HomeMy WebLinkAboutAGENDA REPORT 2010 0505 CC REG ITEM 10J ITEM 10.J.
CITY OF MOORPARK.CALIFnRN!jL
City Council Meeting
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MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: David A. Bobardt, Community Development Director
Prepared by Joseph R. Vacca, Principal Planner
DATE: April 22, 2010 (CC Meeting of 05/05/2010)
SUBJECT: Consider Status Update on Developer Turnover of Landscaped
Slopes to the Meridian Hills Homeowner's Association for
Maintenance, Tract Nos. 5187-182, Developer is Resmark Equity
Partners, LLC, (ORA Ashford 94, LLC)
BACKGROUND
At the April 21, 2010 City Council meeting, several Meridian Hills residents raised the
following concerns about their development during Public Comment:
• A history of poor maintenance of landscaped areas including the presence of
weeds and lack of thriving plants, throughout the project, including LIVID areas,
(which have not been accepted as complete by the City) and Homeowner's
Association (HOA) common areas currently controlled by the developer; and a
belief that the developer has not been proactive in maintaining project
landscaping. (City staff will continue to monitor this.)
• Cracks and peeling paint on concrete of tennis and basketball courts and poor
drainage of the recreation lot where the tennis and basketball courts are located.
(City staff inspected these courts upon completion and found them to be
acceptable with no cracks wider than the width of a dime. The current
peeling of the paint is an HOA matter.)
• Residential pool heaters that needed replacement on the HOA pool. (This is an
HOA matter.)
• The street paving final cap that took months and required several corrections on
the part of the developer to complete. (The final cap on the street is
acceptable to the City.)
• Not enough control of HOA areas because the developer has the majority vote
on the HOA board. (This is an HOA matter with additional information
provided later in this report.)
• Turnover of recently planted landscaped areas from developer's responsibility for
maintenance to HOA for maintenance without a maintenance period or final City
approval of landscaping. (This issue is addressed later in this report.)
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Honorable City Council
May 5, 2010
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• Desire to separate water meters of future LIVID, HOA and developer controlled
landscaping areas. (Separate water meters from LMD and HOA areas are
required.)
• Desire for additional vehicular access including the use of the second gated
driveway. (This is not warranted based on current traffic levels.)
• Question on whether the developer can annex vacant lots into the HOA, and if
that is in compliance with the Covenants, Conditions, and Restrictions (CC&R's)
recorded for the project. (This is an HOA matter with additional information
provided later in this report.)
• Question on whether the developer needs to provide an HOA resident board
members with a budget analysis to determine the impacts or benefits of the
developer's proposal to annex vacant lots into the HOA. (This is an HOA
matter.)
• Lack of communication from developer to the HOA resident board members and
resident members. (This is an HOA matter.)
After listening to the concerns, the City Council directed staff to provide a report about
the City's role in reviewing landscaped areas within HOA areas and whether or not the
CC&R's allow for the developer to annex vacant lots without City or homeowner
approval.
DISCUSSION
HOA Landscaping
Typically, common landscaped areas within HOA areas are turned over by the
developer to the HOA for maintenance upon the completion of each project phase.
Prior to allowing development of homes within new communities, the City reviews and
approves landscaping plans for common HOA areas, as typically conditioned on
projects. As required in the City's Landscape Design Standards and Guidelines, staff
inspects the installation of landscaping and irrigation of HOA common areas to ensure
consistency with approved plans for final approval prior to the turnover of maintenance
of common areas from developer to HOA.
Community Development and Parks and Recreation staff have received an email from
the developer requesting City inspection of installed landscaping of Homeowner's
Association slopes behind Shadow Wood Drive and Mammoth Peak Drive, and
common landscape areas along the internal multi-use trail; as these areas are proposed
for turn over from the developer to the Homeowner's Association for maintenance.
Section 4.2 of the City's Landscape Design Standards and Guidelines provides City
installation review requirements, as follows:
"4.2 Landscape Condition Compliance Review
Prior to completion of the landscaping and prior to final inspection, the City's
landscape consultant shall inspect the site and certify that the landscape complies
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with these standards and guidelines per the attached inspection schedule. The
applicant shall notify the City a minimum of forty-eight (48) hours prior to inspection.
