HomeMy WebLinkAboutCT 98-21; SEAVIEW; Tentative Map (CT)..
PROJECT DESCRIPTION/EXPLANATION
PROJECT NAME: ___ S-e=a~v-ie~w..__ __________________ _
APPLICANT NAME: MSK Development. Inc
Please describe fully the proposed project. Include any details necessary to adequately
explain the scope and/or operation of the proposed project. You may also include any
background information and supporting statements regarding the reasons for, or
appropriateness of, the application. Use an addendum sheet if necessary.
Description/Explanation.
The development of 9 single family homes on a 3.97 acre infill site located in Local Facilities
Management Zone 1, located on Seaview Way, north of Chestnut Drive. This project includes an
application for a Tentative Subdivision Map, Hillside Development Permit, Site Development
Plan and an Environmental Impact Assessment. The site was previously used for agricultural
purposes and therefore does not contain environmentally sensitive material.
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ARTICLE 1
DECLARATION OF TRUST
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Trustors, deliver, convey, grant, assign and transfer to themselves as Co-trustees the
property described in the schedule(s) entitled "Trust Estate." to be held, administered
and distributed as provided in this instrument.
1.1 Trust Particulars:
Trustors are:
Name of trust:
Trustee:
Successors:
First:
Second:
HISASHI HONDA and KIYOME HONDA, husband and wife
THE HONDA FAMILY TRUST Dated 7/22/97
HISASHI HONDA and KIYOME HONDA, Co-Trustees
WAYNE HITOSHI HONDA
ANNETTE HISAKO MENDOZA
1.2 Trust Estate: The Trust estate shall consist of the property listed on the Schedule
Trust Estate together with any other property that may be later added or become
subject to this trust.
1.3 Property Status: Any community property transferred to the trust shall remain
community property after its transfer and shall be called the "community trust estate."
Either Trustors' separate property transferred to the trust shall be called the "separate
trust estate" with reference to the contributing Trustor. By designating the property as
community, the Trustors are confirming its community character or are intentionally
transmuting separate property into community property.
1.4 Addition of Property: Other property acceptable to the Trustee may be added to
the trust at any time, by Trustor or any other person, either during their lifetime or at
death; such additional property upon its receipt and acceptance by Trustee, shall
become a part of the trust estate.
1.5 Purpose: The purpose of this trust is to provide for the Trustors' health, education,
support, maintenance, comfort, welfare and happiness to the fullest extent possible.
The Trustee's goal shall be to preserve and if possible enhance the Trustors' standard
of living. The avoidance of probate, the reduction of death taxes and providing for the
residuary Beneficiaries, although important, are secondary.
1.6 Allocation of Trust Estate: The Trustee shall initially. allocate the trust estate to
the "Trust During Trustors' Joint Lives".
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
SEAVIEW
TABLE OF CONTENTS
Articles
1
RECITALS AND DECLARATION .................. : ................ 1
1.1 Property Owned by Declarant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Description of Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Planned Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
2
DEFINITIONS .................................................... 2
2.1 Articles ....... • .............................................. 2
2.2 Association ................................................. 2
2.3 Board ...................................................... 2
2.4 Bylaws ..................................................... 2
2.5 Cit:y . ~ ..................................................... 2
2.6 Common Maintenance Area .................................... 2
2. 7 Declarant ................................................... 3
2.8 Declaration .......................... : ....................... 3
2.9 Drainage and Access Easement .................................. 3
2.10 Easements .................................................. 3
2.11 Final Map ...... .-............................................ 3
2.12 FfIA ............ ., .......................................... 3
2.13 FHLMC .................................................... 3
2.14 FNMA ..................................................... 3
2.15 First Mortgage ................................ • ............... 3
2.16 First Mortgagee .............................................. 3
2.17 • Height Limit ................................................ 3
2.18 Landscape Maintenance, Drainage and Access Easement ............. 4
2.19 Lot ................... : .................................... 4
2.20 Member .................................................... 4
2.21 Non-Vehicular Access Easement ................................ 4
2.22 Mortgagee ............................... • ................... 4
2.23 Offsite Drainage Easements .................................... 4
2.24 Owner ..................................................... 4
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2.25 Owner Maintenance Area ...................................... 4
2.26 Plant ....................................................... 4
2.27 Project ..................................................... 4
2.28 VA ........................................................ 5
3 .
