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CT 00-13; Tabata; Tentative Map (CT)
V i ! 1 CBDai?DED AT THP nPOUF"! OT'i CHICAGO TiTi,? CO. RECORDING REQUESTED BY: WHEN RECORDED MAIL TO: Luce, Forward, Hamilton & Scripps 600 West Broadway, Suite 2600 SanDiego, CA 92101 Attn: Nancy T. Scull, Esq. 6380 II 1999-0:530774 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE AVIARA PREMIER COLLECTION Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 6381 TABLE OF CONTENTS IIRECITALS . 1 ARTICLE 1 DECLARATION 2 ARTICLE 2 DEFINITIONS 3 2.1 Annexable Property 3 2.2 Annexation 3 2.3 Apartment Area 3 2.4 Apartment Building or Apartment Project 3 2.5 Apartment Owner 3 2.6 Apartment Unit or Apartment 3 2.7 Architectural Committee 4 2.8 Architectural Consultant 4 2.9 Attached Condominium 4 2.10 Aviara Community 4 2.11 Aviara Master Association 4 2.12 Aviara Master Declaration 4 2.13 Aviara Premier Collection 4 2.14 Aviara Premier Collection Entries 4 2.15 Base Budget 5 2.16 Builder or Merchant Builder 5 2.17 Certificate of Occupancy 5 2.18 City 5 2.19 Coastal Zone Restrictions 5 2.20 Commercial Area 5 2.21 Common Expenses 5 2.22 Community Articles 7 2.23 Community Assessments 7 2.24 Commumty Association 7 2.25 Community Associalion Rules 7 2.26 Community Board 7 2.27 Community Bylaws 7 2.28 Community Common Area or Common Area 7 2.29 Community Directors 7 2.30 Community Governing Documents 7 2.31 Condominium and Condominium Owner 8 2.32 Cost Centers 8 2.33 Cost Center Budget 8 2.34 Cost Center Maintenance Areas 8 2.35 County 8 6382 TABLE OF CONTENTS 2.36 Covered Property 8 2.37 Declarant 8 2.38 Declaration 9 2.39 Design Guidelines or Design Review Guidelines 9 2.40 DRE 9 2.41 Dwelling or Dwelling Unit 9 2.42 Equivalent Dwelling Unit 9 2.43 Fencing Plan 10 2.44 Final Map 10 2.45 Fire Suppression Landscape Guidelines 10 2.46 Fire Suppression Zone 10 2.47 First Mortgage 10 2.48 First Mortgagee 10 2.49 FHA 10 2.50 Golf Course 10 2.51 Governmental Agency 10 2.52 Improvements 1 2.53 Individual Project 1 2.54 Individual Project Assessments 1 2.55 Individual Project Association 1 2.56 Individual Project Common Area 1 2.57 Individual Project Declaration 1 2.58 Institutional Mortgagee 1 2.59 Lot 12 2.60 Master Maintenance Plan 12 2.61 Master Plan 12 2.62 Member 12 2.63 Merchant Builder or Merchant Builders 13 2.64 Mortgage 13 2.65 Mortgagee 13 2.66 Notice and Heanng 13 2.67 Owner 13 2.68 Perimeter Fence 13 2.69 Phase; Apartment Phase 13 2.70 Planning Area 13 2.71 Public Report 14 2.72 Reclaimed Water 14 2.73 Recreational Vehicle Site; RV Site 14 2.74 Resort/Hotel Property 14 2.75 RV Site Easement Agreement 14 2.76 Settlement Agreement 14 6383 TABLE OF CONTENTS 2.77 Supplementary Declaration 14 2.78 Trail System 14 2.79 VA. 15 2.80 View Corridors 15 2.81 Voting Power 15 2.82 Water Conservation Improvements 15 ARTICLE 3 MEMBERSHIP IN THE COMMUNITY ASSOCIATION 15 3.1 Membership 15 3.1.1 Qualifications 15 3.1.2 Transfer of Membership 15 3.1.3 Assignment of Right of Use 16 3.1.4 Transfer of Membership Upon Sale 16 3.2 Classes of Voting Membership/Voting Entitlement 16 3.2.1 Class A Membership 16 (a) Votes for Owners of Lots 16 (b) Apartment Projects 16 (c) Commercial Property Owner 17 3.2.2 Class B Membership 17 3.2.3 Class C Membership 17 3.2.4 Election of Board Members by Declarant 18 3.2.5 Appointment of Apartment Representative on the Board 18 3.3 Approval of Apartment Owner 19 3.4 Continuing Approval of Declarant 19 3.5 Commencement of Voting Rights 20 3.6 Cost Center Approvals 20 3.7 Joint Owner Votes 20 ARTICLE 4 DUTIES AND POWERS OF THE COMMUNITY ASSOCIATION 21 4.1 Purpose and Organization 21 4.2 Scope of Powers and Duties of Community Association 21 4.3 General Powers of the Community Association 22 4.3.1 Performance of Duties 22 4.3.2 Easements and Rights of Way 22 4.3.3 Mergers 22 4.3.4 Dedication 22 4.3.5 Delegation of Powers 22 4.3.6 Management 22 4.3.7 Right of Entry 23 4.3.8 Acquire Real Property 23 4.3.9 Other Property 23 111 6384 TABLE OF CONTENTS 4.3.10 BorrowMoney 23 4.3.11 Compliance by Individual Projects with the Declaration 24 4.3.12 Enforcement of Restrictions and Rules 24 (a) Enforcement Actions 24 (b) Notice Requirements 24 4.3.13 Enter Into Maintenance or Subsidy Agreements 24 4.3.14 Public Rights of Use 25 4.3.15 Cost Centers 25 4.3.16 Contract for Goods and Services 25 4.3.17 Litigation 25 4.3.18 Capital Improvements 25 4.4 Duties of Community Association 25 4.4.1 Community Standards 26 4.4.2 Community Common Area 26 4.4.3 RV Site 26 4.4.4 Aviara Premier Collection Entries 26 4.4.5 Taxes 26 4.4.6 Community Assessments 26 4.4.7 Utility Services 26 4.4.8 Architectural Control 27 4.4.9 Community Association Rules 27 4.4.10 Common Area Maintenance 27 4.4.11 Insurance 27 4.4.12 Liens and Charges 27 4.4.13 Reserves 28 4.4.14 Use of Proceeds to Repair 28 4.5 Prohibited Activities 28 4.5.1 Property Manager 28 4.5.2 Political Activities or Contributions 28 4.5.3 Subassociation or Cost Center 29 4.5.4 Mortgagee Consents 29 4.5.5 Reserved Rights of Declarant, Merchant Builders and Apartment Owners 29 4.5.6 Limitations on Authority of Community Board 29 (a) Limit on Capital Improvements 29 (b) Limit on Sales of Community Common Area. . 29 (c) Limit on Third Person Contracts. T 30 4.5.7 Termination of Contract 30 (a) Contracts or Leases 30 (b) Professional Management Contracts 31 4.5.8 Compensation 31 IV 6385 TABLE OF CONTENTS ARTICLE 5 PROPERTY RIGHTS EASEMENTS 31 . 5.1 Property Rights 31 5.1.1 Ownership of Community Common Area 31 5.1.2 Restrict Use of Community Common Area 32 5.1.3 Suspend Right to Use Commumty Common Area 32 5.1.4 Establish Special Assessment Districts 32 5.1.5 Use by Public 32 5.1.6 Access 32 5.1.7 Grant Access and Utility Easements 32 5.1.8 Delegation of Use 33 5.1.9 Waiver of Use 33 5.2 Easements 33 5.2.1 Utilities 33 5.2.2 Easement for Declarant, Merchant Builders and Apartment Owners Over Community Common Area. . 33 5.2.3 Encroachments 33 5.2.4 Cable Television 34 5.2.5 Development Easements 34 5.2.6 Trail System 34 5.2.7 Repair and Maintenance 34 5.2.8 Fire Suppression Zones; Easements 34 5.2.9 Community Association Easements 35 5.2.10 Easements to Declarant for Adjoining Property 35 5.2.11 Easements for the Benefit of Golf Course 35 5.2.12 Easements for the Benefit of Resort/Hotel Property .... 35 5.2.13 Transfer of Easements 36 5.2.14 Amendment to Eliminate Easements 36 ARTICLE 6 COMMUNITY FUNDS AND ASSESSMENTS 36 6.1 Creation ofthe Lien and Personal Obligation of Assessments 36 6.2 Community Association Funds 36 6.3 Purpose of Community Assessments 37 6.4 Nature of Community Assessments 37 6.4.1 Regular Assessments 37 6.4.2 Special Assessments 37 6.4.3 Capital Improvement Assessments 38 6.4.4 Enforcement Assessments 38 6.4.5 Reconstruction Assessments 38 6.4.6 Formation of Cost Centers 39 6.5 Limitation on Assessments 39 6.5.1 Quorum 40 638(> TABLE OF CONTENTS 6.5.2 Emergency Situation 40 6.5.3 Notice to Owners 40 6.6 Increases in Assessments Based Upon Range of Assessments 40 6.7 Maintenance and Subsidy Agreements 41 6.8 Allocation of Community Assessments to Lots. 41 6.8.1 General Assessment Component 41 6.8.2 Cost Center Assessment Component 41 6.8.3 Other Community Assessments 41 6.9 Levy of Community Assessments 42 6.9.1 Commencement of Regular Assessments 42 6.9.2 Annual Levy of Regular Assessments 42 6.9.3 Levy of Other Community Assessments 42 6.9.4 Initial Capital Contribution 42 6.9.5 Certificate of Payment 43 6.10 No Offsets 43 6.11 Community Assessment Rolls 43 6.12 Transfer of Covered Property 43 6.13 Collection of Assessments; Liens 43 6.13.1 Right to Enforce .. 43 6.13.2 Creation of Lien 44 6.13.3 Notice of Default; Foreclosure 44 6.13.4 Payments Under Protest 45 6.13.5 Cure of Default 45 6.13.6 Non-Exclusive Remedy 45 6.13.7 Delegation of Authority 45 6.14 Additional Charges 45 6.14.1 Attorneys' Fees 46 6.14.2 Late Charges 46 6.14.3 Costs of Suit 46 6.14.4 Interest 46 6.14.5 Other 46 6.15 Subordination of the Lien to First Mortgages 46 ARTICLE 7 USE RESTRICTIONS 46 7.1 Individual Project Restrictions 46 7.2 Permitted Uses and Limitations 47 7.2.1 Residential Use 47 7.2.2 Rental of Dwelling 47 7.3 Signs 48 7.4 Antennae and Satellite Dishes 48 7.5 Fires 49 vi 638? TABLE OF CONTENTS 7.6 Grading and Drainage 49 7.7 No Temporary Structures 49 7.8 Nuisance 49 7.9 Oil and Mineral Operations 50 7.10 Pets 50 7.11 Streets 50 7.12 Private Sewer Easements 50 7.13 Storm Drain Easements 50 7.14 Power Tools 51 7.15 Roof Appurtenance 51 7.16 Trash Receptacle Area . 51 7.17 Unsightly Items 51 7.18 Vehicles 51 7.19 Protection of View Corridors 52 7.20 Basketball Hoops and Other Fixed Sports Apparatus 52 7.21 Garages 52 7.22 No Obstructions 52 7.23 Compliance With Laws, Etc 52 7.24 No Subdivision of Lots 52 7.25 Indemnification 52 7.26 Exemption 53 ARTICLE 8 INSTALLATION, REPAIR AND MAINTENANCE 53 8.1 Maintenance and Repair by Community Association 53 8.1.1 Community Common Area 53 8.1.2 Utilities 54 8.1.3 Open Space and Other Areas 54 8.1.4 Fencing 54 8.2 Maintenance and Repair of Individual Projects 54 8.3 Maintenance District 55 8.4 Coastal Resource Areas 55 8.5 Repair and Maintenance by Owners 55 8.5.1 Exterior of Dwelling 55 8.5.2 Landscaping 55 8.5.3 Repair Damage 55 8.5.4 Interior Walls or Fences 56 8.6 Standards for Maintenance and Repair 56 8.6.1 Exterior of Dwellings and Other Improvements 56 8.6.2 Landscaping 56 8.6.3 Right of Community Association to Maintain and Install. 56 Vll 6388 TABLE OF CONTENTS ARTICLE 9 ARTICLE 10 8.7 Private Street Maintenance to City Standards 56 8.8 Storm Drain Maintenance 57 8.9 Sewer Facilities Maintenance 57 ARCHITECTURAL CONTROL 57 9.1 Scope 57 9.2 Exemptions 57 9.3 Appointment of Architectural Committee 57 9.3.1 Resignations 58 9.3.2 Vacancies 58 9.4 Duties 58 9.5 Address 59 9.6 Fees 59 9.7 Effect of Architectural Committee 59 9.8 Meetings 59 9.9 Approval and Conformity of Plans. 59 9.9.1 Limitation on Improvements 59 9.9.2 Time Limitations 59 9.9.3 Conformity of Plans and Specifications 59 9.9.4 Other Limitations 60 9.9.5 Approval of Solar Energy Systems 60 9.10 Time Period for Review of Plans and Specifications 60 9.11 Appeal 60 9.12 Waiver 61 9.13 Estoppel Certificate 61 9.14 Liability 61 9.15 Govemmental Requirements 61 9.16 Architectural Guidelines 62 9.17 Interpretation 62 9.18 Amendments 62 DEVELOPMENT RIGHTS 62 10.1 Limitations of Restrictions 62 10.2 Rights of Access and Completion of Construction 63 10.2.1 Access 63 10.2.2 Construct Improvements 63 10.2.3 Grant Easements 63 10.2.4 Exemptions 64 10.3 Size and Appearance ofthe Covered Property 65 10.4 Marketing Rights 65 10.5 Title Rights 65 vm 6389 TABLE OF CONTENTS 10.6 Amendment 66 10.7 Declarant Representative 66 ARTICLE 11 INSURANCE 66 11.1 Insurance 66 11.1.1 Fire and Extended Coverage Insurance 66 (a) Description ofPolicy Coverages 67 (i) Community Common Area 67 (ii) Landscaping 67 (b) Covered Cause of Loss 67 (c) Primary 67 (d) Endorsements 67 (e) Waiver of Subrogation 67 11.1.2 Liability Insurance 67 11.1.3 Fidelity Insurance 67 11.1.4 Worker's Compensation Insurance 68 11.1.5 Other Insurance 68 11.1.6 Named Insured 68 11.2 Copies of Policies 68 11.2.1 Insurance to Satisfy Civil Code 68 11.2.2 Reimbursement of Community Association 68 11.3 Review of Insurance 69 11.4 Individual Insurance 69 DESTRUCTION OF IMPROVEMENTS AND EMINENT DOMAIN .... 69 12.1 Condemnation 69 12.2 Total Taking 70 12.3 Minor Taking 70 12.4 Major Taking 70 12.5 Restoration of Improvements 70 12.5.1 Insurance Proceeds Adequate 70 12.5.2 Insurance Proceeds Inadequate 71 12.5.3 Individual Project Common Area and Lots 72 ARTICLED APARTMENT AREA AND COMMERCIAL AREA OWNERSHIP 72 13.1 Payment of Assessments 72 13.2 Delegation of Use 73 13.3 Conversion to Condominium; Annexation of Condominiums 73 13.4 Change of Commercial Area Use 73 ARTICLE 12 IX 6390 TABLE OF CONTENTS ARTICLE 14 ARTICLE 15 ARTICLE 16 MORTGAGEE RIGHTS 73 14.1 Special Mortgagee Provisions 73 14.2 Conflict 74 14.3 Liability for Unpaid Assessments 74 14.4 Payment of Taxes and Insurance 74 14.5 Reserve Fund 74 14.6 Notice to Mortgage Holders 74 14.7 Inspection of Books and Records 75 14.8 Voting Rights of Mortgagees 75 14.9 Action Requiring Mortgagee Votes 75 14.10 Votes for Termination of Individual Project 76 14.11 Condemnation or Destruction 76 14.12 Mortgagee Protection 77 14.13 Distribution of Insurance and Condemnation Proceeds 77 14.14 Non-Curable Breach 77 14.15 Loan to Facilitate 77 14.16 Appearance at Meetings 77 14.17 Right to Fumish Information 77 14.18 Inapplicability of Right of First Refusal to Mortgagee 77 AMENDMENT 78 15.1 Amendments 78 15.2 Conflict with Article 15 or Other Provisions ofthis Declaration ... 80 15.3 Business and Professions Code Section 11018 80 15.4 Reliance on Amendments 80 15.5 Amendment Affecting Obligation to Maintain Common Area 80 15.6 Amendments to Cost Center Provisions 80 ANNEXATION OF REAL PROPERTY 80 16.1 Annexation 80 16.2 Annexation Without Approval 81 16.3 Annexation Pursuant to Approval 81 16.4 Covenants Running With the Land 81 16.5 Supplementary Declarations 81 16.6 Community Common Area 82 16.7 Rights and Obligations of Owners 82 16.8 Mergers or Consolidations 82 16.9 De-Annexation 83 6391 TABLE OF CONTENTS ARTICLE 17 TERM AND ENFORCEMENT 83 • 17.1 Term 83 17.2 Enforcement and Nonwaiver 83 17.2.1 Rights of Enforcement of Community Governing Documents 83 17.2.2 Procedure for Enforcement 83 17.3 Notice of Actions Against Declarant 84 17.4 DISPUTE NOTIFICATION AND RESOLUTION PROCEDURE (DECLARANT DISPUTES); WAIVERS 84 17.4.1 Notice 85 17.4.2 Right to Inspect and Right to Corrective Action 85 17.4.3 Civil Code Sections 1368.4 and 1375 85 17.4.4 Mediation 85 (a) Position Memoranda; Pre-Mediafion Conference 85 (b) Conduct of Mediation 86 (c) Exclusion Agreement 86 (d) Persons Permitted at Sessions 86 (e) Expenses 87 17.4.5 Judicial Reference 87 (a) Participation by Declarant Parties 87 (b) Place 88 (c) Referee 88 (d) Commencement and Timing of Proceeding .... 88 (e) Pre-hearing Conferences 88 (f) Discovery 88 (g) Limitation on Remedies; Prohibition on Award of Punitive Damages 89 (h) Motions 89 (i) Rules of Law 89 G) Record 89 (k) Statement of Decision 89 (1) Post-hearing Motions 89 (m) Appeals 89 (n) Expenses 90 17.4.6 AGREEMENT TO DISPUTE RESOLUTION; WAIVERS OF JURY TRIAL AND AWARD OF PUNITIVE DAMAGES 90 17.4.7 Application of Award 90 17.4.8 Exceptions to Mediation and Reference; Statutes of Limitation 90 XI 6392 TABLE OF CONTENTS 17.5 General Enforcement by the City 90 17.5.1 Failure of Association to Maintain Common Area Lots and Easements 90 17.5.2 Special Assessments Levied by the City 91 17.6 Indemnification 91 ARTICLE 18 GENERAL PROVISIONS 92 18.1 Equitable Servitudes 92 18.2 Severability 92 18.3 Construction 92 18.4 Singular Includes Plural. 92 18.5 Nuisance 92 18.6 No Waiver 92 18.7 Cumulative Remedies 93 18.8 Attorneys'Fees 93 18.9 Exhibits and Schedules 93 18.10 Notices 93 18.11 Conflicts Between Community Goveming Documents 93 18.12 Conflicts Between Community Goveming Documents and Individual Project Association Documents 94 18.13 Effect of Declaration 94 18.14 Transfers Subject to Declaration 94 18.15 FHA/VA Approval 94 18.16 Personal Liability 95 18.17 Violation of Law 95 18.18 Golf Course Liabilities 96 18.19 OVERRIDING EXCLUSION 96 18.20 Governing Law 97 xu 6393 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE AVIARA PREMIER COLLECTION THIS DECLARATION OF COVENANTS, CONDITIONS AND RE^RICTIONS FOR THE AVIARA PREMIER COLLECTION ("Declaration") is made this Hi_ day of M/U^ 1999, by BREHM-AVIARA III DEVELOPMENT ASSOCIATES, L.P., a Delaware iifnited partnership. RECITALS A. Declarant is the Owner of the real property situated in the City ofCarlsbad, County of San Diego, State ofCalifornia, which is more particularly described in Exhibit "A-l" attached hereto and incorporated herein ("Declarant's Property"). Aviara Land Associates Limited Partnership, a Delaware limited partnership ("Aviara Land Associates") is the owner of the real property described on Exhibit "A-2" attached hereto and incorporated here and Jefferson at Aviara, L.P., a Delaware limited partnership ("Jefferson"), is the Owner of the real property described in Exhibit "A-3" attached hereto and incorporated herein. (Herein the real property described in Exhibits "A-l", "A-2" and "A-3" is referred to collectively as the "Covered Property"). The Owners ofthe real property described in Exhibits "A-2" and "A-3" have, by their signatures set forth below, consented to the recordation of this Declaration. B. Declarant desires to establish covenants, conditions and restrictions upon the Covered Property and each and every portion thereof, which will constitute a general scheme for the management ofthe Covered Property and for the use, occupancy and enjoyment thereof, all for the purpose of enhancing, maintaining and protecting the value, desirability and attractiveness of the Covered Property and enhancing the quality of life therein. C. The Covered Property is being developed as a master planned development (as defined in Section 2792.32 of Title 10 of the California Code ofRegulations) which is also a "common interest development" pursuant to the Davis-Stirling Common Interest Development Act. The Covered Property is included within the master planned community situated in the City of Carlsbad and commonly known as the Aviara Premier Collection (the "Aviara Premier Collection"). The Covered Property subject to his Declaration will be developed as a master planned community to be governed by the Aviara Premier Collection Association, a Califomia nonprofit mutual benefit corporation ("Community Association"). If developed as planned, the Aviara Premier Collection will include a total of approximately 570 Dwellings (as defined below), together with certain areas which will be conveyed (by fee title, easement or lease) to the Community Association. The Covered Property shall be developed in conformance with, among other land use approvals, that certain Local Facilities Management Plan for Zone 19 (the "LFMP") which was approved by the City of Carlsbad (the "City") pursuant to the Carlsbad Growth Management Program, Title 21, Aviara Collection Community - CC&Rs 21276-13 - 1298005,13 6394 Chapter 21.90 of the Carlsbad Municipal Code, and that certain Master Plan for Aviara (the "Master Plan") which was approved by the City Planning Commission on November 4, 1987 pursuant to Planning Commission Resolution 2594. Copies of the LFMP and the Master Plan are on file with the City Planning Department and when reference is made in this Declaration to the LFMP or the Master Plan or the context hereof requires, the LFMP and the Master Plan shall be deemed incorporated herein. Notwithstanding the foregoing, each Owner who takes title subject to this Declaration acknowledges that there is no assurance that the proposed development of the Aviara Premier Collection will be completed. D. Declarant may add all or any of the real property described in Exhibit "B" attached hereto and incorporated herein ("Annexable Property") to the Covered Property already subject to this Declaration by annexing such Annexable Property and such Annexable Property will thereupon be subject to this Declaration, become a part of and be included within the definition of the Covered Property, and be developed as a part of the Aviara Premier Collection. E. The Community Association has been incorporated under the laws of the State of California for the purpose of owning and maintaining the Community Common Area and for exercising the powers and functions set forth herein. F. All of the Covered Property will hereafter be held and conveyed subject to certain protective covenants, conditions and restrictions hereinafter set forth. Before any of the Lots (as defined below) are sold, Declarant desires to establish covenants, conditions and restrictions upon the Covered Property and each and every portion thereof, which will constitute a general scheme for the management of the Covered Property and for the use, occupancy and enjoyment thereof, all for the purpose of enhancing, maintaining and protecting the value, desirability and attractiveness of the Covered Property and enhancing the quality of life therein. ARTICLE 1 DECLARATION NOW, THEREFORE, Declarant hereby covenants, agrees and declares that all of the Covered Property is, and shall be, held, conveyed, encumbered, hypothecated, leased, rented, used, occupied and improved subject to the following limitations, covenants, conditions, restrictions, easements, liens and charges which are hereby declared and agreed to be in furtherance ofa general plan for the subdivision, improvement, protection, maintenance and sale of all of the Covered Property and all of which are declared and agreed to be for the purpose of enhancing, maintaining and protecting the value, desirability and attractiveness of the Covered Property and every part thereof and enhancing th*^; quality of life therein. All of the limitations, covenants, conditions, restrictions, easements, liens and charges are equitable servitudes and shall run with the land and shall be binding upon a-;d inure to the benefit of all parties having or acquiring any right, tide or interest, in the Covered Property or any part thereof, and shall be binding on and inure to the benefit Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 6395 of each successor-in-interest of such parties. Declarant hereby declares that all of the Covered Property described in Exhibit "A-l", "A-2" and "A-3" shall be subject to this Declaration and shall constitute the initial increment of land subject to this Declaration. Declarant declares that pursuant to the Article hereof entitled "Annexation of Real Property" all or any portion ofthe real property described on Exhibit "B" may be annexed and become subject to this Declaration and, upon annexation, each subsequent Phase (as hereinafter defined) of the Annexable Property shall be subject to the limitations, restrictions, easements, covenants, conditions, liens and charges of this Declaration. ARTICLE 2 DEFINITIONS Unless the context clearly indicates otherwise, the following terms used in this Declaration are defined as set forth below. 