1.25. "VA" shall mean and refer to the Veterans
Administration.
ARTICLE II
PROPERTY RIGHTS IN RECREATION AREA
Section 2.1. Title to the Recreation Area. Declarant cove-
nants for itself, its successors and assigns that it will convey
fee simple title to the Recreation Area to the Association free
and clear of all encumbrances and liens, except real property
taxes which may be due but are not delinquent, and easements,
covenants, conditions and reservations then of record, including
those set forth on the Final Subdivision Map within which the
-5-
Recreation Area is located and in the Declaration, prior to the
conveyance of the first Condominium in phase 1 to an Owner.
Section 2.2. Owners' Easements of Enjoyment. Every Owner of
a Condom�ini'um shall have a right and easement of ingress, egress
and of enjoyment in and to the Recreation Area which shall be
appurtenant to and shall pass with the title to every such Condo-
minium, subject to the following provisions:
(a) The right of the Association to charge reasonable
admission and other fees for the use of any recreational facility
situated on the Recreation Area.
(b) The right of the Association to suspend the voting
rights and right to use of the recreational facilities by an
Owner for any period during which any assessment against his
Condominium remains unpaid; and for a period not to exceed thirty
(30) days for any infraction of its published rules and regula-
tions, after reasonable written notice and an opportunity for a
hearing before the Board which satisfies the minimum requirements
of Section 7341 of the California Corporations Code as set forth
in the Bylaws.
(c) The right of the Association to dedicate or trans-
fer all or substantially all of its assets, including all or any
part of the Recreation Area to any public agency, authority or
utility for such purposes and subject to such conditions as may
be agreed to by the Members. Notwithstanding any contrary provi-
sions in the Articles or Bylaws, so long as there is any Recrea-
tion Area for which the Association is obligated to provide
management, maintenance, preservation or control, no such dedica-
tion or transfer shall be effective unless an instrument signed
by one hundred percent (100%) of the Members agreeing to such
dedication or transfer, has been recorded.
(d) The right of the Association, in accordance with
the Articles and Bylaws,, to borrow money for the purpose of
improving the Recreation Area and in aid thereof, and with the
assent of two-thirds (2/3) of each class of Members, hypothecate
any or all real or personal property owned by the Association.
(e) Subject to a concomitant obligation to restore,
Declarant and its sales agents, employees and independent con-
tractors shall have:
(i) a non-exclusive easement over the Recreation
Area for the purpose of making repairs to the Recreation Area
or to the Common Area and Living Units, provided access
thereto is otherwise not reasonably available, and for the
-6-
purpose of constructing, marketing and maintaining phases 1
and 2, respectively.
(ii) the right to the non-exclusive use of the
Recreation Area for the purpose of maintaining sales offices
and signs reasonably necessary to market the Condominiums,
for a period of not more than five (5) years after conveyance
of the Recreation Area to the Association, or the sale of all
Condominiums within the Project, whichever is first to occur.
The use of the Recreation Area by Declarant and its agents
shall not unreasonably interfere with the use thereof by the
Class A Members of the Association.
Section 2.3. Delegationof Use. Any Owner may delegate, in
accordance with the Bylaws, his rights of enjoyment to the Recre-
ation Area and facilities thereon to the members of his family,
his tenants or contract purchasers who reside in his Living Unit.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
Section 3.1. Membership. Every Owner of a Condominium
shall be aMember of the Association. Membership shall be appur-
tenant to and may not be separated from ownership of any Condo-
minium. Each Owner is obligated to comply with the Declaration,
Articles, Bylaws and rules and regulations adopted by the Board.
Membership in the Association shall not be transferred, pledged
or alienated in any way, except upon the sale of the Condominium
to which it is appurtenant, and then only to the purchaser of
such Condominium. Any attempt to make a prohibited transfer is
void. In the event the Owner of any Condominium should fail or
refuse to transfer the membership registered in his name to the
purchaser of his Condominium, the Association shall have the
right to record the transfer upon its books and thereupon the old
membership outstanding in the name of the seller shall be null
and void.
Section 3.2. Voting Rights. The Association shall have two
(2) classes of voting membership:
Class A. Class A Members shall be all Owners, with the
exception of Declarant, and shall be entitled to one vote for
each Condominium owned. When more than one person holds an
interest in any Condominium, all such persons shall be Members.
The vote for such Condominium shall be exercised as they among
themselves determine, but in no event shall more than one vote be
cast with respect to any Condominium.
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Class B. Class B Member(s)
entitled to three (3) votes for
Class B membership shall cease
bership on the happening of the
to occur:
shall be Declarant and shall be
each Condominium owned. The
and be converted to Class A mem-
earliest of the 'following
(a) When the total votes outstanding in the Class A
membership equal the total votes outstanding in the Class B
membership; or
(b) Two (2) years following the date of original
issuance by the California Department of Real Estate of the most
recently issued Final Subdivision Public Report for a phase of
development of the Project; or
(c) Four (4) years following the date of original
issuance by the California Department of Real Estate of the Final
Subdivision Public Report for the first phase of development of
the Project.
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION
Section 4.1. Creation of Lien and Personal Obligation of
Assessments. The Declarant, for each Condominium owned within
The Project, hereby covenants, and each Owner of any Condominium
by acceptance of a deed therefor, whether or not it shall be so
expressed in such deed, is deemed to covenant and agree to pay to
the Association: (i) annual assessments, which shall include an
adequate reserve fund for the periodic maintenance, repair and
replacement of the Recreation Area and Common Area, and (ii) spe-
cial assessments for capital improvements, such assessments to be
established and collected as hereinafter provided. The annual
and special assessments, together with interest, costs and rea-
sonable attorney's fees, shall (except as otherwise provided in
Section 4.4 below) be a charge on the Condominium and shall be a
continuing lien upon the Condominium against which each such
assessment is made, the lien to become effective upon recordation
of a notice of assessment. Each such assessment, together with
interest, costs and reasonable attorney's fees, shall also be the
personal obligation of the person who was the Owner of such
Condominium at the time when the assessment fell due. The per-
sonal obligation for delinquent assessments shall not pass to an
Owner's successors in title unless expressly assumed by them.
Section 4.2. Purpose of Assessments. The assessments
levied by the Association shall be used exclusively to promote
the recreation, health, safety and welfare of all the residents
in the entire Project, and for the improvement and maintenance of
7L
the Recreation Area and Common Area for the common good of the
Project and to reimburse the Association for the costs incurred
in bringing an Owner into compliance with the'Articles, Bylaws,
Declaration and rules and regulations adopted by the Board.
Section 4.3. Maximum Annual Assessment. Until January 1st
of the year immediately following the conveyance of the first
Condominium to an Owner, the maximum annual assessment shall be
$ for each Condominium.
(a) From and after January 1st of the year immediately
following the conveyance of the first Condominium to an Owner,
the maximum annual assessment may be increased each year by not
more than ten percent (10%) above the maximum assessment for the
previous year without a vote of the membership.
(b) From and after January 1st of the year immediately
following the conveyance of the first Condominium to an Owner,
the maximum annual assessment may be increased greater than ten
percent (10%) by the vote or written assent of fifty-one percent
(51%) of each class of Members; provided, however, that following
the conversion of the Class B membership to Class A membership,
the maximum annual assessment may be increased more than ten
percent (10%) above the maximum annual assessment for the previ-
ous year by the vote or written assent of (i) fifty-one percent
(51%) of the total voting power of Members of the Association,
and (ii) at least fifty-one percent (51%) of the total voting
power of Members of the Association other than Declarant.
(c) The Board may fix the annual assessment at an
amount not in excess of the maximum.