Upon completion of the installation of the landscaping and prior to final inspection,
the applicant's landscape consultant shall inspect the site and certify that the
landscape complies with these standards and guidelines. Certification shall be
accomplished by completing the Certificate of Compliance checklist (Using
Attachment VII, of the Landscape Design Standards and Guidelines, as provided
with this letter). Concurrently or afterwards, the City's landscape consultant shall
inspect the landscape planting and irrigation installations for final conformance with
the approved plans and specifications. The applicant must also employ a certified
backflow tester to certify the backflow device.
A second inspection of residential common areas, commercial or industrial projects
shall be conducted by the City's landscape consultant one year after certification to
assure condition compliance including irrigation efficiency and plant viability."
Staff requested that the developer file a Certificate of Compliance checklist to be
completed by the project's Landscape Architect of record, for the installed landscaping,
along with a zoning clearance application and fee, requesting the City's inspection of
landscaping and irrigation installation.
The developer has not submitted the required zoning clearance application, and
therefore staff has not inspected the slopes. The areas are not associated with final
approval of a project phase, so normally inspection would not occur at this time.
However, because construction may not resume for months or years and the developer
is proposing turnover of the slopes to the HOA for maintenance, staff believes that City
inspection of the subject landscape areas should occur now. Once a zoning clearance
application is filed requesting an inspection, along with sufficient deposit to cover staff
time for review and inspection, staff would inspect the slopes and require any necessary
corrections to ensure consistency with City approved landscaping plans. Staff would
then conduct a follow-up inspection after a 90-day maintenance period to ensure
survivability of new planting and to verify conformance with approved landscaping and
irrigation plans.
Conveyance of Common Areas and Annexation of Vacant Lots to HOA
Rules governing the conveyance of common areas and annexation of property to the
HOA are contained in the CC&R's. Although the original language in the CC&R's
requires City staff review and approval as part of the project condition compliance
monitoring, the City is not a party to CC&R's and has no authority in the approval or
monitoring of the conveyance of common areas or annexations of property to the HOA.
The City's only role in reviewing the CC&R's is to ensure they are consistent with all
conditions of approval and terms of the Development Agreement. The CC&R's also
require review and approval by the California Department of Real Estate before the
close of escrow on the sale of any houses. The CC&Rs are between the HOA Board,
the developer, and the members of the HOA.
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Article 3, Section 17 on page 38 provides that the Declarant (developer) shall convey to
the Association fee simple title, an easement, or a lease over the Association Property
(common areas) in each Phase of the project. Such conveyance is required to occur
"prior to" or concurrently with the sale of the first Lot in such Phase. The HOA is
required to take title to the Association Property even if they are still disputing the
character of the improvements on such property (Section 17d). In other words, it
appears that the Developer can unilaterally transfer slopes, etc. to the HOA for
maintenance if those slopes are within a Phase that already has retail home or lot
sales.
With respect to the questions whether or not the developer can convey common areas
or annex vacant lots into the HOA, the following sections of the CC&R's, provided in
Attachment 2, address this issue. An interpretation of these provisions should be made
by the parties to the CC&R's, and not the City.
ARTICLE III, Section 17; {pages 38, 39 & 40}
ARTICLE IV, Sections 1, thru 9; {pages 40, 41, 42 & 43}
ARTICLE VI, Section 7; {page 66}
ARTICLE XVI, Sections 1, thru 7; {pages 115, 116, 117 & 118}
FISCAL IMPACT
None.
STAFF RECOMMENDATION
Receive and file report.
Attachments:
1. Site Map
2. CC& Rs, ARTICLE III, Section 17; ARTICLE IV, Sections 1, thru 9;
ARTICLE VI, Section 7; and ARTICLE XVI, Sections 1, thru 7
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d access to the Community for purposes of installation, operation, maintenance, repair,
insp n, replacement and removal of alarm system cabling and all related facilities a
equipment. easements shall be freely transferable to any other person or entity fo e
purpose of provi such services. The exercise of all rights reserved hereunder 1 not
unreasonably interfere the Owner's use and enjoyment of the Community.
Section 15. ervation of Construction Rights. Without li ' ng the rights of
Declarant set forth in Article II h 'nabove, nothing in this Declaratio all limit the right of
Declarant to establish additional licen easements and rights-o ay in favor of Declarant,
utility companies, private purveyors of utili ervices or o as may, from time to time, be
reasonably necessary for the development,mainte ce proper operation of the Community.