COMMON MAINTENANCE AREA;
MAINTENANCE RESPONSIBILITIES ............................... 5
3.1 Easement to Association and Owners ............................. 5
3 .2 Association Maintenance ...................................... 5
3.3 Owner Maintenance .......................................... 5
3 .4 Lot Drainage ................................................ 6
3.5 Soil Conditions .............................................. 6
3 .6 Filled Ground ............................................... 6
3. 7 Vehicular Restrictions ......................................... 6
3.8 Fences ..................................................... 7 _
3 .9 Limitations on Plants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION .............. 7
4.1 Membership ....................... .' ......................... 7
4.2 Voting Rights ............................................... 7
5
COVENANT FOR PAYMENT OF
ASSESSMENTS .................................................. 8
5.1 Creation of Lien and Personal Obligation for Assessments ............ 8
5.2 Purpose of Assessments ....................................... 9
5 .3 Limitations on Regular and Special Assessments .................... 9
5 .4 Individual Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.5 Uniform Rate of Assessment ................................... 11
5.6 Date of Commencement of Regular Assessments; Due Dates ......... 11
5.7 Effect ofNon-Payment of Assessments; Remedies of Association ..... 11
5.8 Assignment of Rents ......................................... 12
5.9 Subordination of the Lien to First Mortgages ...................... 13
5.10 Estoppel Certificate .......................................... 13
5.11 Personal Liability of Owner . ; ................................. 13
5 .12 Homestead Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.13 Taxation of Association ...................................... 14
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5 .14 Exempt Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.15 Uncompleted Facilities ....................................... 14
5.16 Civil Code Section 1366.1 .................................... 14
6
COlvtPLIANCE WITH GOVERNMENT AL APPROVALS ............... 14
6.1 Enforcement By City ......................................... 14
6.2 Notice and Amendment ....................................... 15
6.3 Failure of Association to Maintain the Common Maintenance Area .... 15
6.4 Special Assessments Levied by the City .......................... 15
6.5 Site Distance Corridor on Lot 9 ................................ 16
7
INSURANCE AND CONDEMNATION .............................. 16
7 .1 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7 .2 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 18
8
ANNUAL INSPECTION ........................................... 18
8 .1 By Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.2 Purpose oflnspection ....... •. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.3 Scope of Inspection .......................................... 19
8.4 Experts and Consultants ...................................... 19
8.5 Report to Owners ............................................ 19
9
LIMITATION ON LIABILITY OF ASSOCIATION'S
OFFICERS, DIRECTORS, AND COMJvUTTEE MEMBERS ............. 19 •
9.1 Claims Regarding Breach of Duty .............................. 20
9.2 Other Claims Involving Tortious Acts and Property Damage ......... 20
10
RIGHTS OF LENDERS ........................................... 21
10.1 Payments of Taxes or Premiums by First Mortgagees ............... 21
10.2 Priority of Lien of Mortgage ................................... 21
l 0.3 Curing Defaults ............................................. 21
10.4 Approval of First Mortgagees .................................. 21
10.5 Restoration of Common Maintenance Area ....................... 22
10.6 Professional Management ..................................... 22
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10.7 Notice to Mortgagees ........................................ 22
10.8 Documents to be Available .................................... 23
10.9 FHA and VA Approval ....................................... 23
10.10 Conflicts .................................................. 23
11
DEVELOPMENT RIGHTS ......................................... 23
11.1 Limitation of Restrictions on Declarant .......................... 23
11.2 Assignment of Rights ........................................ 24
11.3 Notices; Declarant's Representative ............................. 25
11.4 Declarant's Consent .......................................... 25
12
A11END:t'v1ENTS ................................................. 25
12.1 Amendments By Declarant and Members ......................... 25
12.2 Deemed Approval by First Mortgagee ........................... 27 .
12.3 Percentage of Votes .......................................... 27
13
GENERAL PROVISIONS .......................................... 27
13.1 Enforcement ............................................... 27
13.2 Severability ................................................ 28
13.3 Extension of Declaration ....................................... 28
13 .4 Litigation ................................................... 28
13.5 No Interference With City Ordinances ........................... 28
13.6 Conflict of Provisions ........................................ 28
13.7 Security ................................................... 28
13.8 Documents Provided To Prospective Purchasers ................... 29
13.9 Right to Cure Alleged Defects ................................. 29
13.10 Alternate Dispute Resolution .................................. 31
13.11 Action by Association to Enforce Bond Re Common
Maintenance Area ........................................... 3 2
EXHIBIT "A0
-CO:Mlv.10N MAINTENANCE AREA
SUBORDINATION TO DECLARATION OF COVENANTS, CONDITIONS AND
RESTRJCTIONS
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2.18 Landscape Maintenance. Drainage and Access Easement. "Landscape
Maintenance, Drainage and Access Easement" shall mean the easement for landscape
maintenance, drainage and access purposes shown on the Final Map.
2.19 Lot. "Lot" shall mean any plot ofland shown as a separate lot or parcel on any
final map or parcel map recorded against the Project. Each Lot is, and shall be deemed to be, a
"separate interest" as defined in Section 1351(1)(3) of the California Civil Code, or any
successor statutes of laws.
2.20 Member. "Member" shall mean an Owner entitled to membership in the
Association. Membership shall be appurtenant to and may not be separated from ownership of
a Lot.
2.21 Non-Vehicular Access Easement. "Non-Vehicular Access Easement" shall mean
the easement for non-vehicular access purposes over the northeasterly ten (10) feet of Lot 4 as
shown on the Final Map. The Non-Vehicular Access Easement is not part of the Common
Maintenance Area.
2.22 Mortgagee. "Mortgagee" shall mean the mortgagee wider any real property
m_ortgage or beneficiary under any deed of trust which mortgage or deed of trust encumbers any
Lot.
2.23 Offsite Drainage Easements. . "Offsite Drainage Easements" shall mean those
certain perpetual easements for private drainage purposes granted by (i) that certain Easement
Deed recorded September 22, 1999, as Document No. 1999-0646978 of Official Records of the
San Diego Recorder's office and (ii) that certain Easement Deed recorded December 21, 1999,
as Document No. 1999-0824773 of Official Records of the San Diego Recorder's Office.
2.24 Owner. "Owner" shall mean Declarant prior to the first conveyance of a Lot and,
thereafter, shall mean the record Owner, whether one or more persons or entities, of fee simple
title to any Lot which is part of the Project, including Declarant for as long as Declarant holds
title to a Lot, and including a contract vendor under a land sale contract, but excluding those
having nn interest in a Lot merely as security for the performance of an obligation.
2.25 Owner Maintenance Area. "Owner Maintenance Area" is defined in Section 3 .3
below.
