CC&Rs

HILLER HIGHLANDS FOUR ASSOCIATION

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SECOND AMENDED AND RESTATED

DECLARATION OF COVENANTS, CONDITIONS, AND RESTRI= CTIONS

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ARTICLE 1. PREAMBLE

Hiller Highl= ands Four Association, a California Non-Profit Mutual Benefit Corporation (hereinafter referred to as “Association”), hereby adopts, purs= uant to Section 1355 of the Civil Code, the following Second Amended and Restated Covenants, Conditions and Restrictions relating to the Development known as Hiller Highlands Phase Four.

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W I T N E S S E T H:

WHEREAS, Hil= ler Highlands Four Association is a membership organization comprised of all the Owners of the Lots located in the City of Oakland, County of Alameda, = California, described as

Tract 3358, = Oakland, Alameda County, California, as shown on the subdivision map so named, recorded May 3, 1972, in map book= 74, pages 81-84, Alameda County Records

which proper= ty is a Development within the meanin= g of California Civil Code Section 1351 and is subject to the provisions of the Davis-Stirling Common Interest Development Act; and

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WHEREAS, Mem= bers of the Association desire to amend and restate the restrictions heretofore ado= pted under a general plan of improvement for the benefit of all of said Lots and Improvements and the Owners thereof;

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NOW, THEREFO= RE, Association hereby declares that all of the property described above shall = be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions which are for the purpose of providing a means of managing the Development and of protecting the value and desirability of, a= nd which shall run with, the real property and be binding on all parties having any right, title or interest in the described properties or any part thereo= f, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof:

ARTICLE 2. DEFINITION= S

Unless the c= ontext otherwise specifies or requires, the terms defined in this Article 2 shall, for all purposes of this Declaration, have the meanings herein specified.

Architect= ural Control Committee shall mean the committee which sha= ll be created by the Board of Directors of the Association pursuant to Article 7 = and Section 5.6.11.

Architect= ural Rules shall mean rules adopted by the Bo= ard of Directors, with the advice of the Architectural Control Committee and pursu= ant to Article 7.

Articles<= span style=3D'mso-spacerun:yes'> shall mean the Amended Articles of Incorporation of Hiller Highlands Four Association which are filed in the Office of the Secretary of State of= the State of California.

Associati= on shall mean Hiller Highlands Four Association, the California Non-pro= fit Mutual Benefit Corporation described In Article 5, including its successors= and assigns. The Governing Board = of the Association shall be a Board of Directors (the “Board”). The Association shall be governed = by these Covenants, Conditions and Restrictions (the “Declaration”) and by the Association’s Bylaws (the “Bylaws”).

Associati= on Assets shall mean all property and assets= owned by the Association or the Owners as tenants in common.

Beneficia= ry shall mean a mortgagee under a mortgage as well as a beneficiary und= er a deed of trust.

Board shall mean the Board of Directors of the Association.<= /b>

Bylaws shall mean the Bylaws of the Association, which are or shall be adop= ted by the Association.

Common Ar= ea shall mean the Common Area Lots which are owned equally by the Owners of Residence Lots 1 through 80, each Owner having 1/80th undivided interest in said Common Area Lots. The Co= mmon Area consists of Lots 81, 82, 83, 84, 85, 86, 87 and 88, as shown on the map described above.

Common Ar= ea Personal Property = shall mean all personal property and equipment purchased by the Association with respect to the operation and maintenance of Common Areas.

Declarati= on shall mean the within Declaration of Covenants, Conditions, and Restrictions of Hiller Highlands Four Associatio= n, and as said Declaration may from time to time be amended.=

Declarant= shall mean Hiller Highlands Four Association, and its successors and assigns.

Exclusive= Use Common Area shall&= nbsp; mean a portion of the Common Area designated by the Declaration for = the exclusive use of one or more, but fewer than all, of the owners of the sepa= rate interests and which is appurtenant to the separate interest or interests.

Governing Documents shall mean collectively this Declaratio= n, the Articles of Incorporation, the Bylaws, and the Association Rules and Regulations.

Guest shall mean a person who has possession of the separate interest for= a term of one month or less. A = guest who remains in possession of the separate interest more than one month shal= l be deemed a Resident.

Insurance Committee shall mean the committee which shall be created by the Board pursuant to Section 5.6.9.7.

Landscape Committee shall mean the committee which sha= ll be created by the Board pursuant to Section 5.6.11.
Landscape Rules shall mean rules adopted by the Board, = with the advice of the Landscape Committee.

Lot shall mean and refer to any single plot of land shown upon any reco= rded subdivision map of the property described in Exhibit A hereto, with the exception of the Common Area and the Exclusive Use Common Area within the <= st1:place w:st=3D"on">Lot. = When appropriate within the context of this Declaration, the term "Lot" shall also include the Residence and other improvements constructed on a Lot.

Manager shall mean the = person or corporation who may be appointed as such pursuant to Section 5.7.4.

Member= shall mean every person or entity who holds a membership in the Association, pursuant to Sec= tion 5.2, and whose rights as a Member are not suspended pursuant to Article 5 below.

Nuisance<= span style=3D'mso-spacerun:yes'> shall mean anything which is injurious to health, including but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so = as to interfere with the comfortable enjoyment of life or property, or unlawfu= lly obstructs the free passage or use, in the customary manner, of any public street.

