MOUNTAIN HOUSE COMMUNITY
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Neumiller & Beardslee
Post Office Box 20
Stockton, California 95201-3020
Attention: Duncan R. McPherson
CERTIFICATE OF SECOND AMENDMENT TO MOUNTAIN HOUSE COMMUNITY MASTER RESTRICTIONS
1. Date; Declarant; Amendment; Property Subject to Declaration. This Certificate of Second Amendment to the Mountain House Community Master Restrictions ("Amendment") is made this _ day of June, 2003, by TRIMARK COMMUNITIES LLC, a California limited liability company ("Declarant"), and MEMBERS OF THE DESIGN REVIEW COMMITTEE to amend the Mountain House Community Master Restrictions, recorded December 4, 2002, as Instrument No. 2002-0217750, Official Records of San Joaquin County ("Original Declaration"), as amended by that certain "Certificate of First Amendment to Mountain House Community Master Restrictions", recorded April 11,2003, as Instrument No. 2003-077799, Official Records of San Joaquin County ("First Amendment"). The Original Declaration and First Amendment are collectively referred to as the "Declaration". The real property currently subject to the Declaration and this Amendment is that real property described in Exhibit A to the Original Declaration in Exhibit A to that document entitled in part, "Declaration of Annexation of Property into Mountain House...," recorded January 28,2003, as Instrument No. 2003-017883, Official Records of San Joaquin County ("First Annexation"), and in Exhibit A to that document entitled in part, "Declaration of Annexation No. 2 Mountain House Phase No. 3 of San Joaquin County" ("Second Annexation"), recorded May 2,2003, as Instrument No. 2003-094354.
2. Purpose of Amendment. This Amendment has the purpose of: (i) correcting a typographical error in Section 3.03.B of the Restrictions to clarify the consents of owners of property subject to a Declaration of Annexation; (ii) amending Sections 8.01.A and B to clarify the power of the Declarant to consent to amendments to the Declaration; (iii) amending Section 8.02.C to provide for the MHCSD to receive voting information; (iv) making amendments to Sections 4.04.J, 5.07.A.3, and 7.05 to correct errors and words inadvertently omitted; (v) adding a new Section 8.01.E to allow for the restatement of the Declaration when the Declaration is amended; (vi) adding a new Section 4.05.U and Section 4.06.D to control the use of balconies and porches; and (vii) confirming the sufficiency of the Original Declaration and the First Amendment as they apply to all real property currently subject to the Declaration.
3. Authority to Amend; Authority to Execute and Acknowledge Amendment. This Amendment is made pursuant to Section 8.01 of the Declaration. That Section provides for the certification by Declarant and a majority of the three (3) members of the Design Review Committee, that the approval of this Amendment by the vote or written consent of at least fifty-one percent (51%) of the Owners of Lots in the Community has been obtained, as required by Subsection 8.01.A of the Declaration.
4. Amendments. The Declaration is amended as follows:
A. Section 3.03.B. Section 3.03.B of the Declaration is amended and restated in full, as follows:
Method of Annexation. Any annexation or rescission or amendment to an annexation undertaken in accordance with this Section shall be effective upon the Recording of a Declaration of Annexation, rescission or amendment that is signed and acknowledged Declarant or MHCSD, as applicable, and, in addition, by the owners of the property described in the document of Annexation, rescission or amendment if such owners are different from Declarant or MHCSD, as applicable.
B. Section 8.01.A. Section 8.01.A is amended and restated in full, as follows:
Amendment or Termination. Unless specifically provided to the contrary elsewhere in this Declaration, this Declaration may be terminated, or any provision thereof as is in effect from time to time with respect to all or any part of the Community may be amended or terminated upon: (i) the approval by vote or written consent of fifty-one percent (51%) of the voting power of the Owners; (ii) the written consent of the Declarant until the earlier of (a) when Declarant no longer owns land that is either subject to the MHCSD or is within the area, as of the date of this amendment subject to the Mountain House Master Plan, adopted by the Board of Supervisors of the County on November 10, 1994, or (b) when Declarant terminates this power by a Recorded written instrument, recorded against all property subject to this Declaration; and (Hi) the Recordation of a certificate ("Certificate of Amendment") executed as provided in Subsection B of this Section, setting forth in full the amendment or amendments to this Declaration so approved, including any portion or portions thereof terminated, and certifying that the amendment or amendments have been approved by the required vote or consent of the Owners. The votes or written consents needed to approve any amendment or termination are governed by Subsection D of this Section and the Section entitled "Voting Districts." A termination of this Declaration shall become effective in the manner provided for amendments. This Declaration shall terminate on the expiration date provided in the certificate of termination. For the purposes of this Declaration, Declarant shall be considered to be an "Owner" when a Lot is owned or subject to an option held by Declarant, or by a partnership of which Declarant is a general partner, a limited liability company of which Declarant is a manager, or a corporation of which Declarant owns ten percent (10%) or more of the beneficial interest. No amendment can be made that would place additional use or architectural restrictions on the Commercial and Industrial Area or any portion thereof, or change the provisions of this sentence, without the approval of fifty-one percent (51%) of the voting power of any Commercial and Industrial Area so affected.