2.26 Plant. "Plant" is defined in Section 3.9 below.
2.27 Project. "Project" shall mean all of the property described in Section 1.1 above,
and the Easements.
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2.28 VA. "VA" shall mean the Department of Veteran Affairs.
ARTICLE3
CONIMON MAINTENANCE AREA;
MAINTENANCE RESPONSIBILITIES
3. I Easement to Association and Owners. There is hereby granted, reserved and
created an easement in favor of the Association over, under, upon and across the Lots for
maintenance, repair and replacement of, and access to, the landscaping, irrigation system, and
drainage system in the Common Maintenance Area, and for the purpose of exercising the
Association's rights and perfonning its obligations under this Declaration, the Articles and the
Bylaws. Further, Declarant hereby grants to the Association, and the Association hereby
accepts, the Easements which (except for the Non-Vehicular Access Easement) are included
within the Common Maintenance Area and shall be maintained by the Association. In addition,
there is hereby granted, reserved and created an easement in favor of each Owner, appurtenant
to such Owner's Lot, over, under, upon and across the Common Maintenance Area for
drainage, access and related purposes.
3 .2 Association Maintenance. The Association shall maintain the landscaping,
irrigation system, and drainage system (including, without limitation, all concrete terrace drains)
in the Common Maintenance Area in good appearance and repair and in accordance with the
requirements of the City. The Association shall provide landscaping and gardening to properly
maintain and periodically replace when necessary the vegetation originally planted in the
Common Maintenance Area by Declarant. There is a separate water meter ( or meters) to
account for the water used to irrigate the slopes within the Common Maintenance Area which
are the maintenance responsibility of the Association. The Association shall be responsible for
paying the billing statements for the water used to irrigate such slopes. The Association shall
have the right to enter onto any Lot (but not within the residence) as may be necessary for the
maintenance, repair or replacement of the landscaping, irrigation system and drainage system in
the Common Maintenance Area. Any damage caused to a Lot by entry of the Association shall
be repaired by the Association at its expense, unless the damage to the Lot is a result of failure
by the Owner to comply with the provisions of this Declaration, the Articles, the Bylaws or the
rules and regulations of the Association.
3.3 Owner Maintenance. Except for the portion of the Lot located within the
Common Maintenance Area (the maintenance of which is the responsibility of the Association),
each Owner shall keep and maintain in good appearance and repair his or her Lot and the
improvements thereon, including, but not limited to, the residence, fences, walls, and catch
basins and drain lines installed for Lot drainage (the "Owner Maintenance Area"). The Owner
of each Lot shall water, weed, maintain and care for the landscaping located within the Owner
Maintenance Area of his or her Lot so that the Lot presents a neat and attractive appearance.
No Owner shall interfere with or damage the Common Maintenance Area, or interfere with or
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impede Declarant or the Association in connection with the maintenance, repair or replacement
of the Common Maintenance Area. Anything herein to the contrary notwithstanding, the Owner
of Lot 4 shall maintain the area affected by the Non-Vehicular Access Easement; provided,
however, the Owner of Lot 4 shall not in any way interfere with or impede the Association's
Non-Vehicular Access Easement.
3.4 Lot Drainage. The Lots in the Project have been graded and a drainage system
has been installed to ensure proper drainage of water from the Lots. All improvements and
landscaping on a Lot must be constructed, installed and maintained in a manner which will not
obstruct or change the existing drainage system. Any Owner who changes the drainage of his or
her Lot shall be responsible for any damages which might result to the property of such Owner,
the Common Maintenance Area and the property of the Association and the property of any
other Owner or third party.
3.5 Soil Conditions. Soils and geotechnical conditions vary throughout the Southern
California region, and soils are often expansive and composed of large amounts of rock and
may react in differing manners to various structural loads. All Lots in the Project have been
graded and compacted pursuant to the direction of a geotechnical engineer. Each Owner
acknowledges that he or she has received a copy of the soils and compaction report prepared by
a geotechnical engineer for such Owner's Lot and the Project. Each Owner agrees to deliver a
copy of such report to the person who buys his or her Lot.
Additional soils information is available at the City of Carlsbad, Public Works, 1635
Faraday Avenue, Carlsbad, California 92009.
3.6 Filled Ground. Lots in the Project may contain filled ground. It should be
recognized that deep compacted fills typically increase in moisture content and settle over time.
Settlement occurs slowly and even occurs when subsurface and surface drains are provided.
Uniform settlement, where the fill is underlain by gentle, natural ground slopes, often has no
significant adverse effect on structures and may not even be noticeable. However, if structures
are located across buried cut/fill transitions or where underlying fill depths vary non-uniformly,
noticeable distress to structures may occur. Some differential settlement has been anticipated to
occur in areas of the Project. When designing and constructing patios, gazebos, walls,
landscape features and other similar structures on a Lot, the Owner of such Lot should consult a
geotechnical engineer, and settlement should be considered and expansion joints should be
designed where needed.
Information regarding fill ground and other geological information is available at the
City of Carlsbad, Public Works, 1635 Faraday Avenue, Carlsbad, California 92009.
3.7 Vehicular Restrictions. No dune buggy, boat, trailer, recreational vehicle,
mobile home, motor home, van which is larger than 3/4 ton capacity, camper shell which is
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detached from a vehicle or mounted on a vehicle, nor truck which is larger than 3/4 ton capacity
or has a mounted camper shell which protrudes from the truck from either side or from beyond
the rear gate or above the cab ceiling, shall be parked anywhere in the Project except outside of
public view. Commercial vehicles shall be pennitted within the Project for construction
purposes, for purposes of making deliveries and for other similar purposes.