Occupant<= span style=3D'mso-spacerun:yes'> shall mean an owner, resident, guest, invitee, tenant, lessee, sublessee, or other person in possession of the separate interest.<= /o:p>

Owner shall mean the record Owner, whether one or more persons or entitie= s, of the fee simple title to any Lot situa= ted in the Project, and any related interest in the Common Area, excluding those having such interest merely as security for the performance of an obligation. The term "Owner" shall also include the Vendee of a Lot under a contract of sale (Real Property Sales Contract).<= /span>

Parking A= rea shall mean any portion of the Common Area which has been established and designated for the uses as set forth in Section 4.2.1.2.<= /b>

Parking Rules shall mean rules adopted by the Board, = with the advice of the Streets, Parking and Lighting Committee, pursuant to Sect= ion 3.1.16.

Party Wal= l shall mean any wall of a Residence, located on a property line dividin= g any Residence, which wall is commonly used by any such Residence.=

Patio Gardens shall mean those areas of the Common Area Lots which were establish= ed by the original Developer of the Project as patio rear yard areas for the particular use of an individual residential Lot by the construction of enclosures adjacent to said residential Lots.

Project shall mean all of the real property described in the Subdivision Ma= p, together with all improvements made thereon.

Quorum shall mean one third (1/3) of the voting power of the Association unless otherwise provided in the Articles of Incorporation, this Declaratio= n or the Bylaws.

Residence= shall mean a building or buildings on a Lot used for residential purposes.

Resident<= span style=3D'mso-spacerun:yes'> shall mean any person residing in a residence Lot, whether he be an Owner, long-term guest, tenant, live-in domestic employee or residing family member of any of the above.

Rules shall mean the rules adopted by the Board, as they may from time to time be in effect pursuant to the provisions of Section 5.9.<= /b>

Streets, = Parking and Lighting Committee shall mean the committee which shall be created by the Board pursuant to Section 3.1.17.

Subdivisi= on Map shall mean that certain Subdivision map entitled Tract 3358, Oakland, recorded in the Office of the County Recorder= of Alameda County, California, on the 3rd day of May, 1972, in Book 74 of Maps= at Pages 81-84, et seq.

Subject Property shall include all of the real property referred to on the Subdivision Map.

ARTICLE 3. RIGHTS, EASEMENTS AND RESTRICTIONS: RESIDENTIAL AREA

3.1 Residential Area: Permitted Uses A= nd Limitations

Lots within = the Residential Area shall be for the exclusive use and benefit of the Owners thereof, subject, however, to all of the following limitations and restrictions.

3.1.1 Residential Use. Each residence Lot s= hall be used as a residence for a single family and for no other purpose. No commercial activity or business= shall be operated or maintained in the project, except for "home offices&quo= t; that do not generate traffic, clients or noise in excess of that generated = by reasonable domestic use.

3.1.2 Rental of Residence. An Owner shall be en= titled to rent the Residence situated on his Lot subject to the restrictions conta= ined in Section 3.1.1, above, provided, however, that the term of said rental sh= all not be for a term less than sixty (60) days. Any rental or lease of a Residence= shall be subject to the Governing Documents, including the Rules. The Owner shall provide each tenan= t or lessee with a copy of this Declaration and a copy of the Articles of Incorporation, Bylaws and all pertinent Association Rules and Regulations.<= span style=3D'mso-spacerun:yes'> The Owner shall at all times be responsible for his tenant's or lessee's compliance with all of the provisi= ons of this Declaration, the Bylaws, and the Rules with respect to the use and occupancy of the Residence and the use of the Common Area.

3.1.3 Non-Resident Owners. Non-resident owners = shall at all times provide to the Association's Board of Directors their current mailing address and phone number.

3.1.4 Animals. No animals of any ki= nd shall be maintained, bred or kept on any Lot or in the Common Area except t= hat dogs, cats or other customary household pets in a reasonable number and size may be kept, provided, however, that they are not kept, bred, or maintained= for any commercial purposes, and provided further that the Rules may limit or restrict the keeping of such pets. All dogs belonging to Residents or their guests must be attended, leashed, and controlled when having access to the Common Areas or contiguous unenclosed areas of individual Lots. Owners are responsible for clean up and removal of animal waste prod= ucts deposited by animals under their control or the control of their guests.=

3.1.5 Structures for Animals<= !--[if supportFields]>tc "3.1.5 Structures for Animals &quo= t; \l 3. No structure for the= care, housing or confinement of any house or yard pet shall be maintained so as t= o be visible from neighboring property.