Section 4.4. Special Assessments. In addition to the
annual assessments authorized above, the Association may levy, in
any assessment year, a special assessment applicable to that year
only for the purpose of defraying, in whole or in part, the cost
of improvement upon the Recreation Area or Common Area, including
fixtures and personal property related thereto, provided that
any such assessment shall have the vote or written assent of
fifty-one percent (51%) of each class of Members; provided,
however, that following the conversion of the Class B membership
to Class A membership, any such assessment shall have the vote or
written assent of (i) fifty-one percent (51%) of the total voting
power of Members of the Association, and (ii) fifty-one percent
(51%) of the total voting power of Members of the Association
other than Declarant. The Association may also impose a non -lien
assessment against any Member to reimburse the Association for
costs incurred in bringing a Member and his Condominium into
compliance with the provisions of the Declaration, any amendments
thereto, the Articles, the Bylaws and the Association rules and
-9-
regulations, which assessment may be imposed upon the vote of the
Board after notice and an opportunity for a hearing; provided,
however, such special assessment shall not constitute a lien
against the Condominium owned by the Member so assessed and no
such special assessment shall be effective unless the Member
receives fifteen (15) days' prior written notice (given by any
method reasonably calculated to give actual notice) of the pro-
posed special assessment and the reasons therefor, and is given
an opportunity to be heard, either orally or in writing, before
the Board not less than five (5) days before the effective date
of the special assessment.
V CV 1�1 V11 4../• aw cava. w _
Under Section 4.3 or 4.4. Any action ftKcrizga under section
4.3 or 4.4 above requiring the vote of Members, shall be taken at
a meeting called for that purpose, written notice of which shall
be sent to all Members not less than ten (10) nor more than
ninety (90) days in advance of the meeting; provided, however, if
notice is given by mail and the notice is not mailed by first
class, registered or certified mail, then notice shall be given
not less than twenty (20) days before the meeting. A quorum for
such meeting shall be a majority of the voting power of the Mem-
bers of the Association. If the required quorum is not present,
another meeting may be called subject to the same notice require-
ment, and the required quorum at the subsequent meeting shall be
twenty-five percent (25%) of the voting power of the membership
of the Association; provided, however, if (i) the meeting so
adjourned is an annual meeting, and (ii) the adjourned annual
meeting is actually attended in person or by proxy by less than
thirty-three and one-third percent (33-1/3%) of the voting power
of the membership of the Association, then the only matters which
may be voted upon at the subject meeting are matters notice of
the general nature of which was duly given. If the proposed
action is favored by a majority of the votes cast at such meeting
but such vote is less than the requisite fifty-one percent (51%)
of each class of Members, Members who were not present in person
or by proxy may give their assent in writing, provided the same
is obtained by the appropriate officer of the Association not
later than thirty (30) days following the date of such meeting.
Section 4.6. Rate of Assessments. Both annual and special
assessments (other than (i) special assessments imposed by reason
of noncompliance with the Condominium documents, or (ii) special
assessments to raise funds for the rebuilding or major repair of
a portion of the structural Common Area), shall be levied upon
each Condominium at a uniform rate, and may be collected on a
monthly basis or otherwise as determined by the Board. A special
assessment against Members to raise funds for the rebuilding or
major repair of a portion of the structural Common Area shall be
levied upon the basis of the ratio of the square footage of the
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floor area of the Living Unit of the Condominium to the total
square footage of the aggregate floor area of the Living Units in
all Condominiums to be assessed. A special assessment against a
Member to reimburse the Association for costs incurred in
bringing the Member and his Condominium into compliance with the
provisions of the Condominium documents shall be assessed only
against that Member and his Condominium. Any assessment not paid
within thirty (30) days after the due date shall be delinquent
and shall bear interest at the rate of ten percent (10%,) per
annum from the due date until paid in full.
Section 4.7. Date of commencement or ennuai assess„le„L,;_
Due Dates. The annual assessments provided for herein shall com-
mence as to all Condominiums in the first phase of the Project on
the first day of the month following the conveyance of the first
Condominium to an Owner in the first phase, or on the first day
of the month following the conveyance of record of the Recreation
Area to the Association, whichever shall first occur. The annual
assessments shall, as to all Condominiums in the second phase of
the Project, commence on the first day of the month following the
conveyance of the first Condominium to an Owner in the second
phase. The first annual assessment shall be adjusted according
to the number of months remaining in the calendar year. The
Board shall fix the amount of the annual assessment against each
Condominium at least thirty (30) days in advance of each annual
assessment period. Written notice of the annual assessment shall
be sent to every Owner subject thereto. The due dates shall be
established by the Board.
Section 4.8. Effect of Non -Payment or essessmenub' nC,11C41=o
of the Association. Any annual or special assessment made in
accordance with this Declaration shall be a debt of the Owner of
a Condominium from the time the assessment is due. At any time
after any assessments levied by the Association affecting any
Condominium have become delinquent, the Board may file for
recording in the Office of the Orange County Recorder a notice of
delinquency as to such Condominium, which notice shall state
all amounts which have become delinquent with respect to such
Condominium and the costs (including attorney's fees) and
interest which have accrued thereon, the amount of any assess-
ments relating to such Condominium which is due and payable
although not delinquent, a description of the Condominium with
respect to which the delinquent assessments are owed, and the
name of the record or reputed record Owner of such Condominium.
Such notice shall be signed by the President or Vice President
and Secretary or Assistant Secretary of the Association.
Immediately upon recording of any notice of delinquency
pursuant to the foregoing provisions of this Section, the amounts
delinquent, as set forth in such notice, together with the costs
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(including attorney's fees) and interest accruing thereon, shall
(except as otherwise provided in Section 4.4 above) be and become
a lien upon the Condominium described therein, which lien shall
also secure all other payments and/or assessments which shall
become due and payable with respect to said Condominium following
such recording, and all costs (including attorney's fees) and
interest accruing thereon. Said lien shall continue for a period
of one year unless extended for a period of an additional year by
the recording of a written extension by the Association. When a
notice of assessment has been recorded, such assessment shall
constitute a lien on each respective Condominium prior and
superior to all other liens, except (i) all taxes, bonds, assess-
ments and other levies which, by law, would be superior thereto,
and (ii) the lien or charge of any first Mortgage of record.
In the event the delinquent assessments and all other assess-
ments which have become due and payable with respect to the same
Condominium, together with all costs (including attorney's fees)
and interest which have accured on such amounts, are fully paid
or otherwise satisfied prior to the completion of any sale held
to foreclose the lien provided for in this Article, the Board
shall record a further notice, similarly signed, stating the
satisfaction and releasing of such lien.
Each assessment lien may be foreclosed in the same manner as
the foreclosure of a mortgage upon real property under the laws
of the State of California, or may be enforced by sale pursuant
to Sections 2924, 2924(b), 2924(c) and 1356 of the California
Civil Code, and to that end a power of sale is hereby conferred
upon the Association. The Association, acting on behalf of the
Owners, shall have the power to bid for the Condominium at a
foreclosure sale, and to acquire and hold, lease, mortgage and
convey the same. Suit to recover a money judgment for unpaid
assessments, rent and attorney's fees shall be maintainable
without foreclosing or waiving the lien securing the same.
Section 4.9. Subordination of the Lien to First Deeds of
Trust and First Mortgages. The lien of the assessments, inter-
est, penalties, costs and attorneys fees provided for herein
shall be subordinate to the lien of any first Mortgage upon any
Condominium. Sale or transfer of any Condominium shall not
affect the assessment lien. However, the sale or transfer of any
Condominium pursuant to judicial or nonjudicial foreclosure of a
first Mortgage shall extinguish the lien of such assessments as
to payments which became due prior to such sale or transfer. No
sale or transfer shall relieve such Condominium from lien rights
for any assessments thereafter becoming due. Where the Mortgagee
of a first Mortgage of record or other purchaser of a Condominium
obtains title to the same as a result of foreclosure, such
acquirer of title, his successors and assigns, shall not be
-12-
liable for the share of the Common Expenses or assessments by the
Association chargeable to such Condominium which 'became due prior
to the acquisition of title to such Condominium by such acquirer.
Such unpaid share of Common Expenses or assessments shall be
deemed to be Common Expenses collectible from all of the Condo-
miniums, including such acquirer, his successors and assigns.