No dismantled or wrecked vehicle or equipment shall be parked, stored or deposited in
the Project within public view; and no vehicle shall be repaired in the Project within public
view. No noisy or smoky vehicles or off-road unlicensed vehicles shall be operated within the
Project.
3.8 Fences. Any fence installed by or on behalf of an Owner on his or her Lot shall
contain the same materials and shall be consistent with the fencing installed at the Project by
Declarant.
3.9 Limitations on Plants. No Owner, or any family member, guest, invitee or tenant
of such Owner, shall plant, place or maintain within the Owner Maintenance Area of his or her
Lot any tree, bush or other vegetation (hereinafter collectively referred to as "Planf') which
exceeds the height of the ridge of the roof of such Owner's residence (the "Height Limit").
Whenever any Plant within the Owner Maintenance Area of a Lot exceeds the Height Limit, the
Owner of such Lot (and any other person who causes such Plant to exceed the Height Limit)
shall immediately prune the Plant in such a manner that it no longer exceeds the Height Limit.
The foregoing provisions of this Section (including the Height Limit) do not apply to any Plant
located within the portion of any Lot designated as Common Maintenance Area (which area
shall be maintained by the Association as provided in this Declaration).
ARTICLE4
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
4.1 Membership. Every Owner of a Lot which is subject to assessment by the
Association shall be a Member of the Association. Membership is appurtenant to and may not
be separated from ownership of a Lot.
4.2 Voting Rights. The Association shall have two (2) classes of voting membership.
(a) Class A. Class A Members shall be all Owners, with the exception of
Declarant, and shall be entitled to one ( 1) vote for each Lot owned. When more than one ( 1)
person holds an interest in any Lot, all such persons shall be Members. The vote on behalf of
the Lot shall be exercised as the Owners among themselves determine, but in no event shall
more than one (1) vote be cast with respect to any Lot.
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Corporations Code ( or any successor statutes or laws) and Section 7 613 of the California
Corporations Code (or any successor statute or law) at which a quorum was present or
participated. For purposes of this Section, "quorum" means more than fifty percent (50%) of
the Owners. An emergency situation is any one of the following:
( 1) An extraordinary expense required by an order of a court;
(2) An extraordinary expense necessary to repair or maintain the Project or any
part of it for which the Association is responsible where a threat to personal safety in the Project
is discovered;
(3) An extraordinary expense necessary to repair or maintain the Project or any
part of it for which the Association is responsible that could not have been reasonably foreseen
by the Board in preparing and distributing the pro forma operating budget under California
Civil Code Section 1365 (or any successor statute or law). However, prior to the imposition or
collection of an assessment under this Subsection, the Board shall pass a resolution containing
written findings as to the necessity of the extraordinary expense involved and why the expense
was not or could not have been reasonably foreseen in the budgeting process, and the resolution
shall be distributed to the Members with the notice of assessment; or
(4) An extraordinary expense in making the first payment of the earthquake
insurance surcharge pursuant to Section 5003 of the California Insurance Code ( or any
successor statutes or laws).
The term "regular assessment for the Association's preceding fiscal year" as used in this Section
is deemed to be the regular assessment which would have existed in the absence of any subsidy
of assessments agreed to be paid by Declarant. Anything in this Section to the contrary
notwithstanding, the limitation on regular and special assessments shall comply with the laws of
the State of California at the time the regular or special assessment is levied by the Association.
5.4 Individual Assessment. The Association may impose a specific assessment
against an individual Member to reimburse the Association for costs incurred by the Association
in the repair of damage to common areas and facilities for which the Member or the Member's
guests or tenants were responsible and such assessment may become a lien against the
Member's Lot, enforceable by the sale of the Lot under Civil Code Sections 2924, 2924b and
2924c. Further, the Association may impose a specific assessment against an individual
Member to reimburse the Association for costs incurred in bringing a Member or his or her Lot
into compliance with the provisions of this Declaration, the Articles, the Bylaws and the rules •
and regulations of the Association, which assessment may be imposed upon the vote of the
Board after notice and an opportunity for a hearing which satisfy the requirements of Section
7341 ofthe California Corporations Code (or any successor statute or law); provided, however,
that except to the extent such specific assessment is to reimburse the Association for the cost of
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5.12 Homestead Waiver. Each Owner, to the extent permitted by law, does hereby
waive the benefit of any state or federal homestead or exemption laws now in effect, or in effect
from time to time hereafter, to the extent of any liens created pursuant to this Declaration, and
whether such liens are now in existence or are created at any time in the future.
5.13 Taxation of Association. In the event that any taxes are assessed against the
Association for the Common Maintenance Area improvements being maintained by the
Association, or the personal property of the Association, rather than against the individual Lots,
said taxes shall be added to the regular assessments and, if necessary, a special assessment may
be levied against the Lots in an aniount equal to said taxes, to be paid in installments, thirty (30)
days prior to the due date of each ta,"'{ installment.
5 .14 Exempt Property. All properties dedicated to and accepted by a local public
authority, and all properties owned by a charitable nonprofit organization exempt from taxation
by the laws of the State of California, shall be exempt from assessment by the Association.
However, no.land or improvements devoted to dwelling use shall be exempt from assessment by
the Association.
5.15 Uncompleted Facilities. The Board may (but shall have no obligation to) exclude
from Association regular assessments those portions of budgeted assessments which are for the
purpose of defraying expenses and reserves directly attributable to the existence of landscaping
areas and other improvements which are to be maintained by the Association, but are not
complete at the time of the assessment. Any such exemption from assessments shall be in effect
only until completion of the landscaped area or other improvements, which may be evidenced
by recordation of a notice of completion for the landscaped area or other improvement.