3.1.6 Antennas Installed in Exclusive Use Common Areas. Installation of a ra= dio, video, or television antenna, including a satellite dish, designed to recei= ve television signals that is or will be located on property within the exclus= ive use or control of the antenna user, and that is not otherwise prohibited by law, must be within applicable requirements of the California Civil Code Section 1376 and the Code of Federal Regulations, 47 CFR Section 1.4000, or comparable superceding statute. As allowed by applicable law, the Board may request notification prior to inst= allation of such radio, video, or television antenna, including a satellite dish. The Board may disallow installatio= n of antennas or satellite dishes with a diameter or diagonal measurement exceed= ing one meter, or with a height more than 12 feet above the roof line and/or require that installation be to a height that the antenna, if it topples, w= ill be wholly contained within the owner's property. As allowed by applicable law, the = Board may prohibit installations of individual antennas or satellite dishes when = the Association has installed a central system. As allowed by applicable law, the = Board may disallow installation of antennas or other devices that are not designe= d to receive television signals. As allowed by applicable law, the Board may enforce reasonable painting or oth= er camouflage requirements provided such requirements do not impair reception. As allowed by appl= icable law, the Board may establish and enforce collection powers that allow the Association to recover for any resulting Association property damage and ot= her costs arising from harm caused by an Owner's installation of such installed antennas or satellite dishes. Such powers of the Board to levy a Reimbursement Assessment are pursuant to Sect= ion 6.4 below. As allowed by appl= icable law, the Board may establish and impose penalties on Owners who violate this Section and applicable Rules. The Board has the authority to require that any contractor installing any anten= na or satellite dish provide appropriate proof of liability and workers' compensation insurance prior to commencing work, and requiring that such contractor agree in writing to indemnify and defend the Association from any claims arising out of or in connection with his work.

3.1.7 Utility Service. No lines, wires or o= ther devices for the communication or transmission of electric current or power, including telephone, television, and radio signals, shall be constructed, placed or maintained anywhere in or upon any Lot unless the same shall be contained in conduits or cables constructed, placed and maintained undergro= und or concealed in, under or on buildings or other approved structures.

3.1.8 Prohibitions Regarding Certain Conveyances and Structures. No boat, van, mobile= home, recreational motor home, trailer of any kind, truck, camper larger than a h= alf (½) ton pick-up truck, dilapidated motor vehicle or permanent tent, = shed or similar structure shall be parked, kept, placed, maintained, constructed, reconstructed or repaired upon any Lot, private street or elsewhere on the Common Area within the Project in such a manner as will be visible from neighboring property or adjacent streets; provided, however, that the provi= sion of this Section 3.1.8 shall not apply to emergency vehicle repairs or temporary construction shelte= rs or facilities maintained during, and used exclusively in connection with the construction or any work of improvement approved by the Board. No commercial vehicles of any natu= re shall be parked or stored on the exterior of any Lot or on the private stre= ets of the Project, except for commercial vehicles providing services to the Ow= ners of Lots or the Association, and in that event only for the duration necessa= ry to provide such services.

3.1.9 Nuisances. No rubbish, deb= ris or pet droppings of any kind shall be placed or permitted to accumulate on a L= ot or on the Common Area, and no odors shall be permitted to arise there from,= so as to render any Lot or the Common Area unsanitary, unsightly, harmful or detrimental to any of the property in the vicinity thereof or to the occupa= nts thereof. No nuisance shall be permitted to exist or operate upon any Lot so as to be harmful or detriment= al to any property in the vicinity thereof or to its occupants. No noxious or offensive activities= shall be carried on in any Lot or in the Common Area, including the Association's streets, nor shall anything be done therein which may be or become an annoy= ance or nuisance to the other residents. Each Owner shall comply with all requirements of the local or state health authorities and with all other applicable governmental ordinances regarding occupancy and use of Residence= s. Each Owner is accountable to the Association and other Owners for the conduct and behavior of persons residi= ng in or visiting his Lot. Any d= amage to the Common Area caused by such persons shall be repaired at the sole exp= ense of the Owner of the Lot where such persons are residing or visiting; the Bo= ard may levy a Reimbursement Assessment, pursuant to Section 6.4 below, to reco= ver expenses incurred for such repairs. The Board is entitled to determine if any noise, odor or activity constitutes a nuisance.

3.1.10 Noise. Residents are entitl= ed to the quiet enjoyment of their homes, and excessive noise shall be prohibited= at all times. No Owner shall eng= age in or permit any occupant or guest to engage in noise, including, but not limi= ted to the unreasonable noise of pets or playing of musical instruments or play= ing of sound reproduction equipment, including but not limited to stereo speake= rs or other loud speakers, which would unreasonably disturb another resident's quiet enjoyment of his or her Lot or of the Common Area. Other sources of noise or vibratio= n, such as from treadmills and hot tub motors, are likewise subject to the preceding restrictions. No exterior speakers, horns, whistles, bells or other sound devices, except security devices used exclusively for security purposes, shall be located, = used or placed on a Lot.

3.1.11 Trash Containers and Collection. All garbage and tras= h, other than recycled materials, shall be placed and kept in covered containe= rs, with covers securely closed. Recycled materials may be placed in uncovered recycling collection containers; however such materials must be secured so as to avoid spillage = from these containers. All types of trash containers shall be placed on level locations, to avoid toppling.   In no event shall such conta= iners be maintained so as to be visible from neighboring property except on regul= arly scheduled scavenger pick-up days.

3.1.12 Clothes Drying Facilities. No outside clothesli= nes or other outside clothes drying or airing facilities shall be maintained on any Lot unless the Architectural Control Committee finds such facilities to be adequately concealed so as not to be seen from any adjacent property.