2.1 Annexable Propertv. The term "Annexable Property" means any or all of the real property described on Exhibit "B" that may be made subject to this Declaration by Annexation pursuant to the provisions set forth in the Article of this Declaration entitled "Armexation of Real Property". 2.2 Annexation. The term "Annexation" means the process by which the additional real property described in Exhibit "B" attached hereto may be made subject to this Declaration as set forth in the Article hereof enthled "Annexation of Real Property." 2.3 Apartment Area. The term "Apartment Area" means the real property situated within Planning Area 18 and the owner of such Apartment Area shall, so long as it is used for apartment purposes have the voting rights established under Section 3.2.1 ofthe Declaration. In the event the Apartment Area is divided into one or more separate legal lots with separate Apartment Owners, the Apartment Owners shall designate one of the Apartment Owners to cast their votes as provided under Section 3.2.1 of this Declaration. 2.4 Apartment Building or Apartment Project. The term "Apartment Building" or "Apartment Project" refers to buildings containing two or more Apartment Units constmcted within the Apartment Area and operated as an apartment project. 2.5 Apartment Owner. The term "Apartment Owner" means the owner of fee thle to any portion of the Apartment Area. 2.6 Apartment Unit or Apartment. The term "Apartment Unit" or "Apartment" refers to a residential apartment in an Apartment Building, but excludes any model apartment units ufilized primarily for marketing purposes. Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 6396 2.7 Architectural Committee. The term "Architectural Committee" means the committee provided for in the Article hereof entitled "Architectural Control." 2.8 Architectural Consultant. The term "Architectural Consultant" means the consultant hired by the Architectural Committee as set forth in Section 9.4 below. 2.9 Attached Condominium. The term "Attached Condominium" refers to any Condominiums (as defined below) located in a building structure which contains more than one Condominium and for which an Individual Project Declaration has been recorded and an Individual Project Association has been formed to maintain all or a portion of the buildings within which the Condominiums are located. 2.10 Aviara Community. The term "Aviara Community" means the real property covered by the Master Plan plus any portion of the Annexable Property outside of the Master Plan area. 2.11 Aviara Master Association. The term "Aviara Master Association" shall refer to the master association formed pursuant to the Aviara Master Declaration (as defined below). 2.12 Aviara Master Declaration. The term "Aviara Master Declaration" refers to that certain Third Amended and Restated Master Declaration of Covenants, Conditions of Restrictions for Aviara recorded on September 16,1991, as Instrument No. 1991 -0475307 and any amendments, supplements or modifications thereto. 2.13 Aviara Premier Collection. The term "Aviara Premier Collecfion" means the Covered Property and, upon annexation, the Annexable Property and all Improvements situated thereon. 2.14 Aviara Premier Collection Entries. The term "Aviara Premier Collection Entries" means those areas (either within or outside the boundaries ofthe Covered Property) over which the Community Association has an easement for the purpose of maintaining thereon the walls, signage, landscaping, accent trees, monuments, logos, lighfing or other improvements designed, constructed and intended to distinguish, represent and enhance the entry or approach to portions ofthe Aviara Premier Collection. The Avara Premier Collection Entries included within the Covered Property initially subject to this Declaration are depicted in Exhibit "D" attached hereto and incorporated herein. The Aviara Premier Collectior. Entries included within any property hereafter annexed to this Declaration shall be described in a Supplementary Declarafion. The use and maintenance of those Aviara Premier Collection Entries located on the real property subject to the Aviara Master Declaration shall be govemeo by Section 5.1 of the Setfiement Agreement. Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 639? 2.15 Base Budget. The term "Base Budget" means the elements of the budget for the Community Association that itemizes the cost components to be shared by all Members of the Community Association, as provided in this Declaration and the Community Bylaws, 2.16 Builder or Merchant Builder. The term "Builder" or "Merchant Builder" may be used interchangeably and shall mean any Person who purchases from Declarant all or any portion of a Planning Area for the purpose of developing either Dwellings for sale to members ofthe public under authority of a Public Report, or Apartments, or as it relates to the Commercial Property, commercial improvements. 2.17 Certificate of Occupancy. The term "Certificate of Occupancy" refers to the temporary certificate of occupancy or its equivalent, issued by the City. 2.18 Citv. The term "City" means the City of Carlsbad, Califomia. 2.19 Coastal Zone Restrictions. The term "Coastal Zone Restrictions" shall mean the conditions, easements, restrictions and covenants contained in the documents described on Exhibit "C" attached hereto imposed upon those portions of the Aviara Premier Collection (sometimes referred to as "Coastal Resources Areas" or "Coastal Commission Open Space Deed Restricted Areas") by the California Coastal Commission for the preservation of coastal resources. The Coastal Resources Areas are set forth on Exhibit "C-l" attached hereto. Coastal Resources Areas included within any Annexable Property shall be designated in a Supplementary Declaration, (as defined below). 2.20 Commercial Area. The term "Commercial Area" refers to Planning Area 32B which has been designated for commercial development as permitted under the Master Plan and any other area designated as Commercial Area in a Supplementary Declaration. 2.21 Common Expenses. The term "Common Expenses" shall mean the actual and estimated costs and expenses incurred or to be incurred by the Community Association, the Community Board or the Architectural Committee, including, but not limited to, the following: 2.21.1 costs of maintenance, management, operation, repair and replacement ofthe Community Common Area (including any Cost Centers) and all other areas within the Covered Property which are maintained by the Community Association; 2.21.2 due but unpaid Community Assessments (as hereinafter defmed); 2.21.3 costs of maintenance by the Community Association of areas within the public right-of-way of public streets in the vicinity of the Covered Property pursuant to agreements with the City; Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 6398 2.21.4. the Community Association's share of maintenance costs as provided under Section 5.1 of the Settlement Agreement, RV Site Easement Agreement and any other agreements entered into by the Community Association requiring reimbursements or payments by the Community Association. 2.21.5 costs of management and administration of the Community Association, including, but not limited to, compensation paid by the Community Association to managers, accountants, attorneys, architects and employees; 2.21.6 the costs of any utilities and other services benefitting the Owners and their Lots to the extent such services are paid for by the Community Association; 2.21.7 biological mitigation or other costs, if any, required for the maintenance of any riparian or other areas required to be maintained by the Community Association by any Governmental Agency including, without limitation, the Coastal Zone; 2.21.8 costs of fire, casualty, liability, worker's compensation and other insurance covering the Community Common Area and activities of the Community Associafion; 2.21.9 the costs of any other insurance obtained by the Commimity Association pursuant to the provisions of this Declaration; 2.21.10 reasonable reserves as deemed appropriate by the Community Board or otherwise required pursuant to the Community Governing Documents; 2.21.11 costs of bonding of the members of the Community Board, the Architectural Committee, any professional managing agent or any other person handling the funds of the Community Association; 2.21.12 taxes paid by the Commumty Association; 2.21.13 amounts paid by the Community Association for the discharge of any lien or encumbrance levied against the Community Common Area or portions thereof; 2.21.14 costs incurred by the Architectural Committee or other committees of the Community Association and fees payable to any Architectural Consultant hired by the Architectural Committee; and 2.21.15 the reasonable costs of any other item or items designated by, or in accordance with other expenses incurred by the Community Association for any reason whatsoever in connection with the operation and/or maintenance of the Community Common Area, or in Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 6399 furtherance of the purposes or the discharge of any obligations imposed on the Community Association by the Community Goveming Documents. 2.22 Communitv Articles. The term "Community Articles" means the Articles of Incorporation of the Community Associafion, as the same may from time to fime be duly amended. 2.23 Community Assessments. The term "Community Assessments" means collectively or individually, as required by the context, all or any of the assessments levied by the Community Association pursuant to the Article hereof entitled "Commumty Funds and Assessments". 2.24 Community Association. The term "Community Associafion" means the Aviara Premier Collection Association, a Califomia nonprofit mutual benefit corporation, incorporated under the laws of the State of California, or any successor entity charged with the dufies, obligations and powers of said Community Association. 2.25 Community Association Rules. The term "Community Association Rules" means the rules and regulafions adopted by the Community Board for the govemance of the Covered Property. The initial Community Association Rules are attached hereto as Exhibit "E." 2.26 Community Board. The term "Community Board" means the Board of Directors of the Community Association. 2.27 Community Bylaws. The term "Community Bylaws" means the Bylaws of the Community Association, as the same may from time to time be amended. 2.28 Communitv Common Area or Common Area. The term "Community Common Area" or "Common Area" may be used interchangeably and shall mean all real property and the Improvements situated thereon owned by, leased to or under an easement in favor of the Community Association including, without limitafion, private utilities, private parks, open space, the Trail System, irrigation systems, any community cable, slopes owned or maintained by the Community Association and Aviara Premier Collecfion Entries. The Community Common Area may be designated in a Supplementary Declaration. 2.29 Community Directors. The term "Community Directors" means the members of the Community Board elected pursuant to the provisions of the Community Bylaws. 2.30 Community Governing Documents. The term "Community Goveming Documents" means the Community Articles, Community Bylaws, Community Association Rules, the Design Guidelines, this Declaration and the Supplementary Declarafions, and any amendments to any of the foregoing. Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 6400 2.31 Condominium and Condominium Owner. The terms "Condominium" and "Condominium Owner" means, respectively, the estate and the Owner thereof ofany condominium within the Covered Property established pursuant to California Civil Code Section 1351(f) or any similar statute hereinafter enacted. 2.32 Cost Centers. The term "Cost Centers" means the portions of the Covered Property that directly receive a special benefit from portions ofthe Commimity Common Area established as Cost Center Maintenance Areas and for which Community Assessments will be imposed on the Owners within such Cost Center pursuant to the provisions of this Declarafion. The Cost Centers established within the Covered Property in accordance with the provisions ofthis Declaration shall be described in a Supplementary Declaration. 2.33 Cost Center Budget. The term "Cost Center Budget" means the elements of the budget for the Community Association that itemizes the cost components to be assessed against portions ofthe Covered Property within a Cost Center as provided in this Declaration. 2.34 Cost Center Maintenance Areas. The term "Cost Center Maintenance Areas" means and refer to those portions of the Community Common Area for which a Cost Center has been established pursuant to a Cost Center Budget. 2.35 Countv. The term "County" means the County of San Diego, Califomia. 2.36 Covered Propertv. The term "Covered Property" means all the real property described on Exhibit "A-l", "A-2" and "A-3" attached hereto and all Improvements thereon and, subsequent to the Annexation thereof pursuant to this Declaration, any real property that shall become subject to this Declarafion. In the event of the deannexation of any Covered Property previously subject to this Declaration, the term "Covered Property" shall be deemed not to include any such deannexed property. 2.37 Declarant. The term "Declarant" means Brehm-Aviara III Development Associates, L.P., a Delaware limited partnership ("Brehm-Aviara") and shall include those successors and assigns of Brehm-Aviara who acquire or hold title to any part or all of the Covered Property for purposes of development and are expressly named as successor Declarant in a document executed by Brehm-Aviara, or a successor Declarant, and recorded with the County Recorder for San Diego County assigning the rights and duties of Declarant to such successor Declarant, with such successor Declarant accepfing and assuming the assignment of such rights and duties. A successor Declarant shall also be deemed to include the beneficiary under any deed of tmst securing an obligation from a then-existing Declarant encumbering all or any portion of the Covered Property, which beneficiary has acquired any such property by foreclosure, power of sale or deed in lieu ofsuch foreclosure or sale. .Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 6401 2.38 Declaration. The term "Declaration" means this Declarafion of Covenants, Conditions and Restrictions for the Aviara Premier Collection and any amendments thereto. 2.39 Design Guidelines or Design Review Guidelines. The term "Design Guidelines" or "Design Review Guidelines" shall mean and refer to the Aviara Development Overview and Residential Design Guidelines which have been prepared and adopted by Declarant and by the Architectural Committee to implement, maintain and preserve, through adherence to the design elements and characteristics set forth in said Design Guidelines, conformity with the Master Plan for the benefit of the Project and to assure the integrity of the design standards and goals set forth therein. 2.40 DRE. The term "DRE" means the California Department of Real Estate or any successor agency that is responsible for administering the sale of subdivided lands pursuant to California Business and Professions Code Sections 11000, et. so^. or any similar statute hereinafter enacted. 2.41 Dwelling or Dwelling Unit. The term "Dwelling" or "Dwelling Unit" means the residential dwelling unit together with garages and other stmctures on the same Lot, and in the case of a Condominium, all elements of a "unit" conveyed to an Owner as "unit" as defined on the condominium plan or subdivision map recorded for said Condominium pursuant to the Califomia Civil Code and, unless the context otherwise requires, any Apartment. 2.42 Equivalent Dwelling Unit. The term "Equivalent Dwelling Unit" means the seven (7) equivalent dwelling units ("EDU's") established by this Declarafion for the Commercial Area initially subject to this Declaration for the purpose of assessing and collecfing Community Assessments from the Commercial Area and for the purpose of attribufing voting rights to the Commercial Area. If any Commercial Areas are subsequenfiy aimexed to this Declaration, the Equivalent Dwelling Units for such area(s) shall be established by Declarant subject to the prior written approval ofthe Apartment Owner and designated in a Supplementary Declarafion. In the event titie to all or any portion of a Commercial Area is acquired by (i) a church or religious institution and used as a church or place of worship or (ii) a non-profit organizafion holding an exemption under Intemal Revenue Code Section 501(c) and used for purposes consistent with such exempt status, any such porfion of the Commercial Area (so long as used or reserved for the purposes permitted under clause (i) or (ii) above) shall be deemed to have no Equivalent Dwelling Units allocable thereto and, therefore, shall not be obligated to pay the Regular Assessment, Special Assessments, Reconstruction Assessments or Capital Improvement Assessments, as described in Section 6.4 below (but shall be obligated to pay all other Community Assessments). If the use of the Commercial Area is changed to use for Dwellings then the Equivalent Dwelling Units as to such Commercial Area shall terminate and the Owner shall have the obligafion to pay Community Assessments on the same basis as other Dwellings as specified in Section 13.4 of this Declaration. Aviara Collection Community - CC&Rs 21276-13 - 1298005,13 6402 2.43 Fencing Plan. The term "Fencing Plan" shall refer to any fencing plan attached to any Supplementary Declaration which designates the maintenance obligations for the Perimeter Fence (as defined below) pursuant to the provisions of Article 8 of the Declaration. 