5.16 Civil Code Section 1366.1. The Association shall adhere to the requirement of
California Civil Code Section 1366.1 (or any successor statute or law) which states as follows:
An association shall not impose or collect an assessment,
penalty or fee that exceeds the amount necessary for the purpose
or purposes for which it is levied.
ARTICLE6
COMPLIANCE WITH GOVERNMENTAL APPROVALS
6.1 Enforcement By City. The City shall have the right, but not the obligation, to
enforce by any proceedings at law or in equity, all covenants, conditions, restrictions,
reservations and easements imposed or created by the provisions of this Declaration as more
particularly set forth in the Section hereof entitled "Enforcement".
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which satisfy the requirements of Civil Code Section 1365.7 (or any successor statute or law) to
limit the liability of volunteer officers and directors of the Association.
G) Owners Must Insure; Waiver of Subrogation. Each Owner shall obtain and
maintain, at its own expense, fire and casualty insurance coverage as may be required by the
Owner's Mortgagee or, if no Mortgage encumbers the Lot or residence, fire and casualty
insurance as may be determined by the Board; provided, however, in no event shall such
insurance coverage be for an amount less than the replacement cost of the structure, home,
improvements and personal property therein with respect to damage or destruction to
improvements on the Owner's Lot and/or personal property contained therein. Each Owner
hereby acknowledges that the obligation of all Owners to obtain and maintain insurance as
stated herein is for the benefit of all Owners. Each Owner hereby promises and agrees that said
Owner will not seek to hold any other Owner or the Association liable for any such damage or
destruction. Further, each Owner hereby waives any subrogation rights which any insurer of
said Owner may have against any other Owner or the Association. Owner shall, upon obtaining
the policies of insurance required hereunder, give notice to the insurance carrier or carrier, of
the waiver of subrogation rights contained in this Declaration.
(k) Owner Reimbursement. In the event any insurance policy deductible
amount relating to an Owner's property loss is charged to the Association, the Owner shall
reimburse the Association upon written demand for the amount charged to the Association.
~ (1) Proration of Premiums Paid by Declarant. Association insurance policy
premiums paid by Declarant shall be prorated between Declarant and the Association as of the
date of the first closing of a sale of a Lot in the Project to a retail purchaser, and the Association
shall refund to Declarant upon demand the amount of the proration attributable to the period
following the proration date.
7 .2 Condemnation. In the event any improvements in the Common Maintenance Area
maintained by the Association shall be taken for public purposes by condemnation as a result of
any action or proceeding in eminent domain, or shall be transferred in lieu of condemnation to
any authority entitled to exercise the power of eminent domain, then the award of consideration
for such taking or transfer shall be paid to and belong to the Association.
ARTICLES
ANNUAL INSPECTION
8.1 By Association. It shall be the duty of the Board to have the, Common
Maintenance Area inspected at least once each year.
8.2 Pur_pose of Inspection. The purpose of the inspection shall be to (i) detcnnine
whether the Common Maintenance Area is being maintained adequately and in accordance with
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the standards of maintenance set forth in this Declaration (including, without limitation, the
Sections hereof entitled "Common Maintenance Area" and "Association Maintenance"), (ii)
identify the condition of the Common Maintenance Area and any improvements thereon,
including the existence of any hazards or defects and the need for performing additional
maintenance, refurbishment, replacement, or repair, and (iii) recommend preventive actions
which may be taken to reduce potential maintenance costs to be incurred in the future.
8.3 Scope of Inspection. All of the Common Maintenance Area and any
improvements thereon shall be inspected.
8.4 Experts and Consultants. The Board may employ such experts and consultants as
are necessary to perform the inspection and make the report required by this Article of the
Declaration.
8.5 Report to Owners. The Board shall have a written report prepared of the results of
the inspection of the Common Maintenance Area as required by this Section. The report shall
be furnished to Owners within the time frame set forth for furnishing Owners with the budget
described in California Civil Code Section· 1365.5 (or any successor statute or law). The report
shall include at least the following:
(a) a description of the condition of the Common Maintenance Area,
including a list of items inspected and the status of maintenance and repair and the need for
r~placement of all such items;
(b) a description of all maintenance, repair and replacement planned for the
ensuing fiscal year which are included in the budget for the Association;
(c)
such deferral;
if any maintenance, repair or replacement is to be deferred, the reason for
( d) a summary of all reports of inspections performed by any expert or
consultant employed by the Board to perform such inspections; •
( e) a report of the status of compliance with the maintenance, repair and
replacement needs set forth in the inspection report for preceding years; and
(f) such other matters as the Board deems appropriate.
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ARTICLE 9
LHvllTATION ON LIABILITY OF ASSOCIATION'S
OFFICERS, DIRECTORS, AND COMMITTEE MEMBERS
9.1 Claims Regarding Breach of Duty. An officer, director, or member of any
committee of the Association shall not be personally liable to any Member or to any other
person for any error or omission in the discharge of his or her obligations as an officer, director,
or committee member, including, without limitation, for his or her failure to provide any
services required under thjs Declaration or under the Bylaws, provided that such officer,
director, or committee member acted in good faith, in a manner that such person believed to be
in the best interest of the Association and with such care, including reasonable inquiry, as an
ordinarily prudent person in a like position would use under similar circumstances. It is the
intent of this provision to provide officers, directors, and committee members with protection
from liability to the full extent permitted by California Corporations Code Section 7231 ( or any
successor statute or law or any comparable statute or law), and to the extent this provision is
inconsistent with said Section, the Corporations Code shall prevail. •
Without limiting the generality of the foregoing, this standard of care and limitation of
liability shall extend to matters including, but not limited to, the repair and maintenance of the
Common Maintenance Area.