The foregoing rights established and reserved by D t shall be subject only to the applicable
regulations and requirements of the Public cies. The going rights of Declarant may be
assigned by Declarant to any successor or part of Declaran interest in the Community by
an express assignment recorded in Official Records of Ventura Co ty.
Section 16. servation of Easements Over Associatio rope . Declarant
hereby reserves the ri grant nonexclusive easements over the Associatio roperty in favor
of Owners of an exable Property which is annexed pursuant to this Deciara , and upon
the records' of a Notice of Annexation affecting all or any portion of the Anne able operty,
the O described in this Declaration shall automatically obtain nonexclusive easemen er
sociati Prtv which ig nut of said Annexable
Section 17. Transfer of Association Property to Association.
(a) Conformance with Plan of Development. Declarant shall convey
to the Association fee simple title to, an easement over or leasehold interest in, the
Association Property in each Phase of the Community, if any, prior to or concurrently
with the first Close of Escrow for the sale of a Lot in such Phase. Such conveyance shall
be subject to the Protective Covenants set forth in this Declaration and to any other
matters of record or apparent at the time of conveyance. All such conveyances shall be
made in conformity with Declarant's general plan for the development of the
Community, as such general plan may be modified, from time to time by Declarant, in its
sole discretion.
LYONNOORPAR K/CC&R S-013
(1 in/o6) 38
CC ATTACHMENT 2
307
(b) Completion of Association Propert y. In the event that
Improvements proposed to be constructed within the Association Property have not been
completed as of the recordation of the Notice of Annexation for such Improvements, as
evidenced by a valid Notice of Completion recorded in the Official Records of Ventura
County, the completion of such Improvements shall be assured in accordance with
Section 11018.5 of the California Business and Professions Code, or any similar statute
hereinafter enacted, and the applicable regulations of the DRE.
(c) Commencement of Association Responsibilities. The
Association's responsibility to maintain the Association Property in each respective
Phase of the Community shall commence upon the latter of. (1) first day of the month
following the first Close of Escrow for the sale of a Lot in such Phase to a bona fide
purchaser; or(2) recordation of the grant deed conveying the Association Property to the
Association. The Association's responsibility to maintain the Maintenance Areas in each
respective Phase shalt commence upon the first day of the month following the first Close
of Escrow for the sale of a Lot in such Phase. Notwithstanding the foregoing, if the
contractors or subcontractors of Declarant are contractually obligated to maintain or
warrant the landscaping or other Improvements on the Association Property (or
Maintenance Areas) for a specified period in which said contractors or sub-cocithc"tors
shall perform such maintenance, the Association shall not interfere with the performance
of such warranty or other contractual maintenance obligations. Maintenance performed
by such contractors or subcontractors shall not serve to postpone the commencement of
Assessments pursuant to this Declaration,nor entitle an Owner to any offset or reduction
in the amount of such Assessments.
(d) Character of Improvements to Association Property, Disputes.
The nature, design, quality and quantity of all Improvements to the Association Property
(and Maintenance Areas) shall be determined by Declarant, in its sole discretion. The
Association shall be obligated to accept title to the Association Property and to undertake
all maintenance responsibilities for the Association Property (and Maintenance Areas)
when fee title, easement or other rights are conveyed and/or maintenance responsibilities
are tendered by Declarant pursuant to subparagraphs (a) and (c) above. In the event that
a dispute arises between Declarant and the Association with respect to the nature, design,
LYON/MOORPARK/CC&RS-013 39
(11/1/06)
308
quality or quantity of the Improvements, or the acceptance of m
responsibilities therefor, the Association shall be obligated to accept title to
over the Association Property and undertake maintenance responsibilitic
resolution of the dispute.
ARTICLE IV
THE ASSOCIATION
Section 1. Membership. Every person or entity who or which is an Owner, as
defined in this Declaration,shall be a Member of the Association. The foregoing is not intended
to include persons or entities who hold an interest in any Lot in the Community merely as
security for the performance of an obligation.