2.44 Final Map. The term "Final Map" means a final subdivision parcel map recorded over any portion of the Covered Property pursuant to the California Subdivision Map Act. 2.45 Fire Suppression Landscape Guidelines. The term "Fire Suppression Landscape Guidelines" means the text and graphics prepared for and approved by the City and guidelines for the installafion and maintenance of "Fire Suppression Zones'" between the undisturbed native vegetation adjacent to graded/manufactured slopes and Dwellings constmcted or to be constmcted on Lots as shown on Exhibit "F" attached to this Declaration. The full text and graphics of the Fire Suppression Landscape Guidelines and the requirements for maintenance, bmsh clearance, setback and irrigation contained therein are on file with the Community Association. 2.46 Fire Suppression Zone. The term "Fire Suppression Zone" or "Zone"' means that portion of certain Lots and, to the extent applicable, any Community Common Area between the undisturbed native vegetation and the structure shown by example in cross section on Exhibit "F" attached to this Declaration, with respect to which easements are reserved ('"Fire Suppression Zone Easements") to the Community Association for access and maintenance in compliance with the Fire Suppression Landscape Guidelines. 2.47 First Mortgage. The term "First Mortgage" means a first mortgage or deed of tmst which encumbers any one (1) or more Lots and has priority over any other mortgage or deed of tmst encumbering such Lot, and shall include any first mortgage or deed of tmst securing an obligation of Declarant, Merchant Builder, or an Owner. 2.48 First Mortgagee. The term "First Mortgagee" means the Mortgagee of a First Mortgage. 2.49 FHA. The term "FHA" means the Federal Housing Administration. 2.50 Golf Course. The term "Golf Course" means the real property bordering portions of the Aviara Premier Collection that is maintained and operated as a golf course, golf club, driving range and related facilifies as described in Exhibit "G" attached hereto. 2.51 Governmental Agencv. The term "Governmental Agency" means the City, the County and any other federal, state, local or municipal govemmental entity or quasi-governmental entity or agency including, without limitation, any special assessment district, maintenance district or community facilifies district having jurisdiction over the Covered Property. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 10 6403 2.52 Improvements. The term ""Improvement" or "Improvements" means all structures and appurtenances thereto of every type and kind in the Covered Property, including but not limited to: Dwellings, Apartment Buildings and other buildings, outbuildings, guardhouses, walkways, pedestrian, bicycle trails, utility installation, swimming pools and other recreational facilifies, garages, carports, roads, sidewalks, walkways, driveways, parking areas, fences, screening walls, block walls, retaining walls, awnings, patio and balcony covers, stairs, decks, landscaping, hedges, slopes, windbreaks, the exterior surfaces of any visible structure, paintings, planted trees and shmbs, irrigation systems, antennae, poles, signs, solar or wind powered energy systems or equipment, and water softener, heater or air conditioning and heating fixtures or equipment; the demolition or destruction by voluntary action of any structure or appurtenance thereto of every type and kind; the grading, excavation, filling or similar disturbance to the surface of the land including, without limitation, change of grade, change of ground level, change of drainage pattem or change of stream bed; landscaping, planting, clearing or removing of trees, shrubs, grass or plants; and any change or alteration of any previously approved Improvement including any change of exterior appearance color or texture. 2.53 Individual Project. The term "Individual Project" means all Lots, improved or unimproved, and Individual Project Common Area, if any, of a separate subdivision or development within the Covered Property as established by a Subdivision Map Condominium Plan, or other such land division for which a separate homeowners association, other than the Community Association, is formed to govern and control the operation and maintenance of the Individual Project and which is encumbered by an Individual Project Declaration. 2.54 Individual Project Assessments. The term "Individual Project Assessments "means assessments determined pursuant to any Individual Project Declaration that are levied exclusively on Lots contained in a particular Individual Project. 2.55 Individual Project Association. The term "Individual Project Association" means the homeowners association of an Individual Project that is created pursuant to an Individual Project Declaration and the articles of incorporation and bylaws therefor. 2.56 Individual Project Common Area. The term "Individual Project Common Area" means the area within the boundaries of an Individual Project owned by the Individual Project Association or collectively by all or some of the Owners of Lots within the Individual Project in common and restricted to use primarily by such Owners, their lessees and invitees. 2.57 Individual Project Declaration. The term "Individual Project Declaration" means the covenants, condifions and restrictions recorded with respect to each Individual Project, including the declarations providing for annexation of increments, if any, to a particular Individual Project. 2.58 Institutional Mortgagee. The term "Institufional Mortgagee" means a First Mortgagee which is (i) a bank, savings and loan association, insurance or mortgage company or Aviara Collection Community - CC&Rs 21276-13 - 1298005,13 H 6404 other entity or institution chartered under federal and/or state law; (ii) an insurer or govemmental guarantor of a First Mortgage; (iii) any federal or state agency; (iv) the State of Califomia as the vendor under an installment land sales contract covering a Lot; or (v) any other institution specified by the Community Board in a recorded instrument, who is the First Mortgagee of a First Mortgage encumbering a Lot. 2.59 Lot. The term "Lot" means any or all of the following: (a) any improved or unimproved lot or parcel shown on any recorded final subdivision map or any recorded parcel map to the extent such lots or parcels are part of the Covered Property; (b) any Condominium in the Covered Property; and (c) subject to the provisions of the Article hereof entitled "Apartment Area and Commercial Area Ownership", the portion of the Apartment Area in the Covered Property owned by the Apartment Owner, even though such portion may contain more than one (1) Apartment Building and (d) the Commercial Area. Notwithstanding anything to the contrary contained herein, the term "'Lot" shall not include any Community Common Area or Individual Project Common Area. 2.60 Master Maintenance Plan. The term "Master Maintenance Plan" means and includes (i) the plan approved by the City Planning Director pursuant to Chapter I, Paragraph H, Section 16, page 23 of the Master Plan and City Planning Resolution 2595, Condition 11, (ii) the Planning Area Maps, (iii) the terms and conditions of the maintenance agreement for drainage across the Golf Course approved by the City Attorney pursuant to City PC Resolution 2595, Condition 65, (iv) the Coastal Zone Restrictions, (v) the Fire Suppression Landscape Guidelines, (vi) the Final Map conditions and easements for view preservation, together with the two and one- half foot height limitation for the preservation of clear space and sight distance at intersections as shown on the Final Maps, and (vii) the rules, regulafions and orders adopted fi'om time to time by the City, the County and other Govemmental Agencies regulating the use of reclaimed water and the Water Conservation Improvements. All of the above elements collecfively, and as updated, supplemented and/or amended from fime to time, contain and provide the criteria for the care and maintenance of real property and improvements which, to the extent they are included within the Covered Property, are to be maintained by the Community Associafion. 2.61 Master Plan. The term"Master Plan" means that certain Master Plan for Aviara (the "Master Plan") which was approved by the City Planning Commission on November 4, 1987 and any updates, supplements or amendment to the Master Plan. The Master Plan covers the real property subject to the Aviara Master Declaration and the Aviara Premier Collection, but excluding portions of the Annexable Property. A copy of the Master Plan is on file with the City Planning Department. 2.62 Member. The term "Member" means every person or enfity who qualifies for membership pursuant to the Article of this Declaration enfitled "Membership in the Community Association," including Declarant, as long as Declarant qualifies for membership pursuant to said Article. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 12 6405 2.63 Merchant Builder or Merchant Builders. The term "Merchant Builders" shall mean and refer to any person or entity which has or will acquire from Declarant a portion of the Covered Property for the purpose of improving such property with Dwellings in accordance with a Development Declaration recorded against such property by Declarant in connection with the conveyance to the Merchant Builder. 2.64 Mortgage. The term "Mortgage" means a deed of trust as well as a mortgage encumbering a Lot or other parcels of real property in the Covered Property. 2.65 Mortgagee. The term ""Mortgagee" means the mortgagee or beneficiary under any Mortgage. 2.66 Notice and Hearing. The term "Notice and Hearing" means the procedure that gives an Owner notice of an alleged violation of the Community Goveming Documents and the opportunity for a hearing before the Community Board. 2.67 Owner. The term "Owner" means one or more persons or entities who are alone or collectively the record owner of a fee simple title to a Lot, including Declarant, Jefferson, Aviara Land Associates and Merchant Builders unless the context provides otherwise, A contract purchaser under a recorded installment land sales contract shall be included as an Owner but those merely having an interest as security for the performance of an obligafion shall not be Owners, The fee owner of the Apartment Area shall be deemed to be an Owner subject to the provisions of the Article hereof entitled "Apartment Area and Commercial Area Ownership." 2.68 Perimeter Fence. The term "Perimeter Fence" shall refer to the fencing bordering portions ofthe Covered Property as shown and designated on Exhibit "D" attached hereto. 2.69 Phase; Apartment Phase. The term "Phase" means a group of Lots which are or have been made subject to this Declaration and are designated by Declarant as a separate Phase by a document (which may be a Supplementary Declaration or another nofice of armexation) executed by Declarant and recorded with the County Recorder of the County of San Diego. Should Declarant not have made a contrary designafion, each group of Lots which have been made subject to this Declaration and are covered by a separate Public Report (as defined below) issued by the DRE or otherwise recognized by the Califomia Real Estate Commissioner as a separate Phase shall constitute a separate Phase. The term "Apartment Phase" means any Apartment Building or Buildings as to which a Certificate of Occupancy has been issued by the City. 2.70 Planning Area. The term "Planning Area" means those separate planning areas that have been established under the Master Plan. Development within each Planning Area shall be in conformance with the standards applicable to the Covered Property for such Planning Area as set forth in the Master Plan. Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 6406 2.71 Public Report. The term "Public Report" means the Final Subdivision Public Report issued by the DRE for any Phase in the Covered Property, including any Eunendments to such Public Report. 2.72 Reclaimed Water. The term "Reclaimed Water" or "reclaimed water" shall mean non-potable water delivered through Water Conservation Improvements described in the Section of this Declaration entified "Water Conservation Improvements." 2.73 Recreational Vehicle Site; RV Site. The term "Recreational Vehicle Site", or "RV Site" shall mean the area within the Covered Property described on Exhibit "H" which is owned by the Community Association or over which the Community Association has an easement to operate and maintain as an RV storage area for the benefit of the Owners and their tenants residing in the Aviara Community. The use of the RV Site by the Members of the Community Associafion and the Aviara Master Association shall be governed by the RV Site Easement Agreement entered into by Declarant, the Aviara Master Association and the Community Association. 2.74 Resort/Hotel Propertv. The term "Resort/Hotel Property" means the real property bordering portions of the Aviara Premier Collection described in Exhibit "I" attached hereto. 2.75 RV Site Easement Agreement. The term ""RV Site Easement Agreement" shall mean that certain Grant of Easement and Joint Use Agreement made by Declarant, as grantor, and the Aviara Master Association and Communhy Association, as grantees, pertaining to the use of the RV Site. 2.76 Settlement Agreement. The term "Settlement Agreement" means that certain Settlement Agreement Release dated Febmary 8, 1999 by and among Aviara Master Associafion, Declarant, Aviara Land Associates, Jefferson and others which, in Secfion 5.1, contains certain provisions relating to maintenance of monument signs and also contains other terms and provisions applicable to the Association. 2.77 Supplementary Declaration. The term "Supplementary Declaration" means those certain declarations of covenants, conditions and restrictions, or similar instmments, (a) annexing any portion of the Annexable Property and extending the plan of this Declarafion to such Annexable Property as provided in the Article hereof entitled "Annexation of Real Property" and/or (b) describing certain areas within the Covered Property that are to be maintained by the Community Association or such other complementary additions and modifications as are provided in Sections 15.5 and 16.1 of this Declaration, which may be recorded, subject to the provisions of Section 16.5 ofthis Declaration. 2.78 Trail System. The term "Trail System" means that portion of the pedestrian circulation system described in Chapter IV ofthe Master Plan to the extent applicable to the Covered Property, all as more particularly shown on Exhibit "D" attached hereto. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 14 6407 2.79 VA. The term "VA" means the United States Department of Veterans Affairs. 2.80 View Corridors. The term "View Corridors" means those areas of the Covered Property described in the Master Plan and in the City"s July 1, 1988 "Scenic Corridor Guidelines" (as amended from time to time) for the selection and placement of trees and other landscaping and improvements for the protection of views and wetland area within or adjacent to the Covered Property, as more particularly described in the Master Plan. 2.81 Voting Power. The term "'Voting Power" means the total number of votes allocated to Lots as set forth in the Section enfitled "Classes of Voting Membership"of the Article entitled "Membership in the Community Associafion." 2.82 Water Conservation Improvements. The term "Water Conservation Improvements"' means all pipe, conduit, pumps, meters, valves and other improvements now or hereafter installed within any Planning Area as required by the City or the County as a part of a reclaimed water system (separate from potable water service for human consumption) for irrigation and water conservation purposes. ARTICLE 3 MEMBERSHIP IN THE COMMUNITY ASSOCIATION 3.1 Membership. 3.1.1 Qualifications. Members of the Community Association shall be (i) Declarant (irrespective of whether Declarant is the owner of a Lot), for so long as Declarant is entitled to either cast a Class C vote pursuant to the Section of this Article entitled "Class C Membership" or cast votes on behalf of any Merchant Builders, and (ii) each Owner (including Declarant and any Merchant Builder) of one (1) or more Lots in the Covered Property, Membership in the Community Association shall be subject to the Community Governing Documents. Ownership of a Lot shall be the sole qualification for an Owner's membership in the Community Association; provided, however, that Declarant shall be a Class C Member irrespective of such ownership. Membership in the Community Association shall be in addition to membership in any Individual Project Association responsible for operating any Individual Project in which a Member's Lot is located. 3.1.2 Transfer of Membership. All memberships inthe Community Association held by Owners other than Declarant shall be appurtenant to the Lot owned by each Owner and shall not be transferred, pledged or alienated, in any way, except upon the transfer of tifie to the Owner's Lot. Declarant's Class C membership may not be transferred except to a successor to Declarant's rights to all or a portion of the Aviara Premier Collection. Any attempt to make a prohibited Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 ' 15 6408 membership transfer shall be void and will not be reflected on the books of the Community Association. 3.1.3 Assignment of Right of Use. A Member shall have the right to assign such Owner's rights of use and enjoyment in the Community Associafion to a lessee or tenant of his or her Lot; provided, however, that such Member shall not also be entitled to the use and enjoyment ofthe recreational facilities, if any, located on the Community Common Area during the term of such assignment. The assigning member shall remain liable for all charges and assessments attributable to his or her Lot. A Member who has sold his or her Lot to a contract purchaser under an agreement to purchase shall be enfitled to assign to such contract purchaser his or her membership rights in the Communhy Association. Such assignment shall be in writing and shall be delivered to the Community Board before such contract purchaser may vote. However, the contract seller shall remain liable for all charges and assessments attributable to his or her Lot unfil fee title to the Lot is transferred. 3.1.4 Transfer of Membership Upon Sale. If the Owner of any Lot fails or refuses to transfer the membership registered in such Owner's name to the purchaser of such Lot upon transfer of fee title thereto, the Community Board shall have the right to record the transfer upon the books of the Community Association. The Community Associafion may levy a transfer fee against new Owners in the amount of the actual and reasonable costs incurred by the Community Association to change its records in order to reimburse the Community Association for the costs of transferring the memberships to the new Owners on the records of the Community Association. 3.2 Classes of Voting Membership/Voting Entitlement. The Community Associafion shall have three (3) classes of voting membership which are described below. 