9.2 Other Claims Involving Tortious Acts and Property Damage. An officer, director,
or member of any committee of the Association shall not be personally liable to any Member or
any other person who suffers any injury, including, but not limited to, bodily-injury, emotional
distress, wrongful death, or property damage or loss as a result of the tortious act or omission of
the officer, director, or committee member if all of the following criteria are met:
(a) the act or omission was performed within the scope of the officer's,
director's, or committee member's duties;
(b) the act or omission was performed in good faith;
( c) the act or omission was not willful, wanton, or grossly negligent; and
( d) the Association maintained and had in effect at the time the act or omission
occurred and at the time a claim is made one or more policies of insurance which shall include
coverage for general liability of the Association and individual liability of the officers, directors,
and committee members of the Association for negligent acts or omissions in that capacity;
provided, that both types of insurance are in the minimum amounts specified in California Civil
Code Section 1365.7 (or any successor statute or law). It is the intent of this provision to
provide volunteer officers, directors, and committee members with protection from. liability to
the full extent permitted by California Civil Code Section 1365.7 (or any successor statute or
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law or any comparable statute or law), and to the extent this provision is inconsistent with said
Section, the Civil Code shall prevail.
ARTICLE 10
RIGHTS OF LENDERS
10.1 Payments ofTaxes or Premiums by First Mortgagees. First Mortgagees may,
jointly or severally, pay truces or other charges which are in default and which may or have
become a charge against the Common Maintenance Area, unless the taxes or charges are
separately assessed against the Owners, in which case, the rights of the First Mortgagees shall
be governed by the provisions of their Mortgages. First Mortgagees may, jointly or severally,
also pay overdue premiums on casualty insurance policies, or secure a new casualty insurance
coverage on the lapse of a policy for the Common Maintenance Area. First Mortgagees making
such payments shall be owed immediate reimbursement from the Association. Entitlement to
reimbursement shall be reflected in an agreement in favor of any First Mortgagee who requests
the same to be executed by the Association.
10.2 Priority ofLien ofMort·gage. No breach ofthe covenants, conditions or
restrictions in this Declaration shall affect, impair, defeat or render invalid the lien or charge of
any First Mortgage made in good faith and for value encumbering any Lot, but all of the
covenants, conditions and restrictions shall be binding upon and effective against any Owner
whose title to a Lot is derived through foreclosure or trustee's sale, or otherwise.
10.3 Curing Defaults. A First Mortgagee who acquires title by judicial foreclosure,
deed in lieu of foreclosure or trustee's sale shall not be obligated to cure any breach of the
provisions of this Declaration which is noncurable or of a type which is not practical or feasible
to cure. The determination of the Board made in good faith as to whether a breach is
noncurable or not feasible to cure shall be final and binding on Mortgagees.
10.4 Approval of First Mortgagees. Excep~ as provided by statute in case of
condemnation or substantial loss to the Lots or common area, unless the holders of First
Mortgages encumbering sixty-seven percent (67%) or more of the Lots which are subject to a
Mortgage or Owners representing sixty-seven percent (67%) of the voting power of the
Association (excluding the vote ofDeclarant) have given their prior written approval, the
Association shall not:
(a) By act or omission, seek to abandon, partition, subdivide, encumber, sell
or transfer the common area. The granting of easements for public utilities or for other public
purposes shall not be deemed a transfer within the meaning of this Subsection.
(b) Change the method of determining the obligations, assessments, dues or
other charges which may be levied against an Owner.
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10.8 Documents to be Available. The Association shall make available to Owners and
Mortgagees, and holders, insurers or guarantors of any First Mortgage, current copies of this
Declaration, the Articles, the Bylaws, other rules and regulations concerning the Project and the
books, records and financial statements of the Association. "Available" means available for
inspection, upon request, during normal business hours or under reasonable circumstances. The
holders of First Mortgages encumbering fifty-one percent (51 %) or more·ofthe Lots subject to a
Mortgage shall be entitled to have an audited statement for the immediately preceding fiscal
year prepared at their expense if one is not otherwise available. Any financial statement so
requested shall be furnished within a reasonable time following the request.
10.9 FHA and VA Approval. So long as there is a Class B membership in the
Association, if a Mortgage is guaranteed by VA or insured by FHA, the following actions shall
require prior approval of VA or FHA: annexation of additional property to the Project, mergers
and consolidations, special assessments and amendment to this Declaration. If VA approval is
required to amend this Declaration, a draft of the amendment shall be submitted to and
approved by the VA prior to recordation of the amendment.
10.10 Conflicts. In the event of any conflict between any of the provisions ofthis
Article and any of the other provisions of this Declaration, the provisions of this Article shall
control.
ARTICLE 11
DEVELOPMENT RIGHTS
11.1 Limitation of Restrictions on Declarant. Declarant is undertaking the work of
constructing residences and related improvements upon the Project. The completion of that
work, and the sale, rental and other disposition of residences is essential to the establishment
and welfare of the Project as a residential community. Each Owner of a Lot which is part of the
Project acknowledges that Declarant has a substantial interest in assuring compliance with, and
enforcement of, the covenants, conditions, restrictions, limitations, easements and reservations
contained in this Declaration. The provisions of this Article hereof entitled "Development
Rights" shall supercede and control over all other provisions of this Declaration, the Articles
and the Bylaws as applied to Declarant.
Declarant has the following rights, and there are hereby granted, reserved and created for
Declarant nonexclusive easements to exercise such rights. Nothing in this Declaration, the
Articles or the Bylaws limits, and no Owner or the Association shall interfere with, Declarant's
exercise of these rights and easements.
(a) Subdivision. To subdivide and re-subdivide any portion of the Project.
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Mortgage. Generally, "material amendment" shall mean, for purposes of this Section, any
amendments to provisions of this Declaration governing any of the following subjects:
(I) The fundamental purpose for which the Project was created (such as a
change from residential use to a different use).
(2) Assessments, assessment liens or the priority of assessment liens.
(3) Reserves for maintenance, repair and replacement of the Common
Maintenance Area.
condemnation.
(4) Responsibilities for maintenance and repairs.
(5) Insurance or fidelity bonds.
(6) Restoration or repair of the Project after a hazard damage or partial
(7) Rights to use the Common Maint~nance Area.
(8) Expansion or contraction of the Project or the addition, annexation or
withdrawal of property to or from the Project.
(9) Voting rights.
(10) Convertibility of Lots into common area or of common area into Lots;
provided, however, (i) minor boundary adjustments shall not require amendment to this
Declaration or consent of any First Mortgagee and (ii) no boundary adjustment of a Lot shall
require the consent of a First Mortgagee unless such First Mortgagee's Mortgage encumbers
such Lot.
(11) Redefinition of boundaries of any Lot or the Common Maintenance
Area, other than a minor boundary adjustment.
(12) The interests in the Common Maintenance Area.
(13) Leasing ofLots.
( 14) Imposition of any right of first refusal or similar restriction on the
right of an Owner to sell, transfer, or otherwise convey his or her Lot.
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(15) Any action to terminate the legal status of the Association after
substantial destruction or condemnation.
(16) The requirement of retention of professional management of the
Association.
( 17) Any provision which is expressly for the benefit of First Mortgagees
or insurers or guarantors of First Mortgages.
An amendment to this Declaration shall not be considered material if it is for the purpose
of correcting technical errors or for clarification.
(d) Amendments Approved by City. Notwithstanding the above provisions,
any proposed amendment of this Declaration shall be provided to the City before such
amendment becomes effective. If the proposed amendment affects (i) the Common
Maintenance Area, (ii) the provisions of the Article hereof entitled "Compliance with
Governmental Approvals", or (iii) the rights of the City under this Declaration, then such
amendment shall require the prior approval of the City, which approval shall not be
unreasonably withheld or delayed. A copy of any amendment approved by the City and
recorded with the Office of the County Recorder of San Diego County shall be delivered to the
City for the official record within thirty (30) days after tlie Association receives the recorded
amendment from the County Recorder's Office.
12.2 Deemed Approval by First Mortgagee. A First Mortgagee who receives a written
request delivered by certified or registered mail, return receipt requested, to approve any
amendment who does not deliver or mail to the requesting party a negative response within
thirty (30) days, shall be deemed to have approved such request.
12.3 Percentage of Votes. Notwithstanding the above provisions, the percentage of
voting power necessary to amend a specific clause or provision in this Declaration shall not be
less than the percentage of affirmative votes necessary for action to be taken under that clause or
provision.
ARTICLE 13
GENERAL PROVISIONS
13 .1 Enforcement. The Association, Declarant, any Owner and the City shall have the
right to enforce by any proceedings at law or in equity, all covenants, conditions, restrictions,
reservations and easements imposed or created by the provisions of this Declaration. Each
Owner and the City shall have a right of action against the Association for any failure of the
Association to comply with the provisions of this Declaration or of the Articles or Bylaws.
Failure by the Association, Declarant, any Owner or the City to enforce any covenant,
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UNDERSTANDS AND COVENANTS TO INFORM ITS TENANTS THAT THE
ASSOCIATION, ITS BOARD AND COMMITTEES, DECLARANT, AND ANY
SUCCESSOR DECLARANT ARE NOT INSURERS OR GUARANTORS AND THAT
EACH PERSON USING THE PROJECT ASSID.1ES ALL RISKS FOR LOSS OR DAMAGE
TO PERSONS, TO LOTS AND TO THE CONTENTS OF LOTS RESULTING FROM ACTS
OF THIRD PARTIES.
13.8 Documents Provided To Prospective Purchasers. Each Owner, other than
Declarant, shall as soon as practicable before sale of a Lot, provide to the prospective purchaser
the disclosures, information and documents required by law, as the law from time to time may
be changed. The aforesaid disclosures, information and documents may include, but are not
limited to:
(a) A copy of the Articles, Bylaws and Declaration.
(b) A copy of the most recent financial documents of the Association
distributed ~n accordance with California Civil Code Section 1365 (or any successor statute or
law).
(c) A true statement in writing from an authorized representative of the
Association as to the amount of the Association's current annual and special assessments and
fees, as well as any assessments levied upon such Lot which are unpaid as of the date of the
statement. The statement shall also include true information on late charges, interest and costs
of collection which, as of the date of the statement, are or may be made a lien upon the Lot.
( d) A copy of the preliminary list of defects provided to each Member of the
Association pursuant to Section 1375 of the California Civil Code (or any successor statute or
law), if applicable, unless the Association and Declarant ( or builder) subsequently enter into a
settlement agreement or otherwise resolve the matter and the Association complies with Civil
Code Section 1375.1 (or any successor statute or law). The preliminary list of defects shall also
include a statement that a final determination as to whether the list of defects is accurate and
complete has not been made.
(e) A copy oftbe latest information provided for in Section 1375.1 of the
California Civil Code ( or any successor statute or law), if applicable.
(f) A statement setting forth any change in the Association's current regular
and special assessments and fees which have been approved by the Board but have not become
due and payable as of the date this statement is provided.
13 .9 Right to Cure· Alleged Defects. It is the intent that the Common Maintenance
Area, each Lot, each residence and all improvements constructed within the Project be built in
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Alleged Defect and the opportunities provided to Declarant to correct such Alleged Defect, (3)
the estimated cost to repair such Alleged Defect, ( 4) the name and professional background of
the attorney retained by the Association to pursue the claim against Declarant and a description
of the relationship between such attorney and any members of the Board (if any), (5) a
description of the fee arrangement between such attorney and the Association, (6) the estimated
attorneys' fees and expert fees and costs necessary to pursue the claim against Declarant and the
source of the funds which will be used to pay such fees and expenses, (7) the estimated time
necessary to conclude the action against Declarant, and (8) an affirmative statement from the
Board that the action is in the best interests of the Association and its Members. Failure to
provide the notice required herein shall not prejudice any action or proceeding filed by the
Association. In the event the Association recovers any funds from Declarant ( or any other
person or entity) to repair an Alleged Defect, any excess funds remaining after repair of such
Alleged Defect shall be paid into the Association's reserve fund unless at least seventy-five
percent (75%) of the voting power of the Association elects to allocate or distribute the
remaining funds otherwise.
(e) No Additional Obligations: Irrevocability and Waiver of Right. Nothing
set forth in this Section shall be construed to impose any obligation. on Declarant to inspect,
repair or replace any item or Alleged Defect for which Declarant is not otherwise obligated to
do under applicable law or any limited warranty (if any) provided by Declarant in connection
with the sale of the Lots and/or the improvements constructed thereon. The right ofDeclarant
to enter, inspect, repair, and/or replace that is reserved hereby shall be irrevocable and may not
be waived or otherwise terminated, except by a writing, in recordable form, executed and
recorded by Declarant in the Official Records of San Diego County.
Notwithstanding any other provision of this Declaration, this Section shall not be
amended without the prior written consent of Declarant.
13.10 Alternate Dispute Resolution.
(a) It is the desire and intention of the parties to agree upon a mechanism and
procedure under which any controversy, breach or dispute arising out of this Declaration or the
condition of the Project, including without limitation, the Lots and the Common Maintenance
Area (which controversy, breach or dispute shall include, without limitation, any dispute
between Declarant, on the one hand, and any Owner, the Association or the Board on the other
hand, arising over the design, specifications, surveying, planning, supervision, testing or
observation of construction or construction of any residence or improvement to, or survey of:
the Project, including without limitation, the Lots and the Common Maintenance Area) will be
resolved in a prompt and expeditious manner. Accordingly, any controversy, breach or dispute
arising out of this Declaration or the condition of the Project, or relating to the interpretation of
any term or provision of this Declaration, shall be heard by a referee pursuant to the provisions
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of the California Code of Civil Procedure, Sections 638 through 645.1, inclusive (or any
successor statutes or laws).
(b) Toe parties shall promptly and diligently cooperate with one another, and
the referee and shall perfonn such acts as may be necessary to obtain a prompt and expeditious
resolution of the dispute or controversy in accordance with the tenns of this Declaration;
( c) The parties agree that the referee shall have the power to (i) decide all
issues of fact and law and to report, in writing, his or her decision thereon, and (ii) to issue all
legal and equitable relief appropriate under the circumstances of the dispute or controversy
before him or her;
( d) The parties shall agree upon a single referee who shall then try all issues,
whether of fact or law, and report a finding and judgment thereon. If the parties are unable to
agree upon a referee within ten (10) days of a written request to do so by any party, then any
party may seek to have a referee appointed pursuant to California Code of Civil Procedure
Sections 638 and 640 (or any successor statutes or laws);
( e) Toe cost of such proceeding shall be borne equally by each party to the
dispute.
Notwithstanding any other provision of this Declaration, this Section shall not be
amended without the prior written·consent ofDeclarant.
13.11 Action by Association to Enforce Bond Re Common Maintenance Area. In
the event improvements to be installed by Declarant to the Common Maintenance Area have not
been completed prior to the issuance by the California Department of Real Estate of a final
subdivision public report covering the Project, and in the further event the Association is the
obligee under a bond to secure the obligation ofDeclarant to complete the improvements, then
if the improvements have not been completed and a notice of ¥ompletion filed within sixty (60)
days after the completion date specified in the planned construction statement appended to the
bond, the Board shall consider and vote upon the question of whether or not to bring action to
enforce the obligations under the bond. If the Association has given an extension in writing for
the completion of any improvement, then the Board shall consider and vote on the question if
the improvements have not been completed and a notice of completion filed within thirty (30)
days after the expiration of the extension period. In the event the Board determines not to take
action to enforce the obligations secured by the bond, or does not vote on the question as above
provided, then, in either event, upon petition signed by Members representing five percent (5%)
or more of the voting power of the Association (excluding the voting power ofDeclarant), the
Board shall call a special meeting of the Members of the Association to consider the question of
overriding the decision of the Board or of requiring the Board to take action on the question of
enforcing the obligations secured by the bond. The meeting of Members shall be held to less
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EXHIBIT A
COMMON MAINTENANCE AREA
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