Section 4.10. Treatment of Monetary Penalty. A monetary
penalty imposed by the Association as a disciplinary measure for
failure of a Member to comply with the Declaration or Bylaws or
as a means of reimbursing the Association for costs incurred by
the Association in the repair of damage to the Recreation Area or
Common Area for which the Member was allegedly responsible or in
bringing the Member and his Condominium into compliance with the
Declaration or Bylaws, shall not be treated as an assessment
which may become a lien against the Member's Condominium enforce-
able as provided in Section 1356 of the Civil Code. This Section
shall not apply to charges imposed against an Owner which are
reasonable late payment penalties for delinquent assessments nor
charges to reimburse the Association for the loss of interest and
for costs reasonably incurred (including attorney's fees) in its
efforts to collect delinquent assessments.
Section 4.11. Estoppel Certificate. The Association shall
furnish, upon demand by any person, a certificate signed by an
officer of the Association setting forth whether the assessments
on a specified Condominium have been paid. A properly executed
certificate of the Association as to the status of assessments on
a Condominium is binding upon the Association as of the date of
its issuance.
Section 4.12. Personal Liability of Owner. No Owner may
exempt himself from personal liability for assessments levied by
the Association, nor release the Condominium owned by him from
the liens and charges hereof by waiver of the use or enjoyment of
any of the Recreation Area or Common Area or by abandonment of
his Condominium.
Section 4.13. Taxation of Association. In the event that
any taxes are assessed against the Recreation Area or Common Area
or the personal property of the Association, rather than against
the individual Condominiums, said taxes shall be added to the
annual assessments and, if necessary, a special assessment may be
levied against the Condominium in an amount equal to said taxes,
to be paid in two (2) installments, thirty (30) days prior to the
due date of each tax installment.
Section 4.14. Capitalization of Association. Upon acquisi-
tion of record title to a Condominium from Declarant, each Owner
shall contribute to the capital of the Association an amount
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equal to one -sixth (1/6) the amount of the then annual assessment
for that Condominium as determined by the Board. This amount
shall be deposited by the buyer into the purchase and sale escrow
and disbursed therefrom to the Association. Within sixty (60)
days after close of the first sales escrow of a Condominium by
Declarant, as seller, Declarant shall deliver to the Association
an amount equal to one -sixth (1/6) of the then annual assessment
for any and all Condominiums not yet sold. Upon the close of
escrow of any Condominium for which the capitalization fund was
prepaid by Declarant, the buyer shall remit through escrow, at
close of escrow, to Declarant, reimbursement of such fund.
Amounts paid pursuant to this Section 4.14 shall not be con-
sidered as advance payments of regular assessments and are in
addition to and not in lieu of annual and special assessments of
the Association.
ARTICLE V
RESPONSIBILITIES OF MAINTENANCE
Section 5.1. Owner Maintenance of Living Unit. Each Owner
of a Condominium shall be responsible for the maintenance and
repair of the glass doors and windows enclosing his Living Unit,
the interior of his Living Unit and all appliances whether
"built-in" or freestanding within the Living Unit, the interior
surfaces of the Living Unit, and shall also be responsible for
the maintenance and repair of the plumbing, electrical and heat-
ing systems servicing his Living Unit and located within the out-
side perimeter of the exterior bearing walls, floors and ceilings
thereof, including television cable equipment and connections,
and all appliances and equipment located within or without said
Living Unit, so long as those systems are used exclusively by
such Owner and not in common. Each Owner shall also be respon-
sible for the maintenance and repair of the Deck and Entryway
which he has the exclusive right to use, including the interior
surfaces of any fence or railing (but not the exterior surfaces),
and shall make such repairs as the Board deems necessary to pre-
serve the attractive appearance and protect the value thereof.
Section 5.2. Owner's Grant of Easements. Each Owner hereby
grants easements to other Owners to enter into each Living Unit
and to have utility companies enter into Living Units to repair
the plumbing, heating and electrical systems located thereon,
subject to the following limitations. Entry into a Living Unit
for emergency purposes may be immediate; provided, however, such
entry shall be made with as little inconvenience as possible to
the Owner and any damage caused thereby shall be repaired by the
entering party. Entry into a Living Unit for other than emer-
gency repairs shall be made only after three (3) days notice has
been given to the Owner and shall be made with as little inconve-
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nience as possible to the Owner and any damage caused thereby
shall be repaired by the entering party.
Section 5.3. Association Maintenance of Common Area.
Except as otherwise provided herein, the Association acting
through the Board and its officers shall have the sole and exclu-
sive right and duty to manage, operate, control, repair, replace
or restore all of the Common Area or any portion thereof, to-
gether with the improvements, trees, shrubbery, plants and grass
thereon, all as more fully set forth in this Declaration, the
Articles and the Bylaws. The Association shall cause all parking
areas on the Common Area to be vacuumed at least once each week.
However, should any such maintenance or repair result from the
act or neglect of an Owner or his guests or licensees, the Owner
shall reimburse the Association for such maintenance or repair.
Section 5.4. Association Maintenance of Recreation Area.
The Association shall maintain and provide for the maintenance of
all the Recreation Area and all improvements thereon in good
repair and appearance. The Association shall cause all parking
areas on the Recreation Area to be vacuumed at least once each
week. The Association shall provide landscaping and gardening
properly to maintain and periodically replace when necessary the
trees, plants, grass and other vegetation originally placed in
the Recreation Area by Declarant or Declarant's successor, pur-
suant to landscape plans submitted to the City of Newport Beach
and approved by said City in connection with approval of the sub-
division map covering the Project.
Section 5.5. Association Right of Entry. For the purpose
of performing the maintenance of the Recreation Area or Common
Area or for any other purpose reasonably related to the perfor-
mance by the Board of its responsibilities under this Declara-
tion, the Association agents and employees shall have the right
to enter any Living Unit or upon any portion of the Common Area
to effect emergency repairs. For other than emergency repairs,
the Association agents and employees shall have the right to
enter any Living Unit or any Exclusive Use Area portion of the
Common Area to effect repairs, improvements, replacements or
maintenance which the Association, after approval by two-thirds
(2/3) vote of the Board, reasonably deems necessary. Such entry
shall be made with as little inconvenience to the Owner as
possible and any damage caused thereby shall be repaired by the
Association. Further, such entry for other than emergency
repairs shall be made only after no less than three (3) days'
notice has been given to the Owner.
Section 5.6. Association Right to Adopt Rules. The Board
shall have the right to adopt reasonable rules not inconsistent
with the provisions contained in this Declaration, and to amend
-15-
the same from time to time relating to the use of the Recreation
Area and Common Area and the recreational and other facilities
situated thereon by Owners and by their tenants or guests, and
the conduct of such persons with respect to automobile parking,
outside storage of boats, trailers, bicycles and other objects,
disposal of waste materials, drying of laundry, control of pets
and other activities which, if not so regulated, might detract
from the appearance of the community or offend or cause incon-
venience or danger to persons residing or visiting therein. Such
rules may provide that the Owner of a Condominium whose occupant
leaves property on the Recreation Area or Common Area in viola-
tion of the rules may be assessed (on a non -lien basis) to cover
the expense incurred by the Association in removing such property
and storing or disposing thereof, after appropriate notice and an
opportunity for a hearing before the Board and a two-thirds (2/3)
vote of approval by the Board. The Board may suspend the voting
rights and right to use the recreational facilities located on
the Recreation Area and Common Area of a Member who is in default
in the payment of any assessment for any period during which such
assessment remains unpaid, and for a period not to exceed thirty
(30) days for any infraction of its published rules and regula-
tions, after reasonable written notice and an opportunity for a
hearing before the Board as set forth in the Bylaws which satis-
fies the minimum requirements of Section 7341 of the California
Corporations Code.
Section 5.7. Association Right to Grant Permits. The Board
shall have the right to grant permits, licenses and easements
over, under, upon and across the Recreation Area and Common Area
for utilities, roads and other purposes reasonably necessary or
useful for the property maintenance or operation of the Project.