3.1.13 Fences and Walls. All fences and concrete or masonry walls in the Project, with the exception of the fences described in Section 4.5, shall be erected, repaire= d or maintained by the Association or, if by Lot Owners, only upon prior written approval of the Board. The fe= nces described in Section 4.5 shall be repaired, maintained and painted in accordance with standards established by the Board, but with the cost to be borne by the Lot Owner or Owners having exclusive license to the area enclosed. However, when segme= nts of the fences described in Section 4.5 separate two Patio Gardens, the cost of structural repairs for such segments shall be borne jointly by the Owners of the two Lots entitled to use the adjacent Patio Gardens or singly by the responsible Owner of one of the two adjacent Lots, in accordance with the procedures and the principles of accountability which would apply to party fences, as set forth in Section 3.3. The cost of routine repainting and maintenance of one side or the other of such segments of fences separating Patio Gardens shall be borne by the Lot Owner on whose side a segment of su= ch fence is to be repainted or routinely maintained.<= /p>
3.1.14 Fires and Smoking. There shall be no ex= terior fires whatsoever except barbecue fires contained within receptacles designed for such purpose. When used outdoors, all smoking products, such as cigarettes, cigars, etc., and their ashes shall be completely extinguished and discarded in secure containers.<= o:p>

3.1.15 Garages. Each Owner shall be responsible for the maintenance and repair of the interior of the Garage included within his Lot. Garages shall be used only for the parking of motor vehicles, storage and workshop pursuant to such Rules as the Association may from time to time adopt. Notwithstanding other permissible uses of space in Garages, Lot Residents owning one or two motor vehicles shall leave such garage space or spaces available as shall be required for the regular parking of said vehic= le or vehicles.

3.1.16 Parking. The Board shall have= the power and duty to establish reasonable Parking Rules for the regulation of parking in the Project, including but not limited to the power to prohibit parking by Residents along private streets, except for specified brief peri= ods, and the power to prohibit parking by Residents in the Parking Areas, which = are reserved for guests and others, as set forth in Section 4.2.1.2. However, t= he City of Oakland shall be, and is hereby granted an easement for access over, through and across all streets within the Project for purposes of enforceme= nt of all municipal parking codes. Said streets may be so posted by the Association, subject to the Cit= y of Oakland's approval of all such posting.

3.1.17 Streets, Parking and Lighting Comm= ittee. The Board shall appo= int a Streets, Parking and Lighting Committee to assist the Board in supervising = the maintenance, repair and restoration of the private streets and walks, the Parking Areas, and the Association lighting installations throughout the Project; and to assist the Board in its duty to enforce the Parking Rules.<= b>

3.1.18 Machinery and Equipment= . No commercial machin= ery or equipment of any kind shall be placed, operated or maintained upon or adjac= ent to any Lot within the Residential Area except such machinery or equipment a= s is usual and customary in connection with the use, maintenance or construction= of a Residence or appurtenant structures in the Project.

3.1.19   Dry Rot, Structural Pests, I= nsects and Rodents. No Lot Owner shall p= ermit any thing or condition to exist upon his Lot which shall induce dry rot or excessive moisture on his or adjacent Lots; attract or give access to termi= tes or other structural pests; or breed, harbor or attract infectious plant diseases, noxious insects or rodents.

3.1.20 Responsibility for Repairs, Replac= ement, or Maintenance re Damage by Wood-Destroying Pests or Organisms. The Association shal= l be responsible for the repair of all damages to the Common Areas caused by wood-destroying pests or organisms, and shall be entitled to recover the co= sts thereof as a Special Assessment if necessary. The individual Owners shall be responsible for the repair of all damages to the Exclusive Use Common Areas= and to the Residences occasioned by wood-destroying pests or organisms. In the event that an Owner fails or refuses to take reasonable steps to eradicate wood-destroying pests in the Exclusive Use Common Area appurtenant to his interest, or in the Residence,= the Association may eradicate the pests and may impose a Reimbursement Assessme= nt on the Owner, following notice and an opportunity for a hearing. The Association shall be responsib= le for arranging for extermination and abatement of wood-destroying pests or organ= isms in the Common Area. The Owner= s shall be financially responsible for extermination costs for extermination of wood-destroying pests in Exclusive Use Common Areas and in the Residences.<= span style=3D'mso-spacerun:yes'> The Association may cause the temp= orary, summary, removal of any occupant of a Residence for such periods and at such times as may be necessary for prompt and effective treatment of wood-destro= ying pests or organisms. The costs= of temporary relocation during the repair and maintenance of areas damaged by wood-destroying pests or organisms, and the cost of repairing damage to oth= er owners' Residences occasioned by an Owner's failure or refusal to timely exterminate such pests in his own property shall be borne by the Owner(s) of the Lot(s) affected. The Association shall give notice of the need to temporarily vacate, pursuant to such treatment, repair, or maintenance, in accordance with applicable law.<= o:p>

3.1.21 Restrictions on Further Subdivisio= n. No Lot shall be furt= her subdivided nor shall less than all of any such Lot be conveyed by an Owner thereof. No easement or other interest in a Lot shall be given without the prior written approval of the Board of Directors.