Section 2. Classes of Membership. The Association shall have three (3)
classes of membership, as follows:
(a) Class A Members. Initially, the Class A Members shall be all of
the Owners (other than Declarant) of Lots in the Community which are subject to
the levy on Assessments. Declarant shall not be a Class A Member for so long as
the Class B membership shall exist. Upon the conversion of the Class B
membership as provided below, Declarant shall become a Class A Member with
respect to the Lots owned by Declarant which are subject to the levy of
Assessments. The Class A Members who own a Lot which is subject to the levy of
Assessments are entitled to one (1) vote for such Lot. When a Lot is owned by
more than one (1) Owner, the vote for such Lot shall be exercised as such Owners
determine among themselves, but in no event shall more than one (1) vote be cast
with respect to any Lot. The Association shall recognize the vote cast by a co-
Owner, unless another co-Owner shall cast a conflicting vote, in which case both
votes shall be null and void and not recognized by the Association.
(b) Class B Member. The Class B Member shall be Declarant. The
Class B Member shall be entitled to three (3) votes for each Lot it owns in the
Community which is subject to the levy of Assessments. The Class B membership
shall cease and shall be converted to Class A membership upon the happening of
® either of the following events,whichever occurs earlier:
LYON/MOORPARK/CC&RS-013 40
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1 The second anniversary of the first Close of Escrow for the
sale of a Lot pursuant to the original issuance by the DRE of the most recently
issued Final Subdivision Public Report for a Phase of the Community;or
(2) The fourth anniversary of the first Close of Escrow for the sale
of a Lot pursuant to the original issuance by the DRE of the Final Subdivision
Public Report for the first Phase of the Community.
The Class B Member shall have no right to vote in the election of
the Directors until the expiration of the three year terms of the Class C Directors, as
referenced below.
(c) Class C Member. The Class C Member shall be Declarant. The
Class C Member shall be entitled, by its sole vote, to elect a majority of the
members of the Board of Directors (e.g., two [2] Directors of a three [3] member
Board) of the Association at the first annual meeting of Members of the
Association. Each Class C Director shall have a three(3) year term. The Class C
membership shall automatically terminate after the first annual meeting of
Members of the Association; provided, however, the Class C membership will not
terminate for purposes of Declarant's right to replace any Class C Director for the
unexpired portion of the original three(3) year term of that directorship, or to elect
a majority of Directors if the Board is.increased to more than three(3)members.
Unless a specific provision of the Articles, the Bylaws or this Declaration requires the
approval of a greater percentage, any action taken by the Association which must have the
approval of either (i) the Members of the Association, or (ii) the "total voting power" of the
Association,before being undertaken shall require the vote or written assent of at least a majority
of the Class B Members and at least a majority of the Class A Members, so long as both the
Class A and Class B memberships exist. At such time as the Class B membership ceases and
converts to Class A membership as provided above, any action taken by the Association which
must have the approval of either (i) the Members of the Association, or (ii) the "total voting
power"of the Association, before being undertaken shall require the vote or written assent of at
least a majority of all Class A Members and at least a majority of the Class A Members other
than the Declarant. Notwithstanding the foregoing, any action by the Association pursuant to the
LYON/MOORPARK/CC&RS-0 I l 41
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Article in this Declaration entitled "Enforcement of Bonded ObIigations„ shall only require a
majority of the voting power of the Members,other than the Declarant.
Section 3. Special Voting Procedures for Election of Directors. So long as
the Class B or Class C memberships shall remain in effect, the Class A Members shall be entitled
to solely elect at least twenty percent(20%)of the members of the Board.
Section 4. Vesting of Voting Rights. The voting rights attributable to any
given Lot in the Community shall not vest until the Assessments provided for in this Declaration
have been levied by the Association against such Lot.
Section 5. Adiustment of Voting Rights. The voting rights in the Association
shall be adjusted upon the annexation of a subsequent Phase, as provided for in this Declaration.
Such adjustment shall become effective upon the first Close of Escrow for the sale of a Lot in
such Phase.
Section 6. Transfer. The Association membership held by any Owner of a
Lot shall not be transferred, pledged or alienated in any way, except as incidental to the sale of
such Lot and the membership shall be automatically transferred upon the sale of such Lot. In the
event of such sale, the Association membership may only be transferred, pledged or alienated to
the bona fide purchaser or purchasers of the Lot, or to the Mortgagee (or third-party purchaser)
of such Lot upon a foreclosure sale-,-deed-in lieu or other remedy set forth in the Mortgage. Any
attempt to make a prohibited transfer is void and will not be reflected in the books and records of
the Association.