The Board shall, upon written request from an Owner, grant per-
mits, licenses and easements over, under and across the Common
Area for purposes of permitting the installation and maintenance
of solar heating systems to serve the Living Unit owned by such
Owner, subject only to reasonable rules adopted by the Board with
regard to maintenance, applicable zoning regulations, the Uniform
Building Code and associated ordinances, and reasonable architec-
tural standards adopted by the Board or the architectural commit-
tee appointed by the Board pursuant to Article VI below.
ARTICLE VI
ARCHITECTURAL CONTROL
No building, fence, wall or other structure or improvement
shall be commenced, erected, placed or altered upon the Recrea-
tion Area or Common Area until the location and complete plans
and specifications showing the nature, kind, shape, height and
materials, including the color scheme, have been submitted to and
-16-
approved in writing as to harmony of external design and location
of surrounding structures and topography by the Board, or by an
architectural committee appointed by the Board and composed of
three (3) or more, but not to exceed five (5), representatives.
In the event the Board or its designated committee fails to
approve or disapprove such locations, plans and specifications or
other requests within thirty (30) days after the submission
thereof to it, then such approval will not be required, provided
that any structure or improvement so erected or altered conforms
to all of the conditions and restrictions herein contained, and
is in harmony with similar structures erected within the Project.
The grade, level or drainage characteristics of the Condominium
Property or any portion thereof, shall not be altered without the
prior written consent of the Board or its designated committee.
The provisions of this Article shall not apply to the initial
construction by Declarant of Condominiums or other improvements
to the Condominium Property or Recreation Area, and neither the
Board nor any committee appointed by the Board shall have any
authority or right to approve or disapprove the initial construc-
tion by Declarant of Condominiums or other improvements to the
Condominium Property or Recreation Area.
ARTICLE VII
SEPARATION OF INTEREST AND PROHIBITION OF PARTITION
Section 7.1. Separation of Interest. No Owner may sell,
assign, lease or convey (i) his interest in the Common Area
separate and apart from his Living Unit, nor (ii) his interest in
any Exclusive Use Area separate and apart from his interest in
the Common Area and Living Unit.
Section 7.2. Prohibition of Partition. Each of the Owners
of a Condominium, whether such ownership is in fee simple or as a
tenant in common, is hereby prohibited from partitioning or in
any way severing or separating such ownership from any of the
other ownerships in the Condominium Property, except upon the
showing that: (i) more than three (3) years before the filing of
the action, the Project was damaged or destroyed so that a mate-
rial part thereof was unfit for its use and the Project has not
been rebuilt or repaired substantially to its state prior to its
damage or destruction, or (ii) that three -fourths (3/4) or more
of the Project has been destroyed or substantially damaged, and
that Owners holding in aggregate more than a fifty percent (50%)
interest in the Common Area are opposed to repair or restoration
of the Project, or (iii) that the Project has been in existence
in excess of fifty (50) years, that it is obsolete and uneco-
nomic, and that Owners holding in aggregate more than a fifty
percent (50%) interest in the Common Area are opposed to repair
or restoration of the Project; provided, however, that if any
-17-
Condominium shall be owned by two (2) or more co -tenants as
tenants in common or as joint tenants, nothing herein shall be
deemed to prevent a judicial partition as between such co -tenants
and no Condominium may be partitioned or subdivided without the
prior written approval of the Mortgagee holding the first Mort-
gage on that Condominium.
Section 7.3. Power of Attorney. The Association is hereby
granted an irrevocable power of attorney to sell the Condominium
Property for the benefit of all the Owners thereof when the par-
tition of the Owners' interests in said Condominium Property may
be had pursuant to Section 7.2 above. The power of attorney
herein granted may be exercised upon the vote or written consent
of Owners holding in the aggregate at least two-thirds (2/3) of
the interest in the Common Area by any two (2) Members of the
Board who are hereby authorized to record a certificate of exer-
cise in the Office of the County Recorder of Orange County, which
certificate shall be conclusive evidence thereof in favor of any
person relying thereon in good faith; provided, however, that
said power of attorney shall not apply to the Administrator of
Veterans Affairs, an officer of the United States of America.
ARTICLE VIII
RIGHT OF MORTGAGEES
Provided that the Mortgagee informs the Association in
writing of its appropriate address and requests in writing to be
notified, neither the Association nor any Owner shall do any of
the following, unless at least sixty-seven percent (67%) of the
first Mortgagees of Mortgages encumbering Condominiums (based
upon one (1) vote for each Mortgage) has given their prior writ-
ten approval:
(a) Seek, by act or omission, to abandon the Condomin-
ium Project or to terminate the Condominium Plan or this Declara-
tion (whether or not because of any destruction of the Project),
or change, waive or abandon any scheme of regulation or enforce-
ment thereof pertaining to the architectural design or the
exterior appearance or maintenance of Living Units, the
Recreation Area or the Common Area;
(b) Change the prorata interest or obligations of any
Condominium for purposes of levying assessments or allocating
distributions of hazard insurance proceeds or condemnation awards
or for determining the prorata share of the Common Area appurte-
nant to each Living Unit;
(c) Partition or subdivide any Condominium;
-18-
(d) Seek, by act or omission, to abandon, partition,
subdivide, encumber, sell or transfer the Recreation Area or
Common Area; provided, however, that the granting of easements
for public utility or other public purposes consistent with the
uses of the Recreation Area or Common Area shall not be deemed a
transfer within the meaning of this provision;
(e) Use hazard insurance proceeds for losses to any
portion of the Condominium Property or Recreation Area for other
than the repair, replacement or reconstruction of the Condominium
Property or Recreation Area, except as may be provided by statute
upon substantial loss to the Living Unit, Recreation Area or
Common Area;
(f) Fail to maintain fire and extended coverage insur-
ance on the Common Area and improvements thereto and the Recrea-
tion Area and improvements thereto on a current replacement cost
basis in an amount less than one hundred percent (100%) of the
insurable value, based on current replacement cost.
ARTICLE IX
Section 9.1. Casualty Destruction of Common Area. If any
portion of the Common Area is damaged or destroyed by fire or
other casualty, then:
(a) If the cost of repairing or rebuilding does not
exceed the amount of the available insurance proceeds by more
than five percent (5%) of the budgeted gross expenses of the
Association for the fiscal year during which the repairs or
rebuilding is necessitated, the Board shall contract to repair or
rebuild the damaged portions of the Common Area substantially in
accordance with the original plans and specifications therefor.
(b) If the cost of repairing or rebuilding exceeds the
amount of available insurance proceeds by more than five percent
(5%) of the budgeted gross expenses of the Association for the
fiscal year during which the repairs or rebuilding is necessi-
tated, and if the Owners holding in aggregate more than fifty
percent (50%) interest in the Common Area agree to the repair or
restoration of the Project, then the Board shall contract as
provided in (a) above.
(c) If the Owners do not so agree to the repair or
rebuilding of the Common Area as provided in (b) above, then each
Owner (and his Mortgagee(s) as their respective interests then
appear) shall be entitled to receive that portion of the insur-
-19-
ance proceeds equal to the proportion of the decrease in fair
market value of his Condominium as compared to the aggregate
decrease in the fair market values of all the Condominiums
caused by such damage or destruction. For purposes hereof, fair
market value shall be determined by a member of the American
Institute of Real Estate Appraisers selected by the Board and
hired by and at the expense of the Association. Should dispute
arise as to the distribution of insurance proceeds, the dispute
shall be decided by arbitration by the American Arbitration
Association pursuant to its Commercial Rules of Arbitration.
(d) Anything in the immediately preceding paragraph to
the contrary notwithstanding, the Board shall contract for such
repair or rebuilding of Common Area which consists of Condominium
Building(s) containing Living Units (or portions thereof and/or
improvements thereto) if fifty percent (50%) or more of the
Owners owning Units in said Condominium Building(s) agree to the
repair or restoration of said Condominium Building'(s).