C. Section 8.01.B. Section 8.01 .B is amended and restated in full, as follows:
Owner Acknowledgments. As long as Declarant retains the power to consent to any amendment to the Declaration as provided by Subsection A (ii) of this Section, Declarant and a majority of the members of the Design Review Committee shall execute and acknowledge the Certificate of Amendment or any rescission or amendment of a Certificate of Amendment. If Declarant has terminated its power to consent to any amendment to the Declaration as provided by Subsection A (ii) of this Section, an officer of the MHCSD shall execute and acknowledge the Certificate of Amendment.
D. Section 8.02.C. Section 8.02.C is amended and restated in full, as follows:
Tabulation of Votes in Voting Districts. Declarant shall appoint a designee ("Designee ") to tabulate and count all Cast Votes on a Voting Proposal in each Voting District, except as otherwise provided. In voting Districts in Phases annexed by the MHCSD, the MHCSD has the power to appoint the Designee for each District. The MHCSD has the power to appoint the Designee for each Voting District where Declarant or its assignee has given up or lost the power to appoint the Designee. The Designee shall also tabulate all Imputed Votes in the same proportions as the Cast Votes and Advise Declarant of the total votes tabulated for each Voting District. If the total Cast Votes and Imputed Votes in all Voting Districts in the aggregate are in favor of a Voting Proposal, the Designee shall provide that information to Declarant or the MHCSD, as applicable, for inclusion in the Certificate of Amendment. A Voting Proposal is approved when at least fifty-one (51%) of the Cast Votes and Imputed Votes in the aggregate are in favor of such Voting Proposal.
E. Section 4.04.J. Section 4.04.J is amended and restated in full, as follows:
Motorcycles; Bicycles. The maintenance of motorcycles, trail bikes, off road vehicles, or bicycles is prohibited, except within enclosed areas on Lots where they are not visible from adjoining streets or in locations approved by the Review Entity in cases where the Review Entity has jurisdiction. The use of Lots for dirt biking or trail biking or for other similar recreational uses is prohibited. This Subsection J does not prohibit the storage of bicycles in racks adjacent to Multifamily Residential Areas, public areas, commercial or industrial buildings, or adjacent to pick up stops or stations for public transportation or the parking of motorcycles in the parking lots or parking structures serving the Multifamily Residential Areas and the Commercial and Industrial Areas.
F. Section 4.05.1). Section 4.05.U is added to the Declaration, as follows:
Balcony and Porch Use. Balconies and front porches may be furnished only with usual and customary outdoor chairs and tables, which shall be maintained in good condition and repair. No other furniture or equipment shall be allowed on balconies and front porches. Balconies and front porches shall not be used for storage and shall not be used to keep or hold dogs.
G. Section 4.06.D. Section 4.06.D is added to the Declaration, as follows:
Balcony Use. Balconies may be furnished only with usual and customary outdoor chairs and tables, which shall be maintained in good condition and repair. No other furniture or equipment shall be allowed on balconies. Balconies shall not be used for storage and shall not be used to keep or hold dogs.
H. Section 5.07.A.3. Section 5.07.A.3 is amended and restated, in full, as follows:
Personal Information. The Rules may provide for information to be supplied to the MHCSD by each Owner with regard to the ownership and transfer of ownership to each Lot, the persons living in each residential Unit, the vehicles kept in the Residential Area, and other information reasonably necessary or convenient to administer the Community.
I. Section 7.05. Section 7.05 is amended and restated in full, as follows:
No Design Review Committee Approval. Improvements by Declarant do not need DRC or MHCSD approval pursuant to this Declaration, but Improvements by Builders or other persons require DRC approval except as provided by Section 6.01.B.2.
J. Section 8.01.E. Section 8.01 .E is added to the Declaration, as follows:
Restatement of Declaration. The Declaration may be restated in the following manner.
1. General. The persons who have the power to execute and acknowledge a Certificate of Amendment ("Certifiers ") have the power without the necessity of the consent by the Owners or the MHCSD, to restate this Declaration or any portion of it when the Declaration is amended, or at anytime following such amendment. The restatement shall be effective upon execution and acknowledgment of the restatement by the Certifiers and the Recordation of the restatement. Upon Recordation of the restatement, the restatement shall supercede the then existing Declaration and its amendments or the amended portion thereof, in its entirety.
2. Form of Restatement. The restatement shall restate the entire text of the then existing Declaration or the portion thereof that is restated, with the following exceptions: (i) changes incorporating all amendments; (ii) changes made to rearrange, replace, or delete the text or to make typographical corrections to the text for consistency with the approved amendments; (Hi) the addition of a statement that the Certifiers have authorized the restatement pursuant to the Subsection E; (iv) changes made to delete any provision declared illegal by controlling constitutional or statutory enactment, by regulation, or by controlling judicial opinion; and (v) changes needed to distinguish the restatement from the original document, such as the title and Article, Section and Subsection numbering changes.
5. Confirmation of Prior Recorded Community Documentation. Declarant and the members of the Design Review Committee hereby confirm the sufficiency and validity of the Restrictions and First Amendment as amended by this Second Amendment, and certify that the amendments contained in the First Amendment and this Second Amendment have been approved by the written consent of at least fifty-one percent (51%) of the Owner of Lots in the Community as required by Section 8.01.A of the Declaration.
6. No Other Changes. Except as amended by this Amendment, the Declaration is ratified and shall remain in full force and effect.