Section 7. Proxies. Votes may be cast in person or by proxy. Proxies must be
filed with the Secretary before the appointed time for each meeting. Every proxy shall be
revocable and shall automatically terminate upon the earliest of the following: (a) the
conveyance of a Lot by the Owner; (b) the date of automatic termination, if any, specified in the
proxy, but not to exceed three(3) years from the date of issuance of the proxy; or(c) eleven(11)
months from the date of issuance of the proxy, if no automatic termination date is specified in the
proxy. Any form of proxy or written ballot distributed to the membership of the Association shall
afford an Owner the opportunity to specify a choice between approval and disapproval of each
matter or group of matters to be acted upon at the meeting for which said proxy was distributed,
except it shall not be mandatory that a candidate for election to the Board be named in a proxy.
The proxy or written ballot shall provide that, where the Owner specifies a choice, the vote shall
LYON/MOORPARK/CC&RS-013 42
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be cast in accordance with that choice. In addition, the proxy shall also identify the person or
persons authorized to exercise the proxy and the length of time it shall be valid.
Section 8. Record Dates. For the purpose of determining Members entitled to
notice of any meeting, to vote or to exercise any other rights in respect of any lawful action, the
Board may fix, in advance,record dates as provided in the Bylaws.
Section 9. Declarant's Extended Rights to Inspect and Cony Association
Books and Records, Audit Financial Records, Attend Meetings, and Receive Distributions of
Minutes. In addition to Declarant's rights as an Owner and a Member of the Association as
provided in the Association Documents, for so long as Declarant owns any portion of the
Community or the Annexable Property and continuing until the tenth (10th) anniversary of the
Close of Escrow for the sale of the last Lot in the Community pursuant to a transaction requiring
the issuance of a Final Subdivision Public Report by the DRE, Declarant shall be entitled to do
each of the following:(i) during normal business hours,inspect and copy, at Declarant's cost and
expense,all Association books and records(including,without limitation,all financial statements
and maintenance books and records); (ii) conduct an independent audit of the Association's
financial books and records,at Declarant's cost and expense; (iii) receive timely notice of, attend
and speak at all regular and special meetings of the Board and all regular and special meetings of
the Members (and any comments made by Declarant at any such meeting shall be accurately
noted in the minutes prepared for such meeting); and(iv)upon delivery of written request to the
Association and subject to reimbursement by Declarant of the copying and mailing costs
incurred by the Association, receive all distributions of minutes, proposed minutes or summary
of minutes of meetings of the Board and meetings of the Members.
section 10. Fair Election Procedures. The Board shall ales and
Regula in accordance with the procedures prescribed by Cal' ivil Code Section
1357.100 et seq., do all of the following:
(a) am aign Materi a Board shall ensure that if any candidate
for election or Mem ating a point of view is provided access to any
Association m ewslette Internet Web sites during a campaign for
purpo are reasonably related to tha on, equal access shall be provided
candidates and Members advocating a point o .ncluding those not
endorsed by the Board, for purposes that are reasonably related to the e e
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Section sessments. The Board shall provide notice
by first class mail ers of any increase in ial Assessments not less than
nor more than sixty(60)days prior to such increase becoming
Section 7. Date of Commencement of Regular Assessments: Due Dates.
Subject to the terms of any maintenance and/or subsidy agreement entered into between the
Association and Declarant and except as otherwise provided below, Regular Assessments shall
commence as to all Lots within a Phase of the Community on the first day of the month after the
occurrence of either of the following: (i)the first Close of Escrow for the sale of a Lot to a bona
fide purchaser in such Phase pursuant to a transaction requiring the issuance of a Final
Subdivision Public Report issued by the DRE;or(ii)the conveyance of any Association Property
in such Phase to the Association. Thereafter, for each subsequent Phase, Regular Assessments
shall commence on the first day of the month after the occurrence of either of the following
events: (a) the first Close of Escrow for the sale of a Lot to a bona fide purchaser in such
subsequent Phase; or (b) the conveyance of any Association Property in such Phase to the
Association. The first Regular Assessments shall be adjusted according to the number of months
remaining in the fiscal year as set forth in the Bylaws. The Board shall fix the amount of the
Regular Assessment at least thirty(30)days in advance of each Regular Assessment period.