(e) If a bid to repair or rebuild is accepted, the
Board shall levy a special assessment against each Condominium in
the proportion the Condominiums are assessed, pursuant to Section
4.6 of Article IV of this Declaration, for purposes of raising
funds for the rebuilding or major repair of a portion of the
structural Common Areal to make up any deficiency between the
total insurance proceeds and the contract price for such repair
and rebuilding, and such assessment and all insurance proceeds,
whether or not subject to liens of Mortgagees, shall be paid to
the account of the Association to be used for such rebuilding.
Section 9.2. Taking of Common Area. If any portion of the
Common Area is taken by condemnation, eminent domain or any
proceeding in lieu thereof, and the award therefor is not appor-
tioned among the Owners (and their Mortgagees as their respective
interests then appear) by court judgment or by agreement between
the condemning authority and each of the affecting Owners, then
the Owners of the Common Area (and their Mortgagees as their
respective interests then appear) shall be entitled to receive a
distribution from the award for such taking in the same propor-
tion as insurance proceeds will be distributed pursuant to Sub-
section (c) of Section 9.1 above; provided, however, that should
it be determined to repair or rebuild any portion of the Common
Areal such proceeds shall be paid to the Association for that
purpose in the same manner and subject to the same terms, condi-
tions and limitations as are set forth above in Section 9.1 of
this Article IX for repairing damaged or destroyed portions of
the Common Area. A decision to repair or rebuild shall be made
in the same manner and subject to the same conditions and limita-
tions as provided above in Section 9.1 of this Article IX for
determining whether to rebuild or repair following damage or
destruction.
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Section 9.3. Casualty Destruction of Living Unit. In the
event of damage or destruction to any Living Unit, the Owner
thereof shall reconstruct the same as soon as reasonably practi-
cable and substantially in accord with the original plans and
specifications therefor; provided, however, that any such Owner
may, with the written consent of the Board, reconstruct or repair
the same pursuant to new or changed plans and specifications. In
the event the Board fails to approve or disapprove such changed
plans and specifications within sixty (60) days of the receipt
thereof, they shall be deemed to have been approved.
Section 9.4. Takina of Living Unit. In the event of any
taking of a Living Unit, the Owner (and his Mortgagees as their
interests may then appear) of the Living Unit shall be entitled
to receive the award for such taking and after acceptance thereof
he (and his Mortgagee) shall be divested of any further interests
in the Condominium Property if such Owner shall vacate his Living
Unit as the result of such taking. In such event, said Owner
shall grant his remaining interests in the Common Area appur-
tenant to the Living Unit so taken, if any, to the other Owners
owning a fractional interest in the same Common Area, such grant
to be in proportion to the fractional interest in the Common Area
then owned by each.
Section 9.5. Taking of Recreation Area. In the event the
Recreation Area or any portion thereof shall be taken for public
purposes by condemnation as a result of any action or proceeding
in eminent domain, or shall be transferred in lieu of condemna-
tion to any authority entitled to exercise the power of eminent
domain, then the award or consideration for such taking or
transfer shall be paid to and belong to the Association.
Section 9.6. Association Insurance. The Association shall
obtain and continue in effect the following insurance:
(a) A master fire insurance policy with glass coverage
and extended coverage endorsement for the full insurable value of
all of the improvements within the Project. "Improvements" means
and refers to the Common Area together with those appliances and
improvements located within the Living Units provided by Declar-
ant to the initial Owners of Condominiums and only includes items
provided by Declarant. The form and content of such policy must
be satisfactory to all institutional first Mortgagees and shall
meet the maximum standards of the various institutional first
Mortgagees whose loan(s) encumber any of the Condominiums.
(b) A public liability and property damage insurance
policy with cross liability endorsement, if available, insuring
the Association, any manager, the Declarant and the Owners
against liability incident to ownership or use of the Recreation
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Area and Common Area. The limits of such insurance shall not be
less than $1,000,000.00 covering all claims for death, personal
injury and property damage arising out of a single occurrence.
(c) If requested by Members of the Association who have
at least ten percent (10%) of the Association's voting power or
any first Mortgagee or any insurer or governmental guarantor of
any first Mortgage, a fidelity bond covering Members of the
Board, officers and employees of the Association, and employees
of any manager or managing agent, whether or not such persons are
compensated for their services, naming the Association as obligee
and written in an amount equal to at least one hundred fifty per-
cent (150%) of the estimated annual operating expenses of the
Association, including reserves.
(d) Workers' compensation insurance covering any
employees of the Association.
(e) A standard all risk of loss perils insurance policy
under an extended coverage casualty policy in the amount of the
maximum insurable replacement value of all improvements to the
Recreation Area, a policy covering all loss to personalty owned
by the Association insured with coverage in the maximum insurable
fair market value of such personalty as determined annually by an
insurance carrier selected by the Association. Insurance pro-
ceeds for improvements in the Recreation Area and personalty
owned by the Association shall be payable to the Association. In
the event of any loss, damage or destruction, the Association
shall cause the same to be replaced, repaired or rebuilt if it
occurred in the Recreation Area. In the event the cost of such
replacement, repair or rebuilding of Recreation Area (i) exceeds
the insurance proceeds available therefor, or (ii) no insurance
proceeds are available therefor, the deficiency or full cost
thereof shall be assessed to the Owners as a special assessment
pursuant to Section 4.4 of Article IV above.
Insurance premiums for the insurance policies set forth above
shall be a Common Expense to be included in the annual assess-
ments levied by the Association. Each Owner shall be responsible
to pay any deductible amount for any loss to his Condominium.
Each Owner may separately insure the improvements not covered by
the master fire insurance policy and personal property within his
Living Unit. No Owner shall insure his Condominium in any manner
which would cause any diminution in insurance proceeds from the
master policy. Should any Owner violate this provision he shall
be responsible to the Association for any such diminution.
Copies of all such insurance policies (or certificates thereof
showing the premiums thereon to have been paid) shall be retained
by the Association and open for inspection by Owners at any
reasonable time(s). All such insurance policies shall (i) pro-
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vide that they shall not be cancellable by the insurer without
first giving at least ten (10) days,' prior notice in writing to
the Association, and (ii) contain a waiver of subrogation by the
insurer(s) against the Association, Board and Owners. Anything
contained herein to the contrary notwithstanding, the Association
shall maintain such insurance coverage as may be required by the
Federal National Mortgage Association ("FNMA") so long as FNMA
holds a mortgage on or ownes any Condominium.
Section 9.7. Mortgagee Approval. Any restoration or repair
of the Project, after a partial condemnation or damage due to an
insurable hazard, shall be performed substantially in accordance
with original plans and specifications, unless other action is
approved by Eligible Mortgage Holders of first Mortgages on Con-
dominiums which have at least fifty-one percent (51%) of the
votes of Condominiums subject to Eligible Mortgage Holders'
Mortgages.
ARTICLE X
Section 10.1. Residential Purposes. Each Living Unit shall
be improved, used and occupied for private, single-family dwell-
ing purposes only, and no portion thereof nor the Common Area
shall be used for any commercial purpose whatsoever; provided,
however, Declarant may use any of the Living Units and Exclusive
Use Areas owned or leased by Declarant as model homes and sales
offices during that period of time commencing when the Condomin-
iums are first sold or offered for sale to the public and ending
when all the Condominiums in the Project are sold and conveyed by
Declarant to separate owners thereof or five (5) years after the
first escrow closes, whichever first occurs.
Section 10.2. Lease of Condominium. Each Owner shall have
the right to lease his Condominium, provided that such lease is
in writing and provides that the tenant shall be bound by and
obligated to the provisions of this Declaration, the Bylaws and
the rules and regulations of the Board, and that the failure to
comply with the provisions of these documents shall be a default
under the lease. With the exception of a lender in possession of
a Condominium following a default under a first Mortgage, a
foreclosure proceeding or any deed or other arrangement in lieu
of foreclosure, no Owner shall lease his Condominium for tran-
sient or hotel purposes. Any lease which is either for a period
of less than thirty (30) days or pursuant to which the lessor
provides any services normally associated with a hotel, shall be
deemed to be for transient or hotel purposes.