3.1.22 Signs. No signs whatso= ever (including, but without limitation, commercial and similar signs) which are visible from neighboring property shall be erected or maintained on any lot except: such signs as may be required by legal proceedings; residential identification signs, subject to= the approval of the Board of Directors as to suitability; and not more than one "for sale" or "for rent" sign per Lot having maximum fa= ce area of two square feet, pursuant to the Rules of the Association, or as otherwise permitted by California Civil Code Section 713.=

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3.2 Construction and Alteration of Improvements

No construct= ion or alteration of the exterior of improvements on a residence Lot shall be undertaken without prior written approval of the Board pursuant to Article = 7 of this Declaration. No construc= tion or alteration of the interior of a Residence shall be undertaken where such construction or alteration would compromise the structural integrity of the unit or the adjacent unit or units or would impair the effectiveness of sou= nd control between residence Lots. The construction or alteration of fences and walls, whether located entirely on residence Lots or extending from the Common Area into residence Lots, shall only be undertaken in such manner as to be in compliance with Section 3.1.13 and Section 4.5. No Resident or his agent shall remove or alter landscaping= in those areas of an individual residence Lot where, pursuant to Section 5.6.7, the Association has jurisdiction over landscaping.=

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3.3 Party Walls, Fences and Roofs =

3.3.1 Gen= eral Rules of Law to Apply. Each wall which is b= uilt as part of the original construction of the Residences in the Project and placed on the dividing line between the Lots, or any fence constructed on t= he dividing line between any Lots, shall constitute a party wall or fence and,= to the extent not inconsistent with the provisions of this section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. Each Owner of a Lot upon which a p= arty wall or fence exists shall own to the center of such wall or fence. Where adjoining Residences as part= of the original construction have a contiguous roof, which roof intersects or crosses a Lot line which divided these Lots, such roof shall constitute a p= arty roof, and the provisions thereof shall apply to such party roofs.

3.3.2 Sharing of Repair and Maintenance<= /span>. The Owners of each L= ot upon which a party wall, fence or roof is located shall have a reciprocal non-exclusive easement to each contiguous Lot for the purpose of maintaining the party wall, fence or roof. The cost of reasonable repair and maintenance of a party wall, fence or roof sh= all be shared by the Owners who make use of the wall, fence or roof in proporti= on to such use.

3.3.3 Destruction by Fire or Other Casua= lty. If a party wall, fen= ce or roof is destroyed or damaged by fire or other casualty, any Owner who has u= sed the wall, fence or roof may restore it, and if the other Owners thereafter = make use of the wall, fence or roof, they shall contribute to the cost of restoration thereof in proportion to such use. Such contribution shall be made wi= thout prejudice, however, to the right of the Owner who originally restored the w= all, fence or roof to call for a larger contribution from such other Owners under any rule of law regarding liability for negligent or willful acts or omissi= ons.

3.3.4 Weatherproofing. Notwithstanding any = other provision of this section, an Owner who by his negligent or willful act cau= ses a party wall to be exposed to the elements shall bear the whole cost of fur= nishing the necessary protection against such elements.

3.3.5 Right to Contribution Runs With La= nd. The right of any Own= er to contribution from any other Owner under this section shall be appurtenant to the land and shall pass to such Owner's successors in title.<= /b>

3.3.6 Arbitration. In the event of any dispute arising concerning a party wall, fence or roof, or under the provis= ions of this section, such dispute shall be submitted in writing to the Architectural Control Committee, which shall then consider the submission a= nd advise the Board of Directors. The written decision of the Board of Directors shall be final and binding on the parties.

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3.4 Owners' Easements

3.4.1 Easement to Common Area= . Every Owner shall ha= ve a non-exclusive right and easement of use and enjoyment in and to the Common Area, which shall be appurtenant to and shall pass with the title to every Lot.

3.4.2 Utilities Easements. There is reserved an easement over, under and through each unit and residence Lot and the Common Area for installation, maintenance and repair of each and every utility service, including, but not limited to, sewage, drainage, water, electricit= y, gas, telephone and television service for this project and each additional project referred to in that certain Declaration of Reciprocal Covenants and Easements-Hiller Highlands, Series No. AY‑70422, recorded June 8, 196= 6, at Reel 1782, Image 970, Declaration of Covenants, Conditions and Restricti= ons, Hiller Highlands Recreational Area recorded July 19, 1966 as Recorder's Ser= ies AY‑86411, Official Records of Alameda County. The exercise of the easements rese= rved by this Section 3.4 shall not result in damage to existing improvements including lawns, shrubbery, or trees, unless adequate compensation is made = for any such damage.

3.4.3 Easements for Party Walls and Encr= oachments. Whenever two Residen= ces are located adjacent to each other with two separate walls, defined as a Pa= rty Wall in Section 3.3, or whenever Residences are located adjacent to the Com= mon Area, such Residences are hereby granted exclusive appurtenant easements for encroachments for overhanging eaves or roofs as originally constructed and = for encroachments due to settlement or shifting of structures for any cause whatsoever and encroachments due to construction, reconstruction or repair = of the Residence which may so encroach, and for utility meters, lines, wires, pipes and conduits, over and on the adjoining Lot or Common Area, as servie= nt tenement, with the contiguous Lot as dominant tenement.

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3.5 Repair and Reconstruction <= /b>

3.5.1 Damages Limited to One Residence/L= ot. If any improvements = on a Lot are damaged or destroyed by fire or any other calamity, and said damage= is limited solely to a particular Residence, the insurance proceeds from an Association blanket physical damage insurance policy, if any is adopted, sh= all be paid to the Owner of said Residence, and the Mortgagees thereof, as their respective interests may appear, and such Owner or Mortgagee shall use said proceeds to rebuild or repair the damage.&= nbsp; In the event that the insurance proceeds are insufficient to complete such rebuilding or repair, the Owner shall be responsible for the payment of such additional sums as may be necessary to complete such rebuilding or repair. In the event said Own= er does not commence such rebuilding or repair within a reasonable time, the Association may bring suit for an injunction to compel the Owner to perform said rebuilding or repair.

3.5.2 Damages Extend to Two or More Lots= . If any improvements = on a Lot are damaged or destroyed and such damage or destruction extends to the exterior of the improvements on two or more Lots, the insurance proceeds fr= om an association blanket physical damage insurance policy, if any is adopted, shall be paid to the Association. Each Owner shall thereupon contract for the repair or rebuilding of = the damaged improvements, in accordance with Article 7 of this Declaration. In the event the insurance proceed= s are insufficient to pay all costs of repairing or rebuilding of the damaged improvements, the board shall pay the insurance proceeds to an Insurance Trustee to be approved by the Board, which proceeds shall be held for the benefit of the Owners of the damaged Lots and their Mortgagees, as their respective interests may appear, and pursuant to an insurance trust agreeme= nt consistent with the provisions of the Declaration, approved and executed by= the Board.

In such inst= ance that any such insurance proceeds are insufficient, the board shall, as soon= as possible but no later than thirty (30) days after the occurrence of the determination that the insurance proceeds are insufficient, call a special meeting of the Owners for the purpose of determining whether to impose a special assessment, pursuant to the procedures of Section 6.3 for the costs= of repairing and reconstructing the damaged or destroyed improvements, which c= osts are in excess of the available insurance proceeds. In the event that the Owners deter= mine not to imposed such a special assessment, each Owner of that Lot on which t= he improvements have been damaged or destroyed shall be responsible for the pr= oportionate share of such costs in excess of the available insurance proceeds, if any.<= o:p>

To the exten= t that there are any insurance proceeds unexpended relative to such loss, such proceeds shall be distributed to the Owners of the damaged Lots and the mor= tgagee or beneficiary of any mortgage or deed of trust upon any such Lot, as their interests may appear, according to the respective fair market value of the damaged Lots at the time of the destruction as determined by an independent appraisal.

3.5.2.1 In the event that damage or destruction of improvements on adjoining Lots requires the repair or rebuilding of a party wall, party roof or other building component which provides weatherproofing protection to an improvem= ent on an adjoining Lot (hereinafter referred to as a "weatherproofing component"), the following requirements shall apply:=

3.5.2.1.1= Each Owner of a Lot on which an improvement has been damaged or destroyed shall commence the repair and/or rebuilding of the improvement so damaged or destroyed, in accordance with approved plans under Article 8 of = this Declaration, within ninety (90) days of the commencement of framing of a residence on an adjoining Lot or, in the case of partial damage or destruct= ion, within ninety (90) days of the commencement of repair to a building compone= nt on an adjoining Lot which depends for weatherproofing protection, in whole = or in part, upon the repair of a weatherproofing component on the Owner's Lot. In the event the weather= proofing component to be repaired on the Owner's Lot is a party wall, roof or fence,= the cost of repair shall be determined in accordance with Section 3.3 of this Declaration.

3.5.2.1.2=    If an Owner of a Lot on which a weatherproofing component has been damaged or destroyed fails to commence repairs or rebuilding within the time frame set forth in Section 3.5.2.1.1, that owner shall be responsible to pay for the cost of installing necessary weatherproofing on the building component(s) on adjoining Lot(s), as determined by the Board of Directors.<= span style=3D'mso-spacerun:yes'> The necessary weatherproofing may include, but shall not be limited to, the cost of installing plywood sheath= ing on the exterior of the improvement on the adjoining Lot(s). The Owner shall make payment to the Association in full or in accordance with a payment plan approved by the Board of Directors, in its discretion, within thirty (30) d= ays of written notice from the Association of the scope and cost of the necessa= ry weatherproofing. In the event= an Owner of a Lot who has been given written notice of the cost of necessary weatherproofing fails to make payment to the Association in accordance herewith, the Association may pay for the cost of installation of the neces= sary weatherproofing and shall ass= ess the cost thereof to the Owner as a Reimbursement Assessment in accordance w= ith Section 6.4 of this Declaration.

3.5.2.2 Except for reasonable extensions of time that may be granted in the discretion of the Board of Directors, as provided in this section, the Owne= r of a Lot with a damaged or destroyed improvement must commence repair or rebuilding of the damaged or destroyed improvement within one year of the d= ate of the damage or destruction. In the event a Lot with a damaged or destroyed improvement is sold prior to the commencement of repair or rebuilding, the repair or rebuilding of the damag= ed or destroyed improvement must commence no later than one year after the fir= st close of escrow on the sale of the Lot after the damage or destruction occurred.

3.5.2.3 In each case where the repair or rebuilding of a damaged or destroy= ed improvement has commenced under this section, the improvement shall be brou= ght to a watertight shell within one hundred eighty (180) days of commencement = of the repair or rebuilding. The= Board of Directors shall grant an Owner who has commenced repair or rebuilding reasonable extensions of time for inclement weather, if requested by the Ow= ner in writing. In the event an O= wner fails to bring the damaged or destroyed improvement on his or her Lot to a watertight shell within one hundred eighty (180) days of commencement of the repair or rebuilding, plus any extensions of time granted by the Board of Directors hereunder, the owner shall immediately furnish to the Association= a completion bond in an amount adequate to bring the improvement upon the Own= er's Lot to a watertight shell plus any additional amounts necessary to provide adequate weatherproofing to the improvements on adjoining Lot(s) under paragraph 3.5.2.1.

3.5.2.4   In all cases where damage or destruction of an improvement occurs o= n a Lot, the Owner shall immediately remove all damaged improvements, including, but not limited to, any portions of the foundations which protrude from the ground on said Lot and shall leave the Lot in a safe condition and visually compatible with the landscaping and design of adjoining Lots and/or the Com= mon Area. In the event the Owner fails to comply with the requirements of this paragraph, the Association may, after thirty (30) days written notice to the Owner of its intent to make repairs and the estimated cost thereof, underta= ke removal of the foundations, safeguarding the condition of the Lot and ensur= ing the visual compatibility of the Lot with the landscaping and design of the adjoining Lots and/or Common Area. The actual cost of the repairs, plus the cost of any necessary professional services incurred by the Association, shall be assessed to the Owner as a Reimbursement Assessment in accordance with Article 6, Section 6= .4 of this Declaration.

3.5.2.5 In the event an Owner fails to comply with the requirements of this Section 3.5, the Association may, in addition to any other remedies or righ= ts provided herein or which the Association may have in law or in equity, brin= g an action for an injunction to compel the Owner to repair or rebuild and/or po= st a bond to cover the cost of any repair or rebuilding required under this section. The Association shal= l be entitled to collect from an Owner attorney's fees and costs incurred by the Association as a result of an action by the Association to bring an Owner in compliance with this Section 3.5.

3.5.2.6 Notwithstanding the above provisions, the Board of Directors may, in its discretion, grant to an Owner reasonable extensions of any time periods= set forth above for delays beyond the control of the Owner caused by the City of Oakland, such as a delay in the approval of plans or issuance of building permits or delay caused by the failure of the Owner's insurance company to release funds to the Owner for the repair or rebuilding.<= /span>

3.5.2.7 Notwithstanding any other provision of this section, an Owner who by his or her negligent or willful act or omission causes damage or destructio= n to an adjoining Lot or improvement thereon shall be responsible for the cost of the repair or rebuilding thereof plus any other damages arising therefrom in accordance with general principles of law.

3.5.3 Insurance. Nothing herein shall= be construed to require the Association to purchase any blanket policy or to in any way limit individual members from maintaining any amount or kind of insurance they deem necessary.

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3.6 Association’s Right of Entry= and Repair

The Associat= ion or its agents may enter any Lot whenever such entry is reasonably necessary in connection with the performance of any maintenance or repair for which the Association is responsible. T= he Association's right of entry under this Declaration shall be immediate in c= ase of an emergency originating in or threatening the Lot or other Lots or Comm= on Area or any person, and the Association's work may be performed under such circumstances whether or not the Owner or his or her lessee is present.

In all non-e= mergency situations, the Association or its agents shall furnish to the Owner, and h= is or her lessee, if applicable, two (2) days’ written notice of its int= ent to enter the Lot, specifying the purpose and scheduled time of such entry a= nd shall make every reasonable effort to perform its work and schedule its ent= ry in a manner that respects the privacy of the persons residing therein.=

The Associat= ion shall have the right, subject to the consent of an Owner, at any time and f= rom time to time, at its own cost, to cut and remove any trees or shrubs, or re= move or trim the branches of any trees or shrubs, on any Lots or any portion of = the Common Area if it deems it desirable to do so for the benefit of other Lots= or for the general benefit of the Association.

ARTICLE 4. RIGHTS, EASEMENTS AND RESTRICTIONS: COMMON AREA

4.1 Permitted Uses, Construction and Alteration of Improvements

The Common A= rea shall be held, maintained and used to meet the common interests of the memb= ers of the Association, their tenants and guests as provided by this Declaratio= n.

4.1.1 Limitation on Construction<= /b>. No person other than= the Association or its duly authorized agents shall construct, reconstruct, refinish, alter or maintain any improvement upon, shall make or create any excavation or fill upon or shall destroy or remove any tree, shrub or other vegetation upon any Common Area, except in Patio Gardens, in which case the Owner's activities must be done in conformity with Section 4.5. In those ar= eas of individual residence Lots where, pursuant to Section 5.6.7, the Associat= ion has jurisdiction over landscaping, the Association shall exercise such cont= rol over the installation, maintenance and removal of landscaping as if in fact such areas were a part of the Common Area.

4.1.2 Damage or Destruction of Common Ar= ea or to Landscaped Areas of Individual Lots Under the Jurisdiction of the Association. In the event of any = damage or destruction to the Common Area or to landscaped areas of individual Lots under the jurisdiction of the Association or any of the improvements or facilities located thereon, the Association shall immediately undertake to repair and reconstruct any such damage or destruction substantially in accordance with the original design or standard of construction of the dama= ged or destroyed Common Area, improvement or facility. The Association shall utilize all available insurance proceeds to accomplish such repair or reconstruction.

In the event= the insurance proceeds are insufficient to cover all of the costs for such repa= ir or reconstruction, the Board shall pay the insurance proceeds to a savings = and loan association, bank or trust company as may be approved by the Board, wh= ich proceeds shall be held for the benefit of the Owners and their mortgagees, = as their respective interests may appear, and pursuant to an insurance trust agreement consistent with the provisions of this Declaration, approved and executed by the Board. The Bo= ard shall then, utilizing such engineering and design consultants as it deems necessary, prepare a report evaluating the extent of reconstruction or repa= ir of such damage or destruction which is reasonably possible solely utilizing= the aggregate sum of the total available insurance proceeds. As soon as possible, but no later = than sixty (60) days after the occurrence of the damage or destruction, the Board shall present the report to the Lot Owners and notify all Mortgagees of the findings of said report and call a special meeting of the Owners. At such special meeting the Owners= shall determine by a majority vote whether to utilize solely the available insura= nce proceeds to reconstruct the damage or destruction in accordance with the recommendations of the report of the Board or whether to impose a Special Assessment pursuant to Section 6.3 to reconstruct the destroyed or damaged facilities beyond the recommendations of the report of the Board. Any determination to impose a Spec= ial Assessment shall be decided by a vote of a majority of the voting power of = the Association.   Any such additional Special Assessment shall be levied equally as to each Lot and be= a lien on the Lot against which said assessment is levied and enforced pursua= nt to the terms of Section 6.6.

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4.2 Owners' Non-Exclusive Easements of Enjoyment in Common Area

4.2.1 Non-Exclusive Right and Easement o= f Use and Enjoyment. Every Owner shall ha= ve a non-exclusive right and easement of use and enjoyment in and to the Common = Area (except for Patio Gardens appurtenant to other Owners' Lots), including easements for ingress and egress to said Owner's Lot for pedestrians, vehic= les, utility lines, pipes, wires and conduits which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions= :

4.2.1.1 The Board, after giving an Owner notice of a violation of the Gover= ning Documents or Rules and an opportunity to be heard, shall have the right to suspend the voting rights and right to use the Common Area by an Owner and = his tenants and guests pursuant to Section 5.10 of this Declaration.=

4.2.1.2 <= /span> Any portion of the Common Area desi= gnated as Parking Area on the Subdivision Map shall be reserved for the exclusive = use of the guests, invitees or agents of the Residents for temporary periods on= ly, subject to all of the vehicular restrictions and conditions contained elsew= here within this Declaration and subject to such duly adopted Parking Rules as t= he Association may have in force.

4.2.1.3 There shall be no obstruction of any part of the Common Area and not= hing shall be stored, kept or parked in the Common Area except in the areas designated as Parking Areas on the Map without the prior written consent of= the Board. Each Owner shall avoid= any damage to the Common Area and shall be responsible for repairing any damage= or injury to the Common Area caused by him, his tenants, his guests, his invit= ees, his licensees, or other agents.

4.2.1.4 Nothing shall be done or kept in the Common Area which will increase the rate of insurance on any of the Common Area without the prior written consent of the Board. No Owner shall permit anything to = be done or kept in the Common Area which will result in the cancellation of insurance on the Common Area or which would be in violation of any governme= ntal statute, ordinance, rules or regulations.&= nbsp; No waste shall be committed in the Common Area.

4.2.2 Easements for Encroachments= .   Each Lot adjac= ent to the Common Area is hereby declared to have an easement over all adjoining L= ots and the Common Area for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, settlement or shifting= of the building, or other similar cause or any encroachment due to building, r= oof, fireplace, balcony, or deck overhang or projection. There shall be valid easements for= the maintenance of said encroachments so long as they shall exist, and the righ= ts and obligations of Owners shall not be altered in any way by said encroachm= ent, settling or shifting; provided, however, that in no event shall a valid easement for encroachment be created in favor of an Owner or Owners if said encroachment occurred due to the willful misconduct of said Owner or Owners. In the event a struct= ure on any Lot is partially or totally destroyed, and then repaired or rebuilt, the Owners of each Lot agree that minor encroachments over adjoining Lots shall= be permitted, and that there shall be valid easements for the maintenance of s= aid encroachments so long as they shall exist.

4.2.3 Association Easementstc "4.2.3 Association Easements "= ; \l 3. There is hereby rese= rved to the Association or its duly authorized agents and representatives such easements as are necessary to perform the duties and obligations of the Association as are set forth in this Declaration, or in the Bylaws, Article= s, or Rules, if any.

4.2.4 Covenants Running with the Land. <= /span> Each of the easements provided for in this Declaration was deemed to= be established upon the recordation of the original version of this Declaration and shall thenceforth be deemed to be covenants running with the land for t= he use and benefit of the Lots and the Common Area, as the case may be, superi= or to all other encumbrances applied against or in favor of any portion of the properties which are the subject of this Declaration. In furtherance of the easements pr= ovided for in this Declaration, the individual grant deeds to Lots may, but shall = not be required to, set forth said easements.

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4.3 Delegation of Right of Use =

Any Owner may delegate his rights of enjoyment in the Common Area and in the privileges of the Association to the members of his family who reside within his Lot, to contract purchasers from such Owner, to any of his tenants who reside there= in under a leasehold interest and to his guests, subject, however, to the provisions of this Declaration and to the Articles, Bylaws and Rules of the Association. The rights and privileges of such persons are subject to suspension for the same reasons a= nd in the same manner as this Declaration provides regarding the suspension of= the rights and privileges of Owners in the Project.

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4.4 Restriction of Severability of Com= mon Area

The interest= of each Lot Owner in the use and benefit of the Common Area owned by said Owner sha= ll not be sold, conveyed or otherwise transferred by said Lot Owner separately from the ownership interest in said Lot.&n= bsp; Any sale, transfer or conveyance of such Lot shall operate to transf= er the appurtenant right to use said Common Area without the requirement of ex= press reference thereto, and the transferee shall thereupon be permitted the use = and benefit of said Common Area and the facilities located thereon.