Notwithstanding the foregoing, the conveyance of any Lot in the Community
which is being used by Declarant as a model home, sales office, design center or for other sales
and/or marketing purpose (collectively referred to as a "Model Home) shall not serve to
commence the levy of Regular Assessments or any other Assessments against such Model
Home. Regular Assessments and all other Assessments shall be suspended against such Model
Home until the first day of the month following the earlier of the following events: (i) Declarant
has discontinued using such Lot as a Model Home and any construction to convert the Model
Home back to a habitable Lot has been completed; or(ii) any Lot which is not a Model Home
and which is in the same Phase as such Model Home has been sold (and the escrow closed) to a
member of the general public pursuant to a transaction requiring the issuance of a Final
Subdivision Public Report. During the period of time a Model Home is not subject to the levy of
Assessments as provided herein, Declarant shall, at its sole cost and expense, maintain such
Model Home and keep same in an as-new condition.
LYO N/MOORPARK/CC&R"13
(1111/06) 66
313
Section 3. Effect of Amendments. No amendment of the As ton
Docu is shall affect the rights of any Mortgagee whose lien was created prior t ordation
of such am ent, unless such Mortgagee consented thereto in writing, or i eemed to have
consented thereto rovided herein.
Section Amendments to Conform With Mort R uirein nts. It is the
intent of Declarant that the ociation Documents and the munity in general meet all
requirements necessary to purchase, arantee, insure or idize any Mortgage of a Lot in the
Community by FHLMC, FNMA and A. In erance of said intent, Declarant may
amend this Declaration without the consent o e Members at any time after the Close of
Escrow for the first sale of a Lot in the munity ecording a written instrument setting
forth the amendment, provided that amendment is n to cause this Declaration to
comply with the requirements the DRE, FHLMC, FNMA or the GNMA; provided,
however, that any such dment shall be effective only if Decl ails a copy of the
amendment to all o foregoing entities which are, or have agreed to be, a lder, insurer or
guarantor of a Mortgage, and does not,within thirty(30)days thereafter,recei notice of
l disappro m any such entity. Said amendments shall not be recorded by Declarant un er
t I
the iration of such thirty(30).day period.
ARTICLE XVI
ANNEXATION OF ADDITIONAL PROPERTY
Additional property may be annexed to and become subject to this Declaration as
set forth in this Article.
Section 1. Annexation Pursuant to Approval. Any person or entity who owns
any real property(other than the Annexable Property) and who desires to annex said property to
the scheme of this Declaration and to subject it to the jurisdiction of the Association,may record
a Notice of Annexation as described in Section 3 of this Article, upon obtaining the approval in
writing of: (a) the Declarant so long as Declarant owns any portion of the Property and/or
Annexable Property; and(b) the Association pursuant to the vote or written assent of sixty-seven
percent(67%)of the total voting power of the Association.
Section 2. Annexation Pursuant to General Plan. Declarant may, without the
assent of the Association or its Members, annex all or any part of the Annexable Property
LYON/MOORPARK/CC&RS-013 1 15
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described in Exhibit "B" to this Declaration so as to make such Annexable Property part of the
Community and subject to this Declaration,provided and on condition that:
(a) The development of the Annexable Property shall be in substantial
conformance with the overall general plan of development for the Community originally
submitted to and approved by the Public Agencies;and
(b) A Notice of Annexation, as described in Section 3 of this Article,
is recorded on the portion of the Annexable Property being annexed.
Section 3. Notice of Annexation. The annexation of additional property
authorized under this Article shall be made by recording a Notice of Annexation, or similar
instrument, covering said property. The Notice of Annexation shall include at least the
following:
(a) A reference to this Declaration, which shall include the date of
recordation and the instrument number for the recordation of this Declaration in the
records of the County Recorder for Ventura County;
(b) A statement that this Declaration shall apply to such portion of the
Annexable Property as set forth herein;
3 (c) A description of the portion of the Annexable Property being
annexed; and
- (d) A description of any additional Association Property and/or
Maintenance Areas, (including, but not limited to, the Fuel Modification Zones and
Association Walls)located in the Annexable Property.
A Notice of Annexation may annex solely Association Property and/or
Maintenance Areas so long as such annexation would not violate the provisions in this
Declaration regarding increases in Regular Assessments. A Notice of Annexation may contain
such complementary additions to and modifications of the Protective Covenants set forth in this
Declaration which are necessary to reflect the different character, if any, of the Annexable
Property and which are not inconsistent with the general scheme of this Declaration. Except as
set forth in this Section, no Notice of Annexation shall add, delete, revoke, modify or otherwise
alter the Protective Covenants set forth in this Declaration.
LYON/M00"AMCC&R5-0 U 116
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Section 4. Parties to Notice of Annexation. For so long as Declarant has the
right to annex all or any portion of the Annexable Property into the Community without the
approval of the Association, each Notice of Annexation covering property owned by Declarant
shall be executed only by Declarant.
Section 5. Effective Date of Annexation. A Notice of Annexation recorded
on a subsequent Phase shall become effective immediately upon the first Close of Escrow for the
sale of Lot in said Phase. Thereafter,the rights, obligations,privileges,duties and liabilities of
the Owners of Lots in said Phase shall be governed by this Declaration. In the case of the
annexation of only Association Property, the Notice of Annexation shall become effective
concurrently with the recordation of the deed conveying such Association Property to the
Association. A Notice of Annexation which annexes only a Maintenance Area shall become
effective immediately upon recordation of such Notice of Annexation.
Section 6. Amendments to a Notice of Annexation. Notwithstanding any
other provisions of this Declaration to the contrary, a Notice of Annexation may be revoked,
amended and/or restated solely by the Declarant at any time prior to such Notice of Annexation
becoming effective as set forth herein. After a Notice of Annexation has become effective, it
may be amended by the requisite affirmative vote of Members (and first Mortgagees, if
applicable) in only such Phase, rather than by the vote of all Members of the Association (and
fast Mortgagees,if applicable)in the Community on the following conditions:
(a) Such amendment applies only to the Annexable Property described
in said Notice of Annexation; and
(b) Such amendment shall in no way contradict, revoke or otherwise
alter any of the Protective Covenants set forth in this Declaration.
Section 7. Right of De-Annexation. Declarant shall have the right to revoke a
Notice of Annexation and de-annex a Phase that was previously annexed into the Community so
as to delete said Phase from the scheme of this Declaration and from the jurisdiction of the
Association,provided and on condition that each and all of the following conditions are satisfied:
(i)no escrow has closed for the sale of a Lot in the Phase being deannexed; (ii)Declarant has not
exercised any vote attributable to any Lot in the Phase being deannexed; (iii) Assessments have
not commenced as to any Lot in the Phase being deannexed; (iv) no Association Property in the
Phase being deannexed has been conveyed to the Association; and (v) a Notice of De-annexation
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(I U1106) 117
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is executed by Declarant and recorded with the County Recorder. Additionally, the Association
shall have the right to deannex any portion of the Association Property which it owns so as to
delete said portion from the scheme of this Declaration and from the jurisdiction of the
Association in furtherance of a conveyance of such portion of the Association Property pursuant
to Section 2 of Article III of this Declaration.
ARTICL
ENFORCEMENT OF BONDED OBLIGATIONS
Section 1. Enforcement of Bonded Obligations. In the event th e
Improve is to the Association Property have not been completed prior to the is ce of a
Final Subdi ion Public Report by the DRE for a Phase of the Community, an e Association
is obligee and a bond or other arrangement(hereinafter referred to as th and')to secure a
performance of commitment of Declarant to complete such im ements, the following
provisions shall app
Board Action. The Board shalt nsider and vote on the question
of action by the ciation to enforce the obliga ' under the Bond with respect to any
Improvements for wh a Notice of Comple ' has not been filed within sixty(60)days
after the completion dat ified for improvements in the Planned Construction
Statement appended to the d. If Association has given an extension in writing for
the completion of any Associa roperty Improvement, the Board shall consider and
vote on the aforesaid questio a .ce of Completion has not been filed within thirty
(30)days after the expimti of such ext 'on.
(b) tin of the Mem In the event that the Board determines
not to initiate action enforce the obligations un the Bond,or in the event the Board
fails to consider d vote on such question as pro above, the Board shall call a
special meetin f the Members for the purpose of votin override such decision or
such failure act by the Board. Such meeting shall be called a rding to the provisions
of the B s dealing with meetings of the Members, but in an ent, such meeting
shall eld not less than thirty-five (35) days nor more than forty-fiv ) days after
rec t by the Board of a petition for such meeting signed by Members repres five
rcent(5%)of the total voting power of the Association.
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