-23-
Section 10.3. No Use Causing Loss of Insurance. No Living
Unit, Exclusive Use Area or improvements situated therein shall
be occupied or used for any purpose or in any manner which shall
cause such improvements to be uninsurable against loss by fire or
the perils of the extended coverage endorsement to the California
Standard Fire Policy form, or cause any such policy or policies
representing such insurance to be cancelled or suspended, or the
company issuing the same to refuse renewal thereof.
Section 10.4. Pets. Not exceeding one (1) usual and ordinary
household pet (exclusive of caged birds or aquarium fish) may be
kept in any Living Unit or Exclusive Use Area without the prior
written consent of the Board. Pets shall not be allowed on other
portions of the Recreation Area or Common Area except as may be
permitted by rules made by the Board. Except as provided herein -
above, no animals, livestock, birds or poultry shall be brought
within the Condominium Property or kept in any Living Unit or on
any portion of the Common Area. No pet shall be permitted to be
kept within any portion of the Condominium Property if it makes
excessive noise or otherwise constitutes an unreasonable annoy-
ance to other Owners.
Section 10.5. Nuisance. No Living Unit or Exclusive Use
Area shall be used in such manner as to obstruct or interfere
with the enjoyment of occupants of other such areas or annoy them
by unreasonable noise or otherwise, nor shall any nuisance be
committed or permitted to occur in any Living Unit nor on the
Common Area.
Section 10.6. Sign Control. No signs other than one (1)
sign of customary and reasonable dimensions advertising a Condo-
minium for sale or lease shall be erected or displayed in any
Living Unit so that it is visible from without such Living Unit
without the prior written permission of the Board, and all signs
must conform with applicable governmental ordinances. No signs
shall be erected or displayed on the Common Area except signs
placed by authority of the Board. Anything contained in this
Declaration to the contrary notwithstanding, Declarant shall have
the right to install and maintain during the sales period set
forth in Section 10.1 above, such signs, poles and advertisements
as it deems appropriate in connection with its sales program for
the sale to the public of Condominiums.
Section 10.7. Outside Antennae. There shall be no outside
television or radio antennae, masts, poles or flag poles con-
structed, installed or maintained on the Condominium Property for
any purpose whatsoever without the prior written consent of the
Board.
Section 10.8. Owner Not to Alter Common Area. Except as
otherwise specifically provided herein, nothing herein contained
-24-
shall give the Owner the right to paint, decorate, remodel,
landscape or adorn any part or parcel of the Common Area without
the written consent of the Board.
Section 10.9. No Offensive Activity. No noxious or offen-
sive activity shall be carried on in any Living Unit or on the
Common Areal nor shall anything be done therein which may be or
become an annoyance or nuisance to the other Owners other than
construction or repair of improvements made at the Board's
instruction or at Declarant's instruction. Nothing shall be done
in any Living Unit or in, on or to the Common Area which will
impair the structural integrity of any building, or which would
structurally change any building located therein. Except as
otherwise provided herein, nothing shall be altered or construc-
ted in or removed from the Common Area except upon the written
consent of the Board or an architectural committee appointed by
the Board. All equipment, garbage cans, wood piles or storage
piles shall be kept screened and concealed from view of neighbor-
ing Living Units, streets and Common Area. All rubbish, trash or
garbage shall be regularly removed from each Living Unit, and
shall not be allowed to accumulate thereon or on the adjacent
Common Area. No fences, hedges or walls shall be erected or
maintained upon the Condominium Property except such as are
installed in accordance with the initial construction of the
buildings located on the Condominium Property or as allowed by
the Board. No exterior clotheslines shall be erected or main-
tained, and there shall be no outside drying or laundering of
clothes on the Common Areal except in areas which may be approved
by the Board.
Section 10.10. Power Equipment. No power equipment, hobby
shops or car maintenance (other than emergency work) shall be
permitted on the Condominium Property, except with prior written
approval of the Board. Approval shall not be unreasonably with-
held and in deciding whether to grant approval, the Board shall
consider the effects of noise, air pollution, dirt or grease,
fire hazard, interference with radio or television reception, and
similar objections.
Section 10.11. Use of Common Area. Except as otherwise
provided herein, the Common Area shall be improved and used only
for the following purposes:
(i) affording vehicular passage and pedestrian
movement within the Condominium Property, including access to
the Living Units;
(ii) recreational use by the Owners and occupants
of Living Units in the Condominium Property and their guests,
subject to rules established by the Board;
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(iii) beautification of the Common Area and provid-
ing privacy to the residents of the Condominium Property
through landscaping and such other means as the Board shall
deem appropriate;
(iv) parking of automotive passenger vehicles in
areas provided therefor as may be designated and approved by
the Board by such persons, upon such terms and conditions and
for such fees as may from time to time be determined by the
Board;
(v) as Exclusive Use Areas to be used in the
manner hereinafter described. Nothing herein shall be deemed
to allow persons other than the Owner of a Living Unit to
which an Exclusive Use Area is appurtenant (or his tenants
and lessees) to enjoy the use thereof.
No part of the Common Area shall be obstructed so as to interfere
with its use for the purposes hereinabove permitted, nor shall
any part of the Common Area be used for storage purposes (except
as incidental to one of such permitted uses, or for storage of
maintenance equipment used exclusively to maintain the Common
Area or in storage areas designated by the Board), nor in any
manner which shall increase the rate of which insurance against
loss by fire, or the perils of the extended coverage endorsement
to the California Standard Fire Policy form, or bodily injury, or
property damage liability insurance covering the Common Area and
improvements situated thereon may be obtained, or cause such
premises to be uninsurable against such risks or any policy or
policies representing such insurance to be cancelled or suspended
or the company issuing the same to refuse renewal thereof.
Section 10.12. Additional Use. The Board shall have the
right to allow one or more Owners to exclusively use portions of
the otherwise nonexclusive Common Area, provided that such por-
tions of the Common Area are nominal in area and adjacent to the
Owner's Exclusive Use Area(s) or Living Unit, and, provided
further, that such use does not unreasonably interfere with any
other Owner's use or enjoyment of the Project.
Section 10.13. Owners Liable for Damage. Each Owner shall
be legally liable to the Association for all damages to the
Recreation Area and Common Area or to any improvements thereof or
thereto, including, but not limited to, the buildings, recreation
facilities and landscaping caused by such Owner, his licensee(s)
or any occupant of such Owner's Living Unit as such liability may
be determined under California law. Each Owner shall be respon-
sible for compliance with the provisions of the Declaration,
Articles, Bylaws and rules of the Board by his guests, lessees
-26-
and all occupants of his Living Unit, and shall, after written
notice and an opportunity for a hearing, pay the fines and
penalties assessed pursuant hereto, the Bylaws or Board rules for
any violation by his guests, lessees and occupants of his Living
Unit.
Section 10.14. Interior Surfaces. Each Owner shall have the
right, at his sole cost and expense, to maintain, repair, paint,
paper, panel, plaster, tile and finish the interior surfaces of
the ceilings, floors, window frames, door frames, trim and perim-
eter walls of the Living Unit, and the surfaces of the bearing
walls and partitions located within the Living Unit. Said Owners
shall have the right to substitute new finished surfaces in place
of those existing on said ceiling, floors, walls and doors of
said Living Unit.
Section 10.15. Exclusive Use Areas Appurtenant. Each Exclu-
sive Use Area shall be (i) appurtenant to the Living Unit with
which the Exclusive Use Area is conveyed, and (ii) used only for
the purposes set forth in the Declaration. The right to so use
an Exclusive Use Area shall be exercisable only by the Owner(s)
of the Condominium appurtenant thereto and/or said Owner's ten-
ants and licensee(s). Conveyance of a Condominium shall effect
conveyance of Exclusive Use Areas appurtenant thereto and trans-
fer of all rights thereto to the vested Owner of the Condominium.
Any license(s) thereto shall be terminated upon such conveyance.
No Exclusive Use Area or any rights thereto (other than said
revokable licenses) shall be transferred or conveyed apart from
conveyance of the Condominium to which they are appurtenant.
Each Exclusive Use Area shall be deemed to be Common Area for all
those purposes set forth in this Declaration which are not incon-
sistent with this Article X or Article V.
Section 10.16. Use of Exclusive Use Areas. Each Owner shall
have the following rights with regard to the Deck or Entryway, if
any, which he has the exclusive right to use:
(a) To place furniture, barbeque equipment and potted
plants upon said area.
(b) If appropriate areas exist therefor, to landscape
and plant flowers and shrubs which do not unreasonably interfere
with the enjoyment of adjacent Living Units and Exclusive Use Areas.
Except as provided in this Section 10.16, nothing contained
herein shall give any Owner the right to paint, decorate, remodel
-27-
or alter said Exclusive Use Areas or any other part of the Common
Area without the prior written consent of the Board.
Section 10.17. No Control Gates. No vehicular control gates
at the entrance to £fie on ominium Property may be installed or
maintained without the prior consent of the City of Newport
Beach, California.
Section 10.18. California Vehicle Code. The provisions of
the California Vehicle Code shall be applicable to and may be
enforced on all private streets and drives within the Common Area
and Recreation Area. Pavement marking acceptable to the Newport
Beach Police Department and Public Works Department shall be pro-
vided along the sidelines of the private streets and drives in
the Common Area and Recreation Area.
ARTICLE XI
GENERAL PROVISIONS
Section 11.1. Enforcement. The Association and any Owner
shall have the right to enforce by any proceedings at law or in
equity, all covenants, conditions, restrictions and reservations
now or hereafter imposed by the provisions of this Declaration.
Each Owner shall have a right of action against the Association
for any failure of the Association to comply with the provisions
hereof or of the Bylaws or Articles. Failure by the Association
or any Owner to enforce any covenant, condition, restriction or
reservation herein contained shall, in no event, be deemed a
waiver of the right to do so thereafter.
Section 11.2. Severability. Should any provision in this
Declaration be void or become invalid or unenforceable in law or
equity by judgment or court order, the remaining provisions
hereof shall be and remain in full force and effect.
Section 11.3, Amendments. During the period of time prior
to conversion of the Class B membership to Class A membership in
the Association, this Declaration may be amended by an instrument
in writing signed by seventy-five percent (75%) of the voting
power of each class of Members of the Association, which amend-
ment shall become effective upon the recording thereof by the
Office of the County Recorder of Orange County, California.
After conversion of the Class B membership in the Association to
Class A membership, the Declaration may be amended by an instru-
ment in writing signed by (i) seventy-five percent (75%) of the
total voting power of the Association, and (ii) at least seventy-
five percent (75%) of the voting power of Members of the Associa-
tion other than Declarant. Anything contained herein to the
contrary notwithstanding, no amendment material to a Mortgagee
-28-
may be made to this Declaration without the prior written consent
of Eligible Mortgage Holders whose Mortgages encumber sixty-seven
percent (67%) or more of the Condominiums within the Condominium
Property which are subject to Eligible Mortgage Holder Mortgages.
For purposes hereof, any amendments to provisions of this
Declaration governing any of the following subjects, shall be
deemed "material to a Mortgagee":
(a) The fundamental purpose for which the Project was
created (such as a change from residential use to a different use).
(b) Assessments, assessment liens and subordination
thereof.
(c) The reserve for maintenance, repair and replacement
of the Recreation Area and Common Area.
(d) Property maintenance and repair obligations.
(e) Casualty, liability insurance and fidelity bonds.
(f) Reconstruction in the event of damage or destruction.
(g) Rights to use the Recreation Area and Common Area.
(h) Annexation.
(i) Voting.
(j) The percentage interest of the Owners in the Common
Area.
(k) Boundaries of any Living Unit.
(1) The interests in Exclusive Use Areas and other por-
tions of the Common Area.
(m) Leasing of Condominiums.
(n) Imposition of any right of first refusal or similar
restriction on the right of a Condominium Owner to sell, transfer
or otherwise convey his Condominium.
(o) Any provision which, by its terms, is specifically
for the benefit of the first Mortgagees, or specifically confers
rights on first Mortgagees.
An amendment to the Declaration shall not be considered
material if it is for the purpose of correcting technical errors
or for clarification. An Eligible Mortgage Holder who receives a
-29-
written request to approve
does not deliver or mail to
response within thirty (30)
approved such request.
amendments (including additions) who
the requesting party a negative
days, shall be deemed to have
Section 11.4. Extension of Declaration. Each and all of
these covenants, conditions and restrictions shall terminate on
December 31, 2030, after which date they shall automatically be
extended for successive periods of ten (10) years unless the
Owners have executed and recorded at any time within six (6)
months prior to December 31, 2030, or within six (6) months prior
to the end of any such ten (10) year period, in the manner
required for a conveyance of real property, a writing in which it
is agreed that said restrictions shall terminate on December 31,
2030 or at the end of any such ten (10) year period.
Section 11.5. FHA and VA ociApproval. So long as there is a
Class B membership in the Ass ation, and so long as an FHA in-
sured or VA guaranteed loan encumbers any Condominium, the fol-
lowing shall require prior approval of the FHA and VA: annexa-
tion of additional properties to the Project, mergers and
consolidations, special assessments and any amendment to this
Declaration.
Section 11.6. Encroachment Easement. In the event any
portion of the Recreation Area or Common Area encroaches upon any
Living Unit or any Living Unit encroaches upon the Recreation
Area or Common Area or another Living Unit as a result of the
construction, reconstruction, repair, shifting, settlement or
movement of any portion of the improvements, a valid easement for
the encroachment and for the maintenance of the same shall exist
so long as the encroachment exists. Said valid easement shall
apply only to minor encroachments not exceeding one (1) foot.
There shall be easements for the maintenance of said encroach-
ments as long as they shall exist, and the rights and obligations
of Owners shall not be altered ,in any way by said encroachments,
settlement or shifting; provided, however, that in no event shall
an easement for encroachment be created in favor of an Owner if
said encroachment occurred due to the willful misconduct of any
Owner. In the event any portion of a structure on the Condomin-
ium Property is partially or totally destroyed and then repaired
or rebuilt, each Owner agrees that minor encroachments over
adjoining Living Units, Recreation Area or Common Area shall be
easements for the maintenance of said encroachments so long as
they shall exist.
Section 11.7. Litigation. In the event the Association,
Declarant or any owner shall commence litigation to enforce any
of the covenants, conditions or restrictions herein contained, or
contained in the Bylaws, the prevailing party in such litigation
-30-
shall be entitled to costs of suit and such attorney's fees as
the court may adjudge reasonable and proper. The "prevailing
party" shall be the party who is entitled to recover his costs of
suit, whether or not the suit proceeds to final judgment. A
party not entitled to recover his costs shall not recover
attorney's fees. No sum for attorney's fees shall be counted in
calculating the amount of a judgment for purposes of determining
whether a party is entitled to recover his costs or attorney's
fees.
Section 11.8. Annexation of Additional Property.
(a) Upon approval in writing of the Association, pur-
suant to two-thirds (2/3) of the voting power of each class of
Members of the Association, the Owner of any property who desires
to add it to the scheme of this Declaration and to subject it to
the jurisdiction of the Association, may file of record a
Declaration of Annexation which shall extend the scheme of this
Declaration to such property. After conversion of the Class B
membership in the Association to Class A membership, the action
herein requiring membership approval shall require the vote or
written consent of (i) two-thirds (2/3) of the voting power of
Members of the Association, and (ii) two-thirds (2/3) or more of
the voting power of Members of the Association other than
Declarant.