3.2.1 Class A Membership. Class A Members shall originally be all Owners of Lots with the exception of Declarant and the Merchant Builders, for so long as there exists a Class B membership. Each Owner will be entitled to cast with respect to Lots subject to assessment and owned by Class A Members the votes specified below. (a) Votes for Owners of Lots. One(l) vote for each Lot owned by such Owner, except that the voting rights for the Apartment Project and Commercial Property shall be as specified below. (b) Apartment Proiects. The Apartment Owner of all Apartment Projects situated within Planning Area 18 shall collectively have one hundred (100) votes. The Owner of any Apartment Project situated within a Plarming Area designated in a Supplementary Declaration shall have the number of votes established by Declarant, subject to the prior written approval of the Apartment Owner and specified in such Supplementary Declaration. Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 16 6409 (c) Commercial Propertv Qwner. The Commercial Property Owner shall have the number of votes equal to the Equivalent Dwelling Units established for the Owner's Commercial Area by Declarant and approved in writing by the Apartment Owner. Based upon the seven (7) EDU'sallocated to the Owner of the Commercial Area situated within Planning Area 32B, such Owner shall have seven (7) votes. 3.2.2 Class B Membership. The Class B Member shall be the Declarant who shall be entitled to three (3) votes for each Lot owned by Declarant and any Merchant Builder who has assigned its votes to Declarant. Declarant shall cast all votes on behalf of Declarant and any Merchant Builders who have assigned their rights to Declarant. The Class B membership shall cease and be converted to Class A membership on the happening of any of the following events, whichever occurs earliest: (a) When four hundred twenty-eight (428) Dwellings, representing seventy-five percent (75%) of the Dwellings proposed to be developed for the Aviara Premier Collection have been conveyed to Class A Members; (b) On the fifth (5''') anniversary following the most recent conveyance to a Class A Member of the first Lot in any Phase under the authority ofa Public Report; or (c) On the twenty-fifth (25"") anniversary of the first conveyance of a Lot to a Class A member in the Covered Property under authority of a Public Report. 3.2.3 Class C Membership. The Class C Member shall be Declarant (whether or not Declarant is an Owner). The Class C membership shall not be considered a part of the voting power of the Community Associafion and Declarant shall not be entitled to exercise any Class C votes except for the purpose of electing a majority of the members of the Community Board pursuant to the provisions set forth below. Subject to the rights of the Apartment Qwner set forth in Section 3.2.5 hereof, the Class C Member shall be entitled to solely elect a majority of the members of the Community Board until the date which is the earlier to occur of (a) When four hundred twenty-eight (428) Dwellings, represenfing seventy-five percent (75%) of the Dwellings proposed to be developed for the Aviara Premier Collection have been conveyed to Class A Members; (b) On the fifth (5'^) anniversary following the most recent conveyance to a Class A Member of the first Lot in any Phase under the authority of a Public Report; or (c) On the twenty-fifth (25"') anniversary of the first conveyance of a Lot to a Class A Member in the Covered Property under authority of a Public Report. Aviara Collection Community - CC&Rs 21276-13 - 1298005,13 1 ' 6410 3.2.4 Election of Board Members by Declarant. In addition to the foregoing and subject to the rights of the Apartment Owner set forth in Section 3.2.5 hereof, twenty percent (20%) of the Members of the Community Board may be elected by Declarant until the first to occur of the following:' (a) When five hundred thirteen (513) Dwellings, representing ninety percent (90%) of the Dwellings proposed to be developed for the Aviara Premier Collection have been conveyed to Class A Members; (b) On the fifth (5"') anniversary following the most recent conveyance to a Class A Member of the first Lot in any Phase under the authority ofa Public Report; or (c) On the twenty-fifth (25'^) anniversary of the first conveyance of a Lot to a Class A Member in the Covered Property under the authority of a Public Report. 3.2.5 Appointment of Apartment Representative on the Board. (a) Notwithstanding the voting rights allocated to the Apartment Ovmer, and until the expiration of Declarant's Class C votes, the Apartment Owner shall be enfified to appoint: (i) one (1) member of the Community Board so long as the Community Board consists of five (5) members; and (ii) two (2) members of the Community Board so long as the Community Board consists of seven (7) members. (b) Upon expiration of Declarant's Class C votes, the Apartment Owner shall be entitled to appoint: (i) two (2) members of the Community Board so long as the Community Board consists of five (5) members; and (ii) three (3) members ofthe Community Board so long as the Community Board consists of seven (7) members. (c) Except as provided in this Section 3.2.5, the Apartment Owner shall not be otherwise entitled to vote in the election of the remaining members of the Community Board. If there is more than one (1) Apartment Owner, and the Apartment Owners carmot agree as to how their voting rights shall be cast, they shall forfeit the right to appoint a director. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 18 6411 3.3 Approval of Apartment Owner. Notwithstanding anything to the contrary contained in this Declaration, the prior written approval of the Apartment Owner shall be required before the Declarant or the Community Association may take any permitted action with respect to the following: • 3.3.1 The formation of any Cost Center which includes all or any part of the Apartment Area, or the dissolution of any Cost Center; 3.3.2 Any amendment to the Community Association Rules which imposes any new rules on the Apartment Owner or any portion of the Apartment Area which is different or in addition to the Community Associafion Rules shown on Exhibit "E"; 3.3.3 The recordation of any Supplementary Declaration pursuant to Article 16 which encumbers or binds the Apartment Area; 3.3.4 The recordation of a Notice of Deletion of Territory pursuant to Section 16.9; 3.3.5 Any alterations, modifications or amendments to this Declarafion which (by Supplementary Declaration or otherwise) alters, modifies, diminishes or eliminates any provisions of this Declaration which allows, provides or confers a specific right, specific privilege, specific benefit to or specific allocation on the Apartment Owner or Apartment Area; including, without limitation, the provisions of Article 9; and 3.3.6 Any acfions under Sections 4.3.3,10,5 and 16.9 of this Declarafion. 3.4 Continuing Approval of Declarant. Notwithstanding the foregoing, and without limiting Declarant's unilateral rights provided elsewhere in this Declarafion or the Community Bylaws, even after the termination of Class B membership, and until such fime as Declarant is no longer the fee owner of or the holder of a mortgage or deed of trust against any portion of Aviara Premier Collection, the approval of Declarant shall be required before the Community Association may take any permitted action with respect to the following; 3.4.1 Reducfion in the level of, or change in allocation of responsibility for (a) maintenance of and repairs to all or part of any Community Common Area subject to this Declaration, (b) any other maintenance obligations of the Community Association set forth in this Declaration, and (c) any responsibilities for maintaining circulation within the Covered Property set forth in this Declaration; 3.4.2 Conveyance by the Community Association of all or any part of the Community Common Area and/or conveyance of easements. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 19 641^ 3.4.3 Annexation to the Community Association of any of the real property described in Exhibit."B"; 3.4.4 Alteration in the method of fixing and collecting Community Assessments or any increase in Community Assessments beyond the amounts permitted under Section 6.5 of this Declaration; 3.4.5 Modification, enforcement and review procedures of the Architectural Committee or any change in the architectural and landscaping design; 3.4.6 The obligation to provide Declarant with inspection reports; 3.4.7 Reduction or modification of any easement or other rights reserved to Declarant pursuant to the provisions of Article 10 of this Declaration; 3.4.8 Alteration in the method of enforcing the provisions of this Declaration; and 3.4.9 Amendments to this Declaration or the Community Bylaws which would diminish or otherwise affect Declarant's or any Merchant Builder's right of approval regarding the actions enumerated above. 3.5 Commencement of Voting Rights. An Owner's right to vote, including Declarant's and Apartment Owner's right to vote (except for Declarant's voting rights under the Section above entitled '"Class C Membership"' and the Section above entitled ""Election of Board Members by Declarant" and the Apartment Owner's voting rights under Section 3.2.1(b) and the Apartment Owner's rights under Section 3.2.5) shall not vest until Community Assessments have been levied upon such Owner's Lot as provided in this Declaration. All voting rights shall be subject to the restrictions and limitations provided for herein and in the Community Bylaws. 3.6 Cost Center Approvals. Notwithstanding any other provisions of the Community Governing Documents, any action expressly only for the benefit of a Cost Center or the Owners of Dwellings therein which requires a vote ofthe Members shall require the approval ofthe prescribed percentage ofthe class or classes of Members or the approval of Members other than Declarant (if applicable) of only those Owners within such Cost Center and any amendment to this Declaration to amend or delete the provisions of this Declaration relating to Cost Centers shall, in addition to the approvals required under Sections 15.1 and 3.3 ofthis Declaration, require the approval of the prescribed percentage of the class or classes of Members or the approval of Members other than Declarant (if applicable) of only those Owners within such Cost Center. 3.7 Joint Owner Votes. The voting rights for each Lot may not be cast on a fractional basis. If the joint Owners of a Lot are unable to agree among themselves as to how their voting rights shall be cast, they shall forfeit the vote on the matter in question. If any Owner exercises the Aviara Collection Community - CC&Rs 21276-13 -1298005,13 20 6413 vofing rights of a particular Lot, it will be conclusively presumed for all purposes that such Qwner was acting with the authority and consent of all other Owners of the same Lot. If more than one (1) person or entity exercises the voting rights for a particular Lot, their votes shall not be counted and shall be deemed void. ARTICLE 4 DUTIES AND POWERS OF THE COMMUNITY ASSOCIATION 4.1 Purpose and Organization. The Community Association is a non-profit mutual benefit corporation formed under the laws of the State of California to operate and maintain the Covered Property for the benefit of the Owners. The Community Association is charged with the duties and is given the powers set forth in this Article and its affairs shall be govemed by the Community Governing Documents. In the event that the Community Association as a corporate entity is dissolved, a non-profit unincorporated association shall forthwith and without further action or notice be formed to succeed to all of the rights and duties of said Community Association hereunder. The affairs of such unincorporated association shall be govemed by the Community Bylaws and this Declaration as if they were created for the purpose of goveming the affairs of an unincorporated association. Except for those acts that are expressly reserved to the vote of the membership of Owners in this Declaration, any duty, obligation or authority vested or required to be performed and any power or privilege that may be exercised by the Community Association pursuant to this Declaration shall be performed or exercised only by the Community Board or its authorized delegates, agents and servants. The Community Board shall conduct its affairs as provided for in the Community Bylaws. 4.2 Scope of Powers and Duties of Community Association. The Community Association shall have all ofthe powers of a nonprofit mutual benefit corporation organized under the laws of the State of California operating for the benefit of the Owners subject only to the limitations expressly set forth in the Community Goveming Documents. The Community Association shall have the power to do any and all acts that are authorized, required or permitted under the Community Goveming Documents. The Community Association is formed exclusively for those purposes and activifies that are specifically and directly related to (i) equipping, maintaining, operating and utilizing the Community Common Area, including the social, recreational and other improvements thereon, (ii) collecting assessments to finance the maintenance and utilization of the Community Common Area and (iii) performing the obligations of the Community Association under the Community Governing Documents, and (iv) administering and enforcing this Declaration and the other Community Goveming Documents (collectively, the "Permitted Functions"). Notwithstanding the foregoing, Permitted Functions do not include those activities prohibited pursuant to the Section hereof entitled "Prohibited Acfivities.'" The funds and resources of the Community Association shall be utilized solely and exclusively for the direct cost of Permitted Functions. Nothing in this Section shall be deemed to preclude the use of the Aviara Coliection Community - CC&Rs 21276-13 -1298005.13 21 6414 Community Common Area by Declarant, the Merchant Builders or the Apartment Owner for promotional special events and other purposes as authorized by this Declaration. 4.3 General Powers of the Communitv Association. In addifion to the duties and powers enumerated elsewhere in the Community Goveming Documents and without limiting the generality thereof, the Community Association shall have the powers and authority set forth below, which, unless expressly provided otherwise, may be undertaken by the Community Board, or such committees, entities, persons or companies expressly designated by the Community Board to exercise such powers or authority. 4.3.1 Performance of Duties. The Community Association shall have the power to undertake all of the express duties required under the Section below entitled "Duties of Community Association" to be done by the Community Association. 4.3.2 Easements and Rights of Way. The Community Association shall have the power to dedicate or grant and convey easements, licenses for use, and rights of way, to any third party or public authority where necessary or appropriate in, on, over and through the Community Common Area for the benefit of the Owners, the Community Association or the Covered Property. 4.3.3 Mergers. The Community Association shall have the power, to the extent permitted by law, and provided the prior consent of Declarant has been obtained, to participate in mergers and consolidations with other non-profit corporations organized for the same purposes as the Community Association, including without limitation to consolidate or merge with the Aviara Master Associafion. 4.3.4 Dedication. The Community Association shall have the power to dedicate or grant easements over any of its real property to any public authority, public assessment district or private or public utility company, or other service companies for public use or in connection with providing services to the Covered Property. 4.3.5 Delegation of Powers. The Community Associafion shall have the power to delegate its powers under the Community Goveming Documents to committees, officers, or employees as expressly authorized by the Community Goveming Documents. 4.3.6 Management. Subject to the provisions of the Section entitled "Professional Management Contracts" of this Article, the Community Associafion shall have the power to employ a manager or other persons and contract with independent contractors or managing agents who have professional experience in the management of planned unit developments or master associations to perform any services required for the maintenance, protection, operation and preservation of the Covered Property or negotiate and enter into contracts which grant concessions over the Community Common Area. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 22 6415 4.3.7 . Right of Entry. The Community Association shall have the power and right (but not the obligation) in accordance with the provisions of this Declaration to enter upon any ofthe Covered Property without liability to any Qwner, upon at least twenty-four (24) hours prior notice, for the purpose of enforcing any of the provisions ofthe Community Goveming Documents, or for the purpose of maintaining any Community Common Area, provided, however, that such entry shall occur at a reasonable hour. In the event that there is an emergency, the agents and representatives of the Community Board may enter such Covered Property immediately and without notice at such time as may be reasonably necessary or appropriate to address such emergency for the sole purpose of taking such action as is necessary under the circumstances. Any damage caused by an entry by the Community Association pursuant to the provisions of this shall be repaired by the Community Association. 4.3.8 Acquire Real Property. The Community Association shall have the power to acquire and hold real property by lease or purchase for offices or other Corrununity Common Area that may be necessary or convenient for the management of the Community Common Area, the administration of the affairs of the Community Association or for the benefit of the Members and Owners; provided, however, the Community Association shall not rent, lease or fumish offices or other facilities for an "on-site" manager, as discussed further in Section 4.5,1 below. 4.3.9 Other Property. The Community Association shall have the power to acquire and hold, as tmstee for the benefit of its Members, tangible and intangible personal property and to dispose of the same by sale or otherwise. No such personal property of an aggregate value greater than five percent (5%) of the budgeted gross expenses for a fiscal year of the Community Association shall be acquired by or disposed of by the Community Association during that fiscal year without written approval ofthe votes of the Owners representing at least a majority of the Voting Power. 4.3.10 Borrow Money. The Community Association shall have the right in accordance with the Community Governing Documents, to borrow money for the purpose of improving, replacing, restoring or expanding the Community Common Area or adding new Community Common Area and in aid thereof, to mortgage said property, provided that the prior affirmative vote or written approval of sixty-seven percent (67%) of the Voting Power has been obtained to mortgage said property except that the vote or written approval ofthe Members shall not be required for any municipal or similar financing offered by a Govemmental Agency or for any borrowing during a fiscal year of the Community Association that does not exceed five percent (5%) of the budgeted gross expenses of the Community Association for that fiscal year, and provided further that the rights of such Mortgagees shall be subordinated to the rights ofthe Members. In the event of a default upon any such Mortgage of the Community Common Area, the lender's rights thereunder shall be iimited to a right, after taking possession of such properties, to charge admission and other fees as a condition to continued enjoyment of the Members and, if necessary, to open the enjoyment ofthe Community Common Area to a wider public until the Mortgage debt is satisfied. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 23 6416 whereupon the possession of such properties shall be retumed to the Community Association and all rights ofthe Members hereunder shall be fully restored. 4;3.11 Compliance bv Individual Projects with the Declaration. As provided in the Article of this Declaration enfitled "Use Restrictions,'" the Community Associafion may take such steps as the Community Board deems appropriate to assure that the operation ofany Individual Projects within the Covered Property substantially complies with the standards established for the Covered Property. Notwithstanding the foregoing, in no event may the Community Association undertake the maintenance, repair or replacement of any Dwellings or Individual Project Common Area. 4.3.12 Enforcement of Restrictions and Rules. (a) Enforcement Actions. The Community Association in its own name and on its own behalf, or on behalf of any Owner who consents, shall have the right, but not the obligation, to commence and maintain actions for damages or to restrain and enjoin any actual or threatened breach ofany provision of the Community Goveming Documents or any resolufions of the Community Board, and to enforce by mandatory injunction, or otherwise, all of these provisions. In addition, the Community Association can temporarily suspend the membership rights and privileges and/or can assess monetary penalties against any Owner or other person entitled to exercise such rights or privileges for any violation of the Community Governing Documents. (b) Notice Requirements. Before a decision to impose such a suspension and/or monetary penalties is reached by the Community Board, at least fifteen (15) days written notice of suspension or imposition of monetary penalties and the reasons therefor must be given to the Owner ofsuch suspension or imposition of a penalty or any such longer period as may be required under California Corporations Code Section 7341, and any successor statutes or laws. Additionally, before the Community Board decides to impose a suspension of privileges and/or impose a monetary penalty, the aggrieved Owner shall be provided with an opportunity to be heard by the Community Board. 4.3.13 Enter Into Maintenance or Subsidy Agreements. The Community Association shall have the power to enter into maintenance agreements or subsidy agreements with Declarant (or with the written consent of Declarant, any Merchant Builder) for the repair and maintenance of the Community Common Area, and for the undertaking by Declarant (or any Merchant Builder with the written consent of Declarant) of any other maintenance responsibiUties of the Community Association pursuant to the provisions of this Declaration, which maintenance or subsidy agreements may, by their terms, require repayment by the Community Association of assessments advanced to the Community Association by the Declarant. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 24 6417 4.3.14. Public Rights of Use. The Community Associafion shall have the power to grant to the public rights of use to the Community Common Area, as may be required by the City, the County or any Governmental Agency. 4.3.15 Cost Centers. Subject to the restrictions set forth in Sections 3.3.1, 4.5.3 and 6.4.6 of this Declaration, the Community Association shall have the power to form and administer the Cost Centers and to form and administer new Cost Centers in accordance with the terms and provisions of this Declaration and the Community Bylaws. In connection with the administration of Cost Centers, the Community Association shall have the power to establish advisory committees for any Cost Center, comprised of Owners whose Lots are within the applicable Cost Center, Such advisory may propose special rules and regulafions with respect to Cost Centers or Cost Center Maintenance Areas which may be adopted by the Community Board. The Community Board shall also adopt special election procedures for the election of members of such advisory committees. 4.3.16 Contract for Goods and Services. The Community Association shall have the power to contract for goods and services for the benefit of the Community Common Area that are necessary for the Community Associafion to perform its dufies and obligafions hereunder. Such contracts may include joint agreements with other homeowners associations for the sharing of services or equipment provided to both the Covered Property and the project govemed by such other homeowners association. 4.3.17 Litigation. Subject to the provisions ofthis Declarafion, including, but not limited to, the Article entified "Term and Enforcement," the Community Association shall have the power, but not the duty, to initiate, defend, settle or intervene in mediafion, arbitrafion, judicial or administrative proceedings on behalf of the Community Association in matters pertaining to (a) the application or enforcement of this Declaration and (b) damage to the Community Common Area. Any recovery or award by the Community Associafion with respect to any damage to or defect in the Community Common Area shall be applied (i) first, for the purpose of repairing such defects, (ii) second, for replacing Reserve Funds previously utilized by the Community Association to cause such repairs and (iii) then to the costs of such litigafion. 4.3.18 Capital Improvements. The Community Board may, on its own motion or acting on a petition signed by a majority of the Owners, approve the constmction, installation or acquisition of a particular capital improvement to the Community Common Area, subject to the limitations set forth in Section 4.5.7(a) of this Declaration. 4.4 Duties of Community Association. The Community Association shall have the duty and obligation to perform the acts and functions stated in this provision subject to and in accordance with the Community Goveming Documents. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 25 6418 4.4.1 Communitv Standards. The Communitv Association shall establish and maintain overall quality standards for the Covered Property compatible with the development of the Aviara Premier Collection, including, without limitation, design, signage, graphics, maintenance and landscape standards. The inherent powers and duties emanating therefrom may be delegated by the Community Board to the Architectural Committee. 4.4.2 Community Common Area. The Community Association shall accept any Community Common Area and Improvements situated thereon and any easements conveyed by the Declarant, any Merchant Builders or the Apartment Qwner and shall maintain, operate, and otherwise manage all of the facilities situated on the Community Common Area, the facilities required to be maintained by the Community Association, and all personal property acquired by the Community Association in accordance with the terms and provisions of this Declaration. The Community Board shall periodically review the nature and scope of the operations of the Community Association to assure such operations are in satisfactory compliance with the requirements of the Community Governing Documents. 4.4.3 RV Site. The Association shall maintain the RV Site and the Community Association shall enter into agreements, as may be necessary, with the Aviara Master Association for the shared use and shared costs for maintenance of the RV Site, 4.4.4 Aviara Premier Collection Entries. The Community Association shall maintain those Aviara Premier Collection Entries located on the Covered Property and shall enter into agreements, as may be necessary, with the Aviara Master Association for the shared use and shared costs for maintenance of any Aviara Premier Collection Entries located on the real property subject to the Aviara Master Declaration. 4.4.5 Taxes. The Community Association shall have the duty to pay all real and personal property taxes and assessments and all other taxes levied against any portion of the Community Common Area owned in fee title by the Community Association, personal property owned by the Community Association or against the Community Association. Such taxes and assessments may be contested by the Community Association, provided, that they are paid or that a bond insuring payment is posted before the sale or the disposition of any property to satisfy the payment of such taxes. 4.4.6 Community Assessments. The Community Association shall establish, determine, levy, collect and enforce all Community Assessments and cause to be prepared all budgets and financial statements. 4.4.7 Utility Services. The Community Association shall obtain utility services necessary or desirable for the benefit of the Community Common Area, including, but not limited to, water, gas, electricity, telephone, refuse collection, sewage disposal and other services necessary to perform its other obligations under this Declaration. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 26 6419 4.4.8 Architectural Control. The Conimunity Association shall have the duty to maintain architectural control over the Covered Property (except with respect to the Apartment Project situated within Planning Area 18), promulgate Architectural Guidelines and appoint the Architectural Committee in connection therewith in accordance with the provisions of the Article hereof entitled "Architectural Control." 4.4.9 Communitv Association Rules. The Community Association Rules are attached hereto as Exhibit "E." Subject to the restrictions set forth in Section 3.3.2, the Community Association shall adopt, amend, and repeal the Community Association Rules as it deems reasonable. The Community Association Rules shall govem such matters in furtherance of the purposes of the Community Association, including, without limitation, the use of the Community Common Area; provided, however, that the Community Association Rules may not discriminate among Owners, except to reflect the different nature of the rights of any Cost Center or the Apartment Owners or the Condominium Owners or the Commercial Areas or the tenants of Apartment Units as provided in the Article hereof entitled "Apartment Area and Commercial Area Ownership," and shall not be inconsistent with the Community Goveming Documents. In the event of any conflict between any such Community Association Rules and any other provisions of the other Community Governing Documents, the provisions of the Community Association Rules shall be deemed to be superseded by the provisions of the other Community Goveming Documents to the extent of any such inconsistency. 4.4.10 Common Area Maintenance. The Community Association shall maintain the Community Common Area and any other property and interests owned by the Community Association in accordance with the provisions of the Community Goveming Documents, and acquire, maintain and replace such fumishings and equipment as the Community Board shall determine proper. All of such obligations shall be discharged when and in such manner as the Community Board determines in its judgment to be appropriate, provided that the Community Association shall conform with the requirements of any agreements entered into between the Declarant, or by a Merchant Builder or the Apartment Owner with the written consent of Declarant, with a Governmental Agency pertaining to the Community Common Area. The Community Association shall prepare or cause to be prepared and implemented, on an armual basis, a comprehensive maintenance program for maintenance of the Community Common Area, which maintenance program shall be subject to review and approval by the Community Board. 4.4.11 Insurance. The Community Association shall contract for and maintain insurance in accordance with the requirements set forth in the Article hereof entitled "Insurance." 4.4.12 Liens and Charges. The Community Association shall pay any amount necessary to discharge any lien or encumbrance upon the Community Common Area, or any other property or interest of the Community Association. Where one or more Owners are jointly responsible for the existence of such lien, they shall be jointly and severally liable for the cost of Aviara Collection Community - CC&Rs 21276-13 -1298005.13 27 6^20 discharging it, and any costs incurred by the Community Association by reason of said lien or liens shall be specially assessed to said Owner(s). 4.4.13 Reserves. The Community Association shall establish and maintain a working capital and contingency fund pursuant to the Section entitled "Community Association Funds" of the Article entitled "Community Funds and Assessments." 4.4.14 Use of Proceeds to Repair. In the event the Community Association receives, on its own behalf or for the benefit of the Owners, any proceeds as a result of any construction defect or other claims brought by the Community Association relating to repair or maintenance obligations of the Community Association, then the Community Association shall apply such proceeds first for the purpose of repairing such defects or replacing reserve funds previously utilized by the Community Association to cause such repairs and then to the costs of such litigation. 4.5 Prohibited Activities. Notwithstanding any other provisions ofthis Declaration or the other Community Goveming Documents, the Community Association is expressly prohibited from undertaking or performing any of the following activities, or expending or otherwise utilizing Community Association funds or resources therefor, and the following activities shall not constitute Permitted Functions of the Community Association. 4.5.1 Property Manager. The Community Association shall not (a) hire, as a professional manager, any full time employees for the Covered Property; or (b) rent, lease or otherwise furnish offices, personnel or other facilities, whether located within the Covered Property or off-site or utilize any Community Common Area as office space or other facilities for an "on-she" manager ("Manager") or for performing other Community Common Area and day-to-day administrative activities. The Manager for the Community Association shall at all fimes be a professional manager employed as an independent contractor officer at its own place of business; provided, however that, unless otherwise approved by Declarant, the Manager shall not also be the manager of the Aviara Master Association. Nothing contained herein shall limit the Community Association from hiring other employees for the Covered Property. 4.5.2 Political Activities or Contributions. The Community Association shall not engage in any federal, state or local political activities or activities intended to influence a governmental action affecting areas outside the boundaries of the Covered Property (e.g., endorsement or support of (a) legislative or administrative actions by a Govemmental Agency which affect persons or property outside the Covered Property, (b) candidates for elected or appointed office, and (c) initiatives, recall elections or other ballot proposals). The Community Association is prohibited from conducting, sponsoring, participating in or expending funds or resources on any activity, campaign or event, including without limitation any social or political campaign, event or activity, that does not directly and exclusively pertain to a Permitted Funcfion. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 28 6421 4.5.3 Subassociation or Cost Center. For so long as Declarant has the rights under Sections 3.2.3 and 3.4 of this Declaration, neither the Community Association nor any Owner nor any Merchant Builder, without the prior written consent of Declarant, shall (a) form an association (as defined in Califomia Civil Code Section 1351(a)) to manage any portion of the Covered Property or (b) create a Cost Center, special benefits area or other such device to apportion any Common Expenses of the Community Association against fewer than all of the Owners and their Lots. For so long as the Apartment Owner has the voting rights under Section 3.2 of this Declaration, the Community Association, without the prior written consent ofthe Apartment Owner, shall not (a) create a Cost Center, special benefits area or other such device to apportion any Common Expenses ofthe Community Association against all or any portion of the Apartment Area or (b) dissolve any Cost Center against any of the Covered Property. 4.5.4 Mortgagee Consents. For so long as Declarant has the rights under Sections 3.2.3 and 3.4 ofthis Declaration, the Community Association may not, without the prior written consent of Declarant, take any action listed in Section 14.9 of the Declaration for which the consent of Owners or First Mortgagees is required. 4.5.5 Reserved Rights of Declarant, Merchant Builders and Apartment Owners. For so long as Declarant or any Merchant Builder or any Apartment Qwner is entitled to exercise any right, or avail itself of any exemption, in Article 10 or elsewhere in this Declaration, neither the Community Association, nor the Community Board, nor any Qwner shall take any action that is inconsistent with, or that would abrogate, any such right or exemption. 4.5.6 Limitations on Authority of Community Board. The Communitv Board shall not take any of the actions hsted below except with the vote or written consent of (a) a majority of the Members of each of Class ofthe Voting Power during the time the three-class voting structure set forth in the Section entitled "Classes of Voting Membership" in the Article entitled "Membership in the Community Association" is in effect; or (b) except with the vote at a meeting of the Community Association or by written ballot without a meeting pursuant to Corporations Code Section 7513 of at least a majority of the Members ofthe Community Association including at least a majority of Community Association Members other than Declarant after conversion to a single Class A voting membership. (a) Limit on Capital Improvements. The Communitv Board shall not, without obtaining the consent of the Members as set forth above, incur aggregate expenditures for capital improvements to the Community Common Area in any fiscal year in excess of five percent (5%) of the budgeted gross expenses of the Community Association for that fiscal year. (b) Limit on Sales of Community Common Area. The Community Board shall not, without obtaining the consent ofthe Members as set forth above, sell during any fiscal year property of the Community Associafion having an aggregate fair market value greater Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 29 642, than five percent (5%) of the budgeted gross expenses of the Community Association for that fiscal year. (c) Limit on Third Person Contracts. The Community Board shall not, without obtaining the consent ofthe Members as set forth above, enter into a contract with a third person (other than a Govemmental Agency) wherein the third person will fumish goods or services for the Community Common Area or the Community Association for a term longer than one year with the following exceptions: (i) A contract with a public utility company if the rates charged for the materials or services are regulated by the Public Utilities Commission; provided, however, that the term of the contract shall not exceed the shortest term for which the supplier will contract at the regulated rate; (ii) A prepaid casuahy and/or liability insurance policy not to exceed three (3) years duration; provided that the policy permits short-rate cancellation by the insured; (iii) A contract for a term not to exceed three (3) years that is terminable by the Community Association after no longer than one year without cause, penalty or other obligations upon not more than ninety (90) days written nofice of terminafion to the other party; and (iv) Agreements for television services, satellite dish services, communication services, or comparable technology and equipment with terms not in excess often (10) years, provided that if Declarant has a direct or indirect ownership interest in the supplier of such services or equipment equal to or greater than ten percent (10%)), then agreements with such supplier shall provide that such services or equipment must be supplied at rates which are no more than the rates charged for comparable services or equipment supplied by providers thereof which are not affiliated with Declarant and are capable of providing such services or equipment to the Covered Property. 