(b) If, within three (3) years of the date of the ori-
ginal issuance by the California Department of Real Estate of the
most recently issued Final Subdivision Public Report for a phase
of the Project, Declarant should develop additional lands within
the property described above in Recital Cr such additional lands
or any portion thereof may be added to the Condominium Property
and included within this Declaration and the jurisdiction of the
Association by action of Declarant without the assent of Members
of the Association; provided, however, that the development of
the additional lands shall be in accord with the plan of develop-
ment submitted to (i) the Department of Real Estate prior to the
time a Final Subdivision Public Report is issued in connection
with the Condominium Property, and (ii) the VA. Said annexation
may be accomplished by the recording of a Declaration of Annexa-
tion or by the recording of a separate Declaration of Covenants,
Conditions and Restrictions which requires Owners of Condominiums
therein to be Members of the Association. The obligation of
Condominium Owners to pay dues to the Association and the right
of such Condominium Owners to exercise voting rights in the
Association in such annexed property shall not commence until the
first day of the month following close of the first sale of a
Condominium by Declarant in the particular phase of development
so annexed. Subject to annexation of additional property as set
forth in this Subsection 11.8(b):
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(i) Declarant hereby reserves, for the benefit of
and appurtenant to the Condominiums hereinafter located in
phase 2, and their respective Owners, nonexclusive easements
to use the Common Area (other than any building or Exclusive
Use Area) in the Condominium Property, pursuant to and in the
manner set forth in this Declaration, to the same extent and
with the same effect as if each of the Owners of a Condomin-
ium in phase 2 owned an undivided interest in the Common Area
in the Condominium Property.
(ii) Declarant hereby grants, for the benefit of
and appurtenant to each Condominium in the Condominium Prop-
erty and their Owners, the nonexclusive easement to use the
Common Area (other than any building or Exclusive Use Area)
in phase 2, pursuant to the provisions of and in the manner
prescribed by this Declaration, to the same extent and with
the same effect as if each of the Owners of a Condominium in
the Condominium Property owned an undivided interest in the
Common Area of the property so annexed.
The reciprocal cross -easements set forth herein shall be effec-
tive as to each phase only at such time as phase 2 has been
annexed by the recording of a Declaration of Annexation or sepa-
rate Declaration of Covenants, Conditions and Restrictions by
Declarant, and prior to that time, neither the Condominium Prop-
erty nor phase 2 shall be affected hereby nor shall the Owners in
phase 2 have such rights in the Common Area within the Condomin-
ium Property.
Section 11.9. Owner Compliance. Each Owner, tenant or
occupant of a Condominium shall comply with the provisions of
this Declaration, the Bylaws, decisions and resolutions of the
Association as lawfully amended from time to time, and failure to
comply with any such provisions, decisions or resolutions shall
be grounds for an action to recover sums due, for damages, or for
injunctive relief.
Section 11.10. Special Responsibilities of Association. In
the event that the improvements to be installed by Declarant to
the Recreation Area or Common Area have not been completed prior
to the issuance by the California Department of Real Estate of a
Final Subdivision Public Report covering the Condominium
Property, and in the further event that the Association is the
obligee under a bond to secure performance by the Declarant to
complete such improvements, then if such improvements have not
been completed and a Notice of Completion filed within sixty (60)
days after the completion date specified in the Planned Construc-
tion Statement appended to the bond, the Board shall consider and
vote upon the question of whether or not to bring action to
enforce the obligations under the bond. If the Association has
-32-
given an extension in writing for the completion of any such
improvement then the Board shall consider and vote on said
question if such improvements have not been completed and a
Notice of Completion filed within thirty (30) days after the
expiration of the extension period. In the event that the Board
determines not to take action to enforce the obligations secured
by the bond, or does not vote on the question as above provided,
then, in either such event, upon petition signed by Members
representing not less than five percent (5%) of the total voting
power of the Association, the Board shall call a special meeting
of the Members of the Association to consider the question of
overriding the decision of the Board or of requiring the Board to
take action on the question of enforcing the obligations secured
by the bond. Said meeting of Members shall be held not less than
thirty-five (35) days nor more than forty-five (45) days
following receipt of the petition. At said meeting a vote of a
majority of the voting power of the Members of the Association,
excluding the vote of Declarant, to take action to enforce the
obligations under the bond shall be deemed to be the decision of
the Association, and the Board shall thereafter implement the
decision by initiating and pursuing appropriate action in the
name of the Association.
Section 11.11. Limitation of Restrictions on Declarant.
Declarant is undertaking the work of construction of residential
Condominium dwellings and incidental improvements upon the Condo-
minium Property and on the Recreation Area. The completion of
that work, and the sale, rental and other disposal of said
Condominium dwellings is essential to the establishment and
welfare of said Condominium Property as a residential community.
In order that said work may be completed and said Condominium
Property be established as a fully occupied residential community
as rapidly as possible, nothing in this Declaration shall be
understood or construed to:
(a) Prevent Declarant, its contractors or subcontrac-
tors from doing on the Condominium Property or in any Living Unit
whatever is reasonably necessary or advisable in connection with
the completion of said work; or
(b) Prevent Declarant or its representatives from
erecting, constructing and maintaining on any part or parts of
the Condominium Property or Recreation Area, such structures as
may be reasonable and necessary for the conduct of its business
of completing said work and establishing said Condominium
Property as a residential community and disposing of the same in
parcels by sale, lease or otherwise; or
(c) Prevent Declarant from conducting on any part of
the Condominium Property or Recreation Area its business of
-33-
completing said work, and of establishing a plan of Condominium
ownership and of disposing of said Condominium Property in
Condominium dwellings by sale, lease or otherwise; or
(d) Prevent Declarant from maintaining such sign or
signs on any of the Condominium Property and Recreation Area as
may be necessary for the sale, lease or disposition thereof; pro-
vided, however, that the maintenance of any such sign shall not
unreasonably interfere with the use by any Owner of his Living
Unit, the Recreation Area or the Common Area.
The rights of Declarant provided in subparagraphs (a) through
(d) above may be exercised during the period of time commencing
when the Condominiums are first sold, or offered for sale to the
public, and ending when all the Condominiums in the Project are
sold and conveyed by Declarant to separate owners, or five (5)
years following the date of conveyance of the first Condominium
in the Project from Declarant to a retail purchaser, whichever
shall first occur. So long as Declarant, its successors and
assigns owns one or more of the Condominiums established and
described herein, Declarant, its successors and assigns shall be
subject to the provisions of this Declaration. Declarant, in
executing its rights under this Section 11.11, shall not unreaso-
nably interfere with the use of the Recreation Area or Common
Area by any Owner.
Section 11.12. Liens Not Invalid. No breach of any provi-
sion of these covenants, conditions and restrictions shall inva-
lidate the lien of any Mortgage made in good faith and for value,
but all of said covenants, conditions and restrictions shall be
binding upon any Owner whose title is derived through foreclosure
sale, trustee's sale or otherwise.
IN WITNESS WHEREOF, the undersigned, being Declarant herein,
has executed this instrument the day and year first hereinabove
written.
DOUGLAS ALLRED DEVELOPMENT COMPANY,
a California corporation
By,
99
-34-
STATE OF CALIFORNIA )
ss.
COUNTY OF SAN DIEGO )
On this day of , 19 , before me,
a Notary Public in and for said
state, personally appeared , per-
sonally known to me (or proved to me on the basis of satisfactory
evidence) to be the President, and
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the Secre-
tary of the corporation that executed the within instrument,
known to me to be the persons who executed the within instrument
on behalf of the corporation therein named, and acknowledged to
me that such corporation executed the within instrument pursuant
to its bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
NOTARY PUBLIC
-35-
SUBORDINATION AGREEMENT
, being the
beneficiary under that certain deed of trust dated
and recorded as File/Page No. with the
Office of the County Recorder of Orange County, California,
hereby declares that the lien and charge of said deed of trust is
and shall be subordinate and inferior to the Declaration of
Covenants, Conditions and Restrictions to which this Subordi-
nation Agreement is attached.
By
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On this day of , 19 , before me,
, a Notary Public in and for said
state, personally appeared , per-
sonally known to me (or proved to me on the basis of satisfactory
evidence) to be the President, and
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the Secre-
tary of the national banking association that executed the within
instrument, known to me to be the persons who executed the within
instrument on behalf of the national banking association therein
named, and acknowledged to me that such national banking asso-
ciation executed the within instrument pursuant to its bylaws or
a resolution of its board of directors.
WITNESS my hand and official seal.
NOTARY PUBLIC
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