4.5.7 Termination of Contract. (a) Contracts or Leases. Except as permitted in the Section above entitled "Limit on Third Person Contracts,"any contract or lease, including any contract providing for the services of Declarant, entered into by the Community Association while Declarant controls the Community Association shall not exceed three (3) years and shall provide that the Community Association has the right to terminate such contract or lease with cause upon thirty (30) days written notice and without cause and without penalty or the payment of a termination fee at any time after the transfer of control of the Community Association from Declarant upon not more than ninety (90) days notice to the other party. For purposes ofthis Section, the term "control" shall mean the right Aviara Collection Community - CC&Rs ^ 21276-13 -1298005.13 jO 642, of Declarant to exercise unilateral control over the Community Association, the Commumty Board, or the Owners in any-manner other than by Declarant's exercise of votes allocated to Declarant on the same basis as votes are allocated to other Owners. (b) Professional Management Contracts. Any agreement for professional management or the Covered Property or any agreement providing for services ofthe Declarant shall be for a term not to exceed one (1) year without the vote or written assent of a majority of each class of members; provided, however, that in no event shall such an agreement exceed a term of three (3) years. Any such agreement shall provide that the agreement may be terminated by either party without cause and without penalty or the payment of a termination fee upon not more than ninety (90) days written notice. 4.5.8 Compensation. The Community Association shall not pay compensation to Community Directors or officers of the Community Association for services performed in the conduct of the Community Associafion's business; provided, however, that the Community Board may cause a Community Director or officer or a member of the Architectural Committee to be reimbursed for expenses approved by the Community Board and incurred in carrying on the business of the Community Association. Nothing contained herein shall limit the Association from paying compensation to any members of any committees appointed by the Community Board, including the Architectural Committee. ARTICLE 5 PROPERTY RIGHTS EASEMENTS 5.1 Property Rights. 5.1.1 Ownership of Community Common Area. The Community Association must accept the conveyance of fee title to or easement right in any Community Common Area to the Community Association when conveyed by the Declarant or any Merchant Builder or Apartment Owner, and the Community Association shall execute each such deed and any accompanying escrow instructions if requested to do so by Declarant, a Merchant Builder or an Apartment Owner. No Owner shall interfere with the exercise by the Community Associafion, Declarant, Merchant Builder or an Apartment Owner of its rights or the fulfillment of hs obligafions hereunder. Notwithstanding the foregoing. Declarant and a Merchant Builder (with Declarant's written consent) and their respective agents and employees shall have the right to come on the Community Common Area to complete the constmction of any improvements to be installed on the Community Common Area. Also, notwithstanding the foregoing, in the event that any of Declarant's subcontractors are contractually obligated to maintain improvements on the Community Common Area, such maintenance shall not be assumed by the Community Association until the terminafion of such contractual obligation. Neither such construction nor such maintenance shall in any way postpone the commencement of Community Assessments pursuant to this Article or entifie a Member to claim Aviara Collection Community - CC&Rs 21276-13 -1298005.13 31 6424 any offset or reduction in the amount of such Community Assessments, The nature, design, quantity, quality and-all other attributes of the Community Common Area, and the facilities and amenities thereon, shall be determined in Declarant's sole and absolute discretion or by a Merchant Builder (with Declaranf s written consent). 5.1.2 Restrict Use of Community Common Area. The Community Association shall have the right to limit and restrict the use of the Community Common Area and portions thereof during specific times or on specific dates, and to prohibit all use and access to portions of the Community Common Area that are Cost Center Maintenance Areas or as otherwise deemed necessary by the Community Board for health, safety, welfare, privacy or similar purposes. 5.1.3 Suspend Right to Use Communitv Common Area. The Community Association shall have the right after Notice and Hearing, to temporarily suspend the right to use the facilities located on the Community Common Area by an Owner pursuant to the terms of the Community Governing Documents. 5.1.4 Establish Special Assessment Districts. The Community Association shall have the right to establish, in cooperation with the City, the County or any other Govemmental Agency, one or more special assessment districts for the performance of all or a portion of the maintenance and other funcfions now within the responsibility of the Community Association, together with the right of the Community Association to, convey, lease or otherwise transfer, subject to the provisions of this Declaration, all or any portion of the Community Common Area to said district. 5.1.5 Use by Public. The Community Association shall have the right to allow use of the Community Common Area by members of the public, pursuant to any requirements imposed by the City, the County or any other Governmental Agency. 5.1.6 Access. The Community Association shall have the right of access, ingress and egress over the Community Common Area and the right of installation and use of utilities, telecommunication lines and facilities, fiber optics lines, lines for data conveyance, electro-magnetic transmissions, radio and infrared transmissions and technological evolutions ofthe foregoing on the Community Common Area for the benefit of the Covered Property. 5.1.7 Grant Access and Utility Easements. The Community Associafion shall have the right to grant maintenance, access and utility easements over the Community Common Area to others and to convey interests in the Community Common Area to others and the right to dedicate or transfer all or any part of the Community Common Area or any interest therein to any public agency, authority or utility or other entity, which dedication or transfer shall be subject to the provisions of this Declaration and such other conditions as the Community Associafion deems proper. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 ->2 642 5 5.1.8 . Delegation of Use. Any Owner may delegate his or her right of enjoyment of the Community Common Area to the members ofsuch Owner's family or tenants who reside on such Owner's Lot, or to such Owner's guests, subject to rules and regulafions adopted by the Community Board and any applicable provisions of the Community Goveming Documents. 5.1.9 Waiver of Use. No Owner may exempt himself or herself from liability for Community Assessments duly levied by the Community Associafion, nor release the Lot owned by such Owner from the liens and charges hereof, by waiver of the use and enjoyment of the Community Common Area or the abandonment of his or her Lot. 5.2 Easements. An Owner's right to enjoyment of such Owner's Lot and the Community Common Area shall be subject to the easements and encroachments described below. 5.2.1 Utilities. There is hereby reserved to Declarant, the Merchant Builders and the Apartment Owner, together with the right to grant and transfer the same, easements on, over, under, through and across the Covered Property for the purpose of constmcting, erecting, operating and maintaining facilities and improvements, including without limitation, easements for the installation and mainlenance of electric, telephone, cable television, water, gas, sanitary sewer lines, and drainage facilities, roads, park areas, parkways and walkways as may be shown on any recorded subdivision or parcel maps ofthe Covered Property or as are required by the City or the County or any other Govemmental Entity. 5.2.2 Easement for Declarant, Merchant Builders and Apartment Owners Over Communitv Common Area. Declarant hereby expressly reserves for the benefit of Declarant, all Merchant Builders and the Apartment Owner for the benefit of their respective agents, subcontractors, invitees, employees and contractors, and for the benefit of their respective successors and assigns, a nonexclusive easement appurtenant lo the Community Common Area, in, to, and over the Community Common Area for access, ingress, egress, use and enjoyment and for access to the Annexable Property, in order for Declarant or other Merchant Builders or Apartment Owner to market Lots or Apartments in the Aviara Premier Collection to other Merchant Builders and other prospective purchasers and tenants, including, without limitafion, prospecfive purchasers of the Merchant Builders and prospective tenants of the Apartment Owner or to develop, constmct, market, sell, lease or otherwise dispose of the Annexable Property. Such easement shall continue until the later of (i) the last close of escrow for the sale to a member of the homebuying public ofa Lot in the Annexable Property has occurred, or (ii) the Apartment Owner no longer has any voting rights under Section 3.2 of this Declaration. 5.2.3 Encroachments. Each Owner of a Lot adjacent to the Community Common Area, or another Lot shall have an easement over said Community Common Area, or contiguous Lot for use and maintenance or encroachments thereon due to settlement or shifting of buildings or other improvements, original construction errors or any other similar causes, so long as said encroachments exist. However, no such easement for encroachments shall exist if an Aviara Collection Community - CC&Rs 21276-13 -1298005,13 33 6^26 encroachment occurred due to the willful conduct of the Owner of the Lot. The rights and obligations of Owners in the Covered Property shall not be otherwise altered or affected by any such encroachment. In the event any portion of the Covered Property is partially or totally destroyed, the encroachment easement shall exist for any replacement stmcture that is rebuilt pursuant to the original construction design. The easement for the maintenance of the encroaching improvement shall exist for as long as the encroachments exists; provided, however, that no valid easement of encroachment shall be created due to the willful misconduct of the Community Association or any Owner. Any easement of encroachment may, but need not be, cured by repair and restoration of the stmcture. 5.2.4 Cable Television. There is hereby reserved to Declarant and the Merchant Builders and the Apartment Owner, together wilh the right to grant and transfer the same, an exclusive easement for the right to place on, under or across the Covered Property, transmission lines and olher facilities for a community antenna system and satellite master anterma system for television or the conveyance of data, radio, electromagnetic or infrared transmissions or technological evolutions of the foregoing and thereafter lo own and convey such lines and facilifies and the right to enter upon the Covered Property to service, maintain, repair, reconstmct and replace said lines or facilities. 5.2.5 Development Easements. Declarant, the Merchant Builders, the Apartment Owner and each of their agents, employees and independent contractors shall have the easements described in the Article hereof entitled "Development Rights." 5.2.6 Trail System. There is hereby reserved to Declarant and the Community Associalion, together wilh the righl to grant and transfer the same, an easement for public ingress and egress over the Trail System. 5.2.7 Repair and Maintenance. There is hereby reserved to Declarant and the Community Association, together with the right to grant and transfer the same, an easement over the Lots and the Community Common Area on the purpose of performing its repair and maintenance obligalions, including without limitation easement over the View Corridors and Coastal Lane Zones. 5.2.8 Fire Suppression Zones; Easements. There is hereby reserved to Declarant, together with the right to grant and transfer the same to the Community Association and its agents, easements in, over and across all Fire Suppression Zones for the maintenance thereof in accordance with the Fire Suppression Landscape Guidelines and for access, ingress and egress to Fire Suppression Zones at and along the property lines ofall Lots within the Covered Property that contain Fire Suppression Zones (or at such other location from time to fime made available for such purpose by the Owner of such Lots) and access to such Fire Suppression Zone for the mainlenance and repair Ihereof as required by Fire Suppression Landscape Guidelines. Exercise of these easements (i) shall be preceded by not less than (10) ten days written notice to the Owners ofthe Lots on which such work is to be conducted, (ii) shall nol be exercised more than three (3) times in Aviara Collection Community - CC&Rs 21276-13 -1298005.13 34 S42' ? any calendar year, (iii) shall be exercised only during daylight hours and (iv) shall be subject to such further restrictions as-the Community Association shall determine necessary to preserve the privacy of the Owners of the Lots subject to these provisions consistent in all events with the obligation of the Community Association to maintain such Fire Suppression Zones. 5.2.9 Community Association Easements. There is hereby reserved to Declarant, the Community Association and their duly authorized agents and representatives, such easements as are necessary to perform the duties and obligations of the Community Association as are sel forth in the Community Governing Documents. 5.2.10 Easements to Declarant for Adjoining Property. There is hereby reserved to Declarant an easement over, upon, through and across the Community Common Area, as servient tenement, for the purpose of reasonable ingress lo and egress from, over and across the Covered Property to the Annexable Property until all of such property is annexed to the Covered Property pursuant to the recording of a Supplementary Declaration in accordance withthe provisions of the Article hereof enlitled "Annexation of Real Property." 5.2.11 Easements for the Benefit of Golf Course. Easements are hereby reserved and established over those portions of the Lots ("Golf Course Lots") within the Covered Property lhat are contiguous to the fairways, rough and playing areas ofthe Golf Course for the benefit of the Owner of the Golf Course and hs members and olher persons authorized to use and maintain the Golf Course as are reasonably necessary to permit golf course play, maintenance and repair and are customarily associated with, normally expected or commonly arising out ofthe proximity of golf course play adjacent to or near residenlial lots, including without limitation, the burden, inconvenience, damage and/or injury that may arise or can reasonably be expected and/or foreseen in connection with such activity. 5.2.12 Easements for the Benefit of Resort/Hotel Propertv. Nonexclusive easements appurtenant to the Resort/Hotel Property are hereby reserved and established in, over and across all streets (other lhan private gated streets) wilhin the Covered Property to operate, sponsor, promote and/or conduct toumaments, festivals, and other public, private and/or group activities and/or entertainment within such easement areas; to operate shuttle services, to provide food and alcoholic beverage service including, without limitation, mobile cart, snack bar and outdoor catering services, to schedule, accept, order, send, initiate and receive daily twenty-four hour delivery of goods, supplied, produce, food beverage and services in connection wilh the use and operation of the facilities and improvements now or hereafter located on or within the Resort/Hotel Property; to provide for member, guest, patron, staff and employee parking; and to plan, coordinate, advertise, photograph, operate, and conduct any of the activities described in this Section including, without limitalion, the coordination of vehicular traffic and/or parking, the placement and use of signage, filming, interior and/or exterior lighting and other matters customarily and/or reasonably associated with any such uses and activities. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 35 6428 5.2.13 Transfer of Easements. As to the easements reserved to Declarant, together with the right to grant and transfer the same to the Merchant Builders and the Owners, Declarant shall convey said easements to the Owners in the same instmment conveying the interest required by an Owner by specific description or by reference in said instrument. If such description is not contained in said instmment through inadvertence, mistake or any other cause, such easements shall nevertheless be conveyed to each Owner by such instrument. 5.2.14 Amendment to Eliminate Easements. This Declaration cannot be amended to modify or eliminate the easements established or reserved for the benefit of Declarant, Merchant Builders, the Owner of the Golf Course, the Owner of the Resort/Hotel Property, the Qwner of the Commercial Area or the Apartment Qwner herein or the benefit of Section 2.42 with respect to the Commercial Area without prior written approval of the beneficiary thereof and any atlempt to do so shall have no effect. Any attempt to modify or eliminate this Article shall likewise require the prior written approval of Declarant, Merchant Builders, the Owner of the Golf Course, the Owner of the Resort/Hotel Property, Owner of the Commercial Area and the Apartment Qwner. ARTICLE 6 COMMUNITY FUNDS AND ASSESSMENTS 6.1 Creation of thc Lien and Personal Obligation of Assessments. The Declarant, for each Lot owned by it, hereby covenants and agrees to pay, and each Qwner, by acceptance ofa deed or other conveyance creating in such Owner the interest required to be deemed an Owner, whether or not it shall be so expressed in any such deed or other conveyance, is deemed to covenant and agree to pay Community Assessments to the Community Association in accordance with the requirements of the Community Goveming Documents, including, without limitation, the following: Regular Assessments, Special Assessments, Capital Improvement Assessments, Reconstmction Assessments and Enforcement Assessments. Such Community Assessments shall be fixed, established and collecled from time lo time as hereinafter provided. Such Commumty Assessments together with such interest, late charges and costs and reasonable attorneys' fees, shall be the debt of and personal obligafion of the Owner of such Lot at the time when the Community Assessment fell due. The personal obligation for such Community Assessments shall nol pass to the successors in title of an Owner unless expressly assumed by such successors. Each such Community Assessments, together with interest thereon, late charges, attorneys' fees and court costs, and other costs of collection thereof, as hereinafter provided and upon recordation of a Notice of Delinquent Assessment in accordance with the provisions of the Section of this Article entitled "Notice of Default; Foreclosure" shall be a lien upon the Lot against which each such Community Assessment is made. 6.2 Community Association Funds. The Community Association shall establish and mainlain a Maintenance and Operation Fund into which the Community Board shall deposit Regular Assessments. The Community Association shall also establish and maintain such other funds Aviara Collection Community - CC&Rs 21276-13 -1298005.13 36 6429 (including a Reserve. Fund and Capital Improvement Fund) as the Community Board deems appropriate for deposit and disbursement of other Community Assessments as the Community Board may from time lo time establish. All of said funds are generally referred to herein as the "Communily Funds." The Community Board shall establish and collect all Community Assessments and, where necessary, enforce the liens therefor as provided for in this Article. 6.3 Purpose of Community^ Assessments. The Community Assessments levied by the Community Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of the Covered Property, for the improvement and maintenance of the Community Common Area, to reimburse the Community Association for the costs incurred in bringing an Owner into compliance with the Community Governing Documents and to discharge any other obligalions under the Community Goveming Documents. Regular Assessments shall be used to satisfy Common Expenses as provided herein and in the Community Bylaws. If the Community Association decides to use or transfer Reserve Funds (as defined below) to pay for liligalion, the Community Association musl nolify ils Members of the decision at the next available mailing. Such notice shall provide an explanation of why the litigation is being initiated or defended, why operating funds cannot be used, how and when the Reserve Funds will be replaced, and a proposed budget for the litigation. The notice must state that the Members have a right to review an accounfing for the litigation as provided in the Califomia Civil Code Section 1365.5 and any successor statutes or laws, which will be available at the Community Association's office. The accounting shall be updated monthly. 6.4 Nature of Community Assessments. The Community Board shall establish the following Communily Assessments, each of which shall be used only for the purposes specified in this Article. 6.4.1 Regular Assessments. Regular assessments ("Regular Assessments") shall be an annual assessment for Common Expenses fixed and levied by the Community Board based upon the estimated costs of operation of the Community Association in accordance with the budgets prepared pursuant to the provisions of the Community Bylaws, and the accomplishment of its purposes, performance of ils duties and the exercise of its powers that benefit the entire Covered Property. The amount and lime of payment of Regular Assessments shall be determined as provided for below. Until January Isl of the year immediately following the conveyance of the first Lot to an Owner, the annual maximum Regular Assessment shall not exceed the maximum amount permitted for the Community Association under any Public Report issued for such period by the DRE for any Lot then subject to this Declaration. Increases in Regular Assessments shall be subject to the limitations set forth in the Section of this Article entified "Limitafion on Assessments". 6.4.2 Special Assessments. Special assessments ("Special Assessments") may be levied al any time during any fiscal year if the Regular Assessments prove inadequate for any reason, including nonpayment of any Owner's share Ihereof Special Assessments shall be assessed Aviara Collection Community - CC&Rs ^ 21276-13 -1298005,13 ' ^' 6430 and allocated in the same manner as Regular Assessments. Increases in Special Assessments shall be subject to the limitations set forth in the Section below entitled "Limitation on Assessments." 6.4.3 Capital Improvement Assessments. In addifion to the Regular Assessments, the Community Association may levy, in any fiscal year, capital improvement assessments ("Capital Improvement Assessments") applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction or replacement (other than due to destruction) of a described capilai improvement upon the Community Common Area to the extent the same is nol covered by the provisions affecting Reconstmction Assessments in the Article hereof enlitled "Destruction of Improvements and Eminent Domain," including the necessary fixtures and personal property related thereto. In no event, however, shall the Capilai Improvement Assessments include assessments for the improvements constructed on the Community Common Area in connection with the initial construction of the Community Common Area. Capital Improvement Assessments shall be assessed and shall be allocated to Owners in the same maimer as Regular Assessments. All amounts collecled as Capital Improvement Assessments may only be used for capilai improvemenls and shall be deposited by the Community Board in a separate bank account to be held in trust for such purposes. Said funds shall not be commingled with any other finds of the Community Association and shall be deemed a contribution to the capital account of the Communily Associalion by the Members. Increases in Capital Improvements Assessments shall be subject to the limitations set forth in the Seclion below entified "Limitafion on Assessments." 6.4.4 Enforcement Assessments. The Community Associafion may levy enforcemenl assessments ("Enforcemenl Assessments") against any Owner who causes damage to the Community Common Area or for bringing an Owner or such Owner's Lot into compliance with the provisions of the Communily Goveming Documents or any other charge designated an Enforcemenl Assessment in the Communily Goveming Documenls, together with attomeys' fees, interesl and olher charges related thereto as provided in this Declaration. In the event the Communily Association undertakes to provide materials or services which benefit individual Owners, then such Owners in accepting such malerials or services agree that the costs thereof shall be an Enforcement Assessment. The Communily Board shall have the authority to adopt a reasonable schedule of Enforcement Assessments for any violafion of the Community Goveming Documents. If after Notice and Hearing, the Owner fails lo cure or continues such violation, the Community Association may impose an additional fine each time the violafion is repeated and not corrected as provided for herein, and may assess and enforce against such Owner the Enforcement Assessment as herein provided for nonpayment of a Community Assessment. A hearing committee may be established by the Community Board to administer the foregoing. 6.4.5 Reconstruction Assessments. Reconstruction assessments ("Reconstruction Assessments") may be levied by the Community Board under the conditions and in the manner specified in the Article hereof enlitled "Destruction of Improvements and Eminent Domain." Aviara Collection Community - CC&Rs 21276-13 -1298005,13 38 6431 6.4,6 . Formation of Cost Centers, Subject to the provisions of Sections 3.3.1, 3.6 and 4.3.15 ofthis Declaration, the Community Association may establish additional Cost Centers wilh respect to portions of the Covered Property lhat directly receive a special benefit from portions of the Community Common Area and may levy Regular Assessments with a component for such Cost Center as provided in Section 6.8 below, a majority vote of the Owners of the Lots benefitted by the proposed Cost Center. Upon ils approval, the Cost Center and Cost Center Maintenance Area shall be described in a Supplementary Declaration recorded by the Community Association as provided in Section 16.5 of this Declaration. From and after the formation of such a Cost Center, it shall be administered by the Communily Association in the same manner as all other Cost Centers provided for in this Declaration. Nothing contained herein shall give the Community Association any rights to approve Cost Centers established by the Declarant upon the recordation of this Declaration or the recordation of a Supplementary Declaration. 6.5 Limitation on Assessments. TheCommunilyBoardshalllevy Regular Assessments and Special Assessments sufficient lo perform the obligations of the Community Association as provided in the Declaration and Community Bylaws; provided, however, except for assessment increases necessary for emergency situations, and except for Special Assessments imposed to restore funds to the Community Association pursuant to Califomia Civil Code Section 1365.5(c) and except as provided in this Section: (a) the Community Board may not increase the Regular Assessments for any fiscal year unless the Community Board has complied with the provisions of Califomia Civil Code Section 1365.5 (preparation and distribution of the budget), and (b) the Community Board may nol impose a Regular Assessment that is more lhan twenty percent (20%) greater than the Regular Assessment for the Community Association's preceding fiscal year (whether such percentage is calculated against the General Assessment Component or Cost Center Assessment Component as described in the Secfions below enlitled "General Assessment Component" and "Cost Center Assessment Component" or the aggregale of bolh such amounts) nor Special Assessments which in the aggregale exceed five percent (5%) of the budgeted gross expenses of the Community Association for the fiscal year (whelher such percentage is caiculaled against the Common Expenses of the Community Association or, if the Special Assessment is to be levied only against a Cost Cenler, to the Common Expenses of a Cost Center), without the approval of sixty-seven percent (67%) of the Voting Power of the Members affected Ihereby at a meeting or elecfion of the Community Association conducted in accordance with Chapter 5 (commencing with Section 7510) of Part 3 of Division 2 of Title I of the California Corporafions Code and Section 7613 of the California Corporations Code at which a quorum was present or participated. Notwithstanding the foregoing, if any such Regular Assessments or Special Assessments include a Cost Center Assessment Component, and the amount of such increases of Regular Assessments or levy of Special Assessments would not otherwise require the approval of Owners subject only to the General Assessment Component, only the approval of Owners within the applicable Cost Center shall be required for increases to the Regular Assessments or the levy of Special Assessments that only result in the increases described above to the total Regular Assessments or the levy of Special Assessments applicable to the Cost Cenler, Aviara Collection Community - CC&Rs 21276-13 -1298005.13 39 6432 6.5.1 . Quorum. For purposes of this Section, "quomm" means Owners holding more than fifty percent (50%>) of the Voting Power. 6.5.2 Emergency Situation. For purposes of this Section, an emergency situation is any one of the following: (a) An extraordinary expense required by an order of a court; (b) An extraordinary expense necessary to repair or maintain the Covered Property or any part of il for which the Community Associafion is responsible where a threat to personal safety in the Covered Property is discovered; or (c) An extraordinary expense necessary to repair or maintain the Covered Property or any part of il for which the Community Association is responsible that could nol have been reasonably foreseen by the Community Board in preparing and distributing the Base Budget required under the Declaration and Community Bylaws. However, prior to the imposhion or collection of an assessment subsection, the Communily Board shall pass a resolution containing written fmdings as to the necessity of the extraordinary expense involved and why the expense was nol or could not have been reasonably foreseen in the budgeting process, and the resolution shall be dislribuled lo the Members with the nolice of assessment. Any increases authorized by this Secfion shall nol be imposed unless the Community Board has complied with the budgetary requirements set forth in the Community Bylaws with respect to the fiscal year for which an assessment is being levied. The lerm "Regular Assessment for the Communily 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 Assessments and Special Assessments shall comply with the laws of the Slale of Califomia at the time the Regular Assessment or Special Assessment is levied by the Community Association. 6.5.3 Notice to Owners. The Community Association shall provide notice by first class mail to the Owners of any increase in the Regular Assessments or Special Assessments ofthe Community Associafion, not less lhan thirty (30) days and not more than sixty (60) days prior to the increased assessment becoming due and payable. 6.6 Increases in Assessments Based Upon Range of Assessments. Declarant has submitted lo the DRE a budget which provides for a range in the amount of the Regular Assessments over the course of the development of the Covered Property ("DRE Approved Budget"). Therefore, notwithstanding any limitations contained in this Declaration to the contrary, but subject to Section 1366(b) of the California Civil Code or any successor statute thereof, in the event that the amount of the Regular Assessments is greater than the amounts permitted to be increased by this Aviara Collection Community - CC&Rs 21276-13 -1298005,13 40 643, '3 Declaration withoui a vote of the Voting Power pursuanl to the requirements set forth in Section 6.5 above, then the Community Board, on behalf of the Community Association and without the requirement of prior nofice to the Members or a vote of the Members, shall be entitled to increase the maximum Regular Assessment at that time to an amount which is within the range of assessments as approved by the DRE. 6.7 Maintenance and Subsidy Agreements. Notwithstanding any other provisions of this Declaration or the Community Bylaws regarding the term and tennination of contracts with Declarant or Merchant Builders for providing services to the Community Association, Declarant (and any Merchant Builder with the written consent of Declarant) may enter into one or more written maintenance or subsidy agreements with the Communily Association under which Declarant (or such Merchant Builder, as the case may be) shall pay all or any portion ofthe Common Expenses and/or perform all or any portion ofthe Community Association"s maintenance responsibilities in exchange for a temporary suspension of all or a portion ofthe Regular Assessments. Each such maintenance or subsidy agreement shall be for a term and shall be on such condifions as are approved by the DRE, and may require Owners to reimburse Declarant or any of such Merchant Builders, through the Community Association, for a portion of the costs expended by Declarant in satisfaction of Common Expenses. 6.8 Allocation of Community Assessments to Lots. The Community Assessments shall be assessed and allocated lo each assessable Lot as sel forth below; provided, however, lhat with respect to the Apartment Area, such Community Assessments shall be assessed and fixed al a rale set forth in the Article hereof entitled "Apartment Area and Commercial Area Ownership." 6.8.1 General Assessment Component. The Regular Assessments exclusive of the Common Expenses included within the Cost Center Budget shall be allocated on an equal basis among all Owners (olher than the Commercial Area) and their respective Lots and/or Apartment Units as provided in the Base Budget ("General Assessment Component") excepi lhat the Owner of the Commercial Area shall pay an amount equal to its number of Equivalent Dwelling Units multiplied by the individual Regular Assessment levied against an Owner of a Dwelling. 6.8.2 Cost Center Assessment Component. The portion of the Regular Assessments budgeted exclusively lo any particular Cost Cenler in the Cost Cenler Budget shall be assessed solely to the Owners of Lots and/or Apartment Units or the Qwner ofthe Commercial Area wilhin the applicable Cost Center, as provided in the Cost Center Budget ("Cost Center Assessment Component"). 6.8.3 Other Community Assessments. Special Assessments, Reconstruction Assessments and Capital Improvement Assessments shall be allocated in the same manner as Regular Assessments. Enforcement Assessments shall be levied directly lo the individual Lots, Individual Projects or Apartment Area in a manner consistent with the provisions of Section 6.4.4 of this Declaration. Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 41 6434 6.9 Levy of Community Assessments. Community Assessments shall be levied and commence according to the procedures set forth below. 6.9.1 Commencement of Regular Assessments. Except for the Apartment Area and the Commercial Area, annual Regular Assessments shall commence as to all Lots located within a Phase of the Covered Property on the first day of the month after the close of escrow of a Lot within a Phase under authority of a Public Report or such earlier date as may be selected by Declarant for the commencement of assessments in such Phase. Regular Assessments and other Community Assessments shall commence as to each Apartment Building within the Apartment Area on the firsl day of the first month following the issuance of a Certificate of Occupancy for the Apartment Building and Regular Assessments and other Community Assessments shall commence on the Commercial Area upon the issuance of a Certificate of Occupancy for the first building in the Commercial Area. 6.9.2 Annual Levy of Regular Assessments. Any Regular Assessments in excess of the amount permitted under the DRE Approved Budget shall be fixed by the Community Board against each Lot at least sixty (60) days in advance of each annual Community Assessment period. Writlen notice of such Regular Assessment shall be sent to every Owner subject thereto at least forty-five (45) days prior to its effective date. Unless expressly provided otherwise by the Community Board, each Regular Assessment shall be payable in advance, in equal monthly installments or such installments as may be established by the Community Board, the first ofwhich installments shall be due and payable on lhe first day of the first month of each fiscal year, 6.9.3 Levy of Other Communitv Assessments. All other Community Assessments shall be fixed al such limes and in such amounts as the Community Board deems appropriate, and the owners shall be given reasonable notice thereof The due dates for such olher Community Assessments shall be established by the Community Board. 6.9.4 Initial Capital Contribution. To insure adequate funds to meet the initial expenses of the Community Association, upon the inhial sale of each Lot to an Qwner, other lhan Declarant or a Merchant Builder, such Owner shall pay to the Community Association an amount equal to one-si.xth (1/6) ofthe amount of the then annual Regular Assessment for that Lot as deiermined by the Community Board. The Owner ofthe Apartment Units shall, upon issuance of a Certificate of Occupancy for an Apartment Building, pay to the Community Associafion on amouni equal lo one-twelfth (l/12th) of the amount on the then annual Regular Assessments as payable for such Apartment Building under this Declarafion. Each Merchant Builder shall require that this amount be deposited by each Owner into the purchase and sale escrow established by the Merchant Builder and Owner and disbursed therefrom lo the Community Association. The amounts sel forth herein are not to be considered in lieu of annual Regular Assessments or any other Community Assessments levied by the Community Association. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 42 643 6.9.5 . Certificate of Payment. The Communitv Association shall, upon demand, and for a reasonable charge, fumish a certificate signed by an officer of the Community Association selling forth what the then annual Regular Assessment on a specified Lot is and whether the Community Assessments on a specified Lot have been paid. Such certificate shall be conclusive evidence of payment of any Community Assessment therein stated to have been paid. 6.10 No Offsets. All Communily Assessments shall be payable in the amount specified by the particular Community Assessment, and no offset against such amount shall be permitted for any reason, including, wilhoul limitation, a claim that the Declarant or the Community Association is nol properly exercising its duties or powers as provided for in this Declaration. 6.11 Community Assessment Rolls. The Community Association may maintain and revise annually an assessment roll for every subdivision within the Covered Property reflecting the name and address of each Owner and other data necessary to levy the Community Assessments. If an Individual Project Association has been established for a subdivision, each Individual Project Board shall supply the Community Association with the Individual Project Assessment rolls and all amendments or revisions thereto on a regular basis or, upon request therefor, from the Community Associalion. The Communily Association is not required to make such assessment roll available for distribution to Members. 6.12 Transfer of Covered Propertv. After transfer or sale of a Lot in the Covered Property, the transferring or selling Qwner or Owners shall not be liable for any Community Assessment levied on the Lot after the date of such transfer of ownership. The selling Owner shall remain personally responsible for all Community Assessments and charges levied on the Lot prior to any such transfer unless the personal obligation is expressly assumed by the transferee. 6.13 Collection of Assessments; Liens. 6.13.1 Right to Enforce. The right to collect and enforce Community Assessments or Individual Project Assessments, as the case may be, is vested in the Community Board acting for and on behalf of the Community Association. The Community Board or its authorized representative can enforce the obligations of the Owners to pay Community Assessments or Individual Project Assessments, as the case may be, provided for in this Declaration by commencement and maintenance of a suil at law or in equity, or the Community Board may foreclose by judicial proceedings or through the exercise of the power of sale pursuant to the Seclion below entitled "Notice of Default; Foreclosure" enforce the lien rights created. Suit to recover a money judgment for unpaid Communily Assessments or Individual Project Assessments, as the case may be, together with all olher Additional Charges described in the Section hereof entitled "Additional Charges" shall be maintainable without foreclosing or waiving the lien rights. Notwithstanding anything else to the contrary herein, excepi for monetary penalties imposed by the Community Association to reimburse the Community Association for costs incurred by the Community Association in the repair of damage to the Community Common Area for which the Aviara Collection Community - CC&Rs 21276-13 -1298005.13 43 6436 Member or the Member's guests or tenants were responsible, which may become a lien on the Owner's Lot, a monetary penalty imposed by the Community Associafion as a disciplinary measure for failure of a Member to comply with the Community Goveming Documents or in bringing the Member and his or her Lot into compliance with the Community Goveming Documents may not be characterized nor treated as an Community Assessment or Individual Project Assessments, as the case may be, which may become a lien against the Member's Lot enforceable by a sale of the interest hereunder. The limitalion in the preceding sentence, however, does not apply to any Additional Charges. 6.13.2 Creation of Lien. If there is a delinquency in the payment of any Community Assessment or Individual Project Assessment, as the case may be, or installment on a Lol, any amounts lhat are delinquent, together wilh the lale charge described in that Section, interest at the rate permitted in California Civil Code Seclion 1366, or any successor statute or law, and all costs that are incurred by the Community Board or ils authorized representafive in the collection of the amounts, including reasonable attorneys' fees, shall be a lien against such Lot upon the recordation in the Office ofthe County Recorder of a notice of delinquent assessment ("Notice of Delinquent Assessment") as provided in Califomia Civil Code Section 1367 and any successor statutes or laws. After its recordation, the Notice of Delinquent Assessment shall be mailed to all Owners of record of the applicable Lot as provided in Califomia Civil Code Section 1367 and any successor statutes or laws. The Nolice of Delinquent Assessment may not be recorded unless and unlil the Community Board or its authorized represenlative has sent to the delinquent Owner or Owners, nol less lhan fifteen (15) days before the recordation of the Nofice of Delinquent Assessment, a wrilten nofice of default and a demand for payment by certified mail, which notice shall contain all of the information specified in Califoraia Civil Code Section 1367 and any successor statutes or laws. 6.13.3 Notice of Default; Foreclosure. The Community Board or its authorized representative can record a notice of default and can cause the Lot with respect to which a notice of default has been recorded lo be sold in the same manner as a sale is conducted under Califomia Civil Code Seclions 2924,2924b and 2924c, or Ihrough judicial foreclosure, and as provided in CaUfomia Civil Code Section 1367 and any successor statutes or laws. However, as a condition precedent to the holding of any such sale under Section 2924c appropriaie publication shall be made. In connection with any sale under Section 2924c, the Community Board is authorized to appoint its attorney, any officer or director, or any litle insurance company authorized to do business in California as trustee for purposes of conducting the sale. If a delinquency is cured before sale, or before complefing ajudicial foreclosure, the Community Board or its authorized representative, shall cause to be recorded in the office of the County Recorder a certificate setting forth the satisfaction of such claim and release of such lien upon payment of actual expenses incurred, including reasonable attorneys' fees by any delinquent Qwner. Any payments made on delinquent Assessments shall be applied in accordance with California Civil Code Section 1367 and any successor statutes or laws. Qn becoming delinquent in the payment of any Communily Assessments or Individual Project Assessments, as the case may be, or installments thereof, each delinquent Aviara Collection Community - CC&Rs 21276-13 -1298005.13 44 643? Owner shall be deemed to have absolutely assigned all rent, issues and profits of his or her Lot to the Community Association and shall further be deemed to have consented to the appointment of a receiver (which appointment may, al the election ofthe Community Association, be enforced by the Community Association through specific performance). The Community Association, acting on behalf ofthe Owners, shall have the power to bid upon the Lot at foreclosure sale and to acquire, hold, lease, mortgage and convey the Lol and vote as an Owner of the Lot. 6.13.4 Payments Under Protest. Notwithstanding any other provisions set forth in this Section 6.13, the Owners shall have the righl to make certain payments under protest and be enlitled to alternafive dispute resolution as provided in Califomia Civil Code Secfions 1354 and 1366.3 and any successor statutes or laws, as provided in this Declaration. 6.13.5 Cure of Default. Upon the timely curing ofany default for which a Notice of Delinquent Assessment was recorded by the Community Association, officers of the Community Associalion or a managing agenl appointed by the Communily Board are hereby authorized to file or record, as the case may be, an appropriate release of such notice, upon payment by the defaulting Owner of a reasonable fee, to be determined by the Community Association to cover the cost of preparing and filing or recording such release logether with a payment of such other costs, interest or fees as shall have been incurred. 6.13.6 Non-Exclusive Remedy. The Community Assessment liens and the foreclosure and sale there under shall be in addition lo and not in substitution of all other rights and remedies which the Communily Association and its assigns may have hereunder and by law, including a suil to recover a money judgment for unpaid Community Assessments as above provided. 6.13.7 Delegation of Authoritv. Each owner, with the exception of the Secrelary ofthe U.S. Department of Veteran Affairs, an officer ofthe United States, hereby vests in and irrevocably delegates to the Community Board or its duly authorized representatives the right and power to bring all actions at law or equity, and lien foreclosures, whether judicially or by power of sale, or otherwise, against any Member for the collection of delinquent Community Assessments in accordance herewith, and hereby expressly waives any objection to the enforcement in accordance with this Declaration of the obligation to pay Community Assessments as set forth in this Declaration. 6.14 Additional Charges. In addition to any other amounts due or any other relief or remedy obtained against an Owner who is delinquent in the payment of any Community Assessments or Individual Project Assessments, as the case may be, each Owner agrees to pay Addilionai Charges incurred or levied by the Community Board including such additional costs, fees, charges and expenditures as the Community Associafion may incur or levy in the process of collecting from lhal Owner monies due and delinquent. Additional Charges shall include, bul not be Umited lo, the following: Aviara Collection Community - CC&Rs 21276-13 -1298005.13 ' 45 643§ 6.14.1 • Attorneys' Fees. Reasonable attorneys' fees and costs incurred inthe event an attorney(s) is employed to collect any Community Assessment or Individual Project Assessments, as the case may be, or sum due, whelher by suil or olherwise; 6.14.2 Late Charges. A late charge in an amount lo be fixed by the Community Board in accordance with Civil Code Seclion 1366, and any successor statutes or laws, to compensate the Community Association for addilionai collection costs incurred in the event any Community Assessment or Individual Project Assessments, as the case may be, or other sum is not paid when due or within any "grace" period established by law; 6.14.3 Costs of Suit. Costs of suit and court costs incurred as are allowed by the court; 6.14.4 Interest. Interest to the extent permitted by law; and 6.14.5 Other. Any such other addhional costs that the Community Association may incur in the process of collecting delinquent Assessments or sums. 6.15 Subordination of the Lien to First Mortgages. The lien of the Community Assessments provided for herein shall be subordinate to the lien of any recorded First Mortgage. The sale or transfer of any Lot shall not affect any Community Assessment lien. However, the sale or transfer of any such Lot that is subject lo any recorded First Mortgage pursuant to a decree of foreclosure, or a sale under power of sale under such First Mortgage shall extinguish the lien of such Community Assessments as to payments thereof which become due prior to such sale or transfer. Pursuant to the provisions hereof, liens shall be created on the interest of the purchaser at such foreclosure sale, lo secure all Communhy Assessments assessed hereunder to such purchaser, as an Qwner after the date of such foreclosure sale, which lien shall have the same effect and be enforced in the same manner as provided herein. The lien for unpaid Community Assessments shall be prior to any lien for any unpaid Individual Project Assessment. Nothing in this Section shall be constmed lo release any Owner from his or her personal obligation to pay for any Community Assessment levied pursuanl lo this Declaration. The Community Board may agree to subordinate the Uen of Community Assessments to the interests of the VA under any Cal-Vet fmancing contracts to the same extent as said liens are made subordinate lo liens of First Mortgages under this provision. ARTICLE 7 USE RESTRICTIONS 7.1 Individual Project Restrictions. Each Qwner shall comply with the terms of any Individual Project Declaration. The Community Association shall have the right to enforce any provisions of any Individual Project Declaration, to the exteni that the Community Associafion, upon a vote of a majority of the Communily Board, deems il necessary to protect the overall interest in Aviara Collection Community - CC&Rs 21276-13 -1298005.13 46 6439 the Covered Property, The Community Association shall not, however, in any event, be considered as having a duty or obligation to enforce any particular provision of any particular Individual Project Declaration. 7.2 Permitted Uses and Limitations. In addition to the Design Guidelines and development standards and requiremenls set forth in the Master Plan to which all development within the Individual Project must conform, the following use restrictions shall apply in the Covered Property. 7.2.1 Residential Use. Except for the use and development permitted in the Commercial Area as sel forth in the Masier Plan, the Aviara Premier Collection shall be limited to use for residential purposes. All Dwellings shall be known and described as DwelUngs and shall be used for no purpose other than residential purposes. No Dwelling shall be used or caused lo be used or allowed or authorized to be used in any way, directly or indirectly, for any business, commercial, manufacturing, mercantile, storage, vending or other non-residential purposes, except any Lots owned by Declarant or any Merchant Builder which may be used for model home sites, constmction offices, a design center, and display and sales office purposes during the constmction and sales period by Declarant or the Merchant Builders or any portion of Lots owned by the Apartment Qwner which may be used for rental and management offices, recreational facilities and constmction offices. The provisions of this Seclion shall not preclude professional or administrative occupations without extemal evidence Ihereof, for so long as such occupations (i) are conducted in conformance with all applicable governmental ordinances, (ii) are merely incidental to the use ofthe Dwelling as a residence, and (iii) the patrons or clientele of such professional or administrative occupation do not regulariy visit or conduct business on the Dwelling. In addhion to the foregoing, home child care centers shall be permitted only to the exteni that they are of a type regulated by the City and are operated in accordance with the Carlsbad Municipal Code and all other applicable legal and zoning requirements and licensing regulations, subjeci lo any provisions under applicable law wilh respect to restrictions on the operation of home child care centers, including, but not limited to, "family day care homes" under California Health and Safely Code Sections 1597.40 and 1596.78 and any successor statutes or laws. 7.2.2 Rental of Dwelling. An Owner shall be entitled to rent the Dwelling situated on the Owner's Lot, subject to the restrictions contained in this Declaration, including, but nol limiled lo, the Section above entitled "Residential Use." Any lease agreement shall be in wriiing, shall provide that the lease is subject to the Community Governing Documents and shall provide that any failure lo comply with any provisions of the Community Governing Documents shall be a default under the terms of the lease agreement. No Owner may lease such Owner's Lot or Improvements thereon for hotel, motel or transient purposes. Any lease which is either for a period of fewer than thirty (30) days or pursuant to which the lessor provides any services normally associated with a hotel shall be deemed to be for transient or hotel purposes. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 47 6440 7.3 Signs. All signs shall be in conformance whh the Architectural Guidelines. No sign or billboard of any kind shall be displayed to the public view on any Lot, Community Common Area or Individual Project Common Area with the following exceptions: (a) signs as may be required by legal proceedings or the prohibition of which is precluded by law; (b) signs as may be used by Declarant (or any Merchant Builder or Apartment Qwner) or ils sales agents in connection with the development of the Aviara Premier Collection and the sale and marketing ofthe Lots or Apartments or to designate facilities or future facilities wilhin any portion of the Covered Property; (c) signs on the Community Common Area which Declarant (or any Merchant Builder or Apartment Owner with Declarant's written consent) deems necessary for the construction of any Improvements and identification signs regarding financing and constmcfion; (d) signs on the Community Common Area as may be required for traffic control and regulation of open areas within the Aviara Premier Collecfion; and (e) identification signs on the Community Common Area as may be deemed appropriate by the Communily Board to designate facilifies or future facilities within the Covered Property. Declarant may permit Merchant Builders and the Apartment Owner to place such signs on the Community Common Area, as provided for herein, for the same purpose as Declarant deems appropriate, provided such signs have been approved by Declarant. Notwithstanding the foregoing, in accordance wilh the provisions of Califomia Civil Code Section 713 and any successor statutes or laws, an Qwner may display on the Owner's Lot not more than one (1) "for sale" or "'for lease" sign per Lot so long as such sign shall comply with any standards promulgated by the Community Board or Architectural Committee as lo the size, color, shape or other qualifications for permitted signs. 7.4 Antennae and Satellite Dishes. No television or radio poles, antennae, satellite dishes, or technological evolutions of the foregoing, olher than those originally installed by Declarant, any Merchant Builder, or the Apartment Owner, or approved by the Community Board or the Architectural Committee appointed by the Communily Board shall be constructed, erected or maintained on or within the Covered Property; provided, however, that the foregoing restriction shall not be construed to limit the installation or use of video or television antennas within the Covered Property, including a satellite dish (collectively, "Antenna"), except as otherwise prohibited or restricted by law, lhat is of a size and type consistent wilh the provisions of Califomia Civil Code Section 1376 and any successor statutes or laws, so long as the following requirements are satisfied: (a) the Owner has submitted an application and notice lo the Community Board prior to the Aviara Collection Community - CC&Rs 21276-13 -1298005.13 48 6441 installation of the Antenna as provided in the Article hereof entitled '"Architectural Control"; and (b) the Qwner has obtained the approval of the Community Board for the installation of the Antenna, The application for approval of an Antenna shall be processed by the Community Board in the same manner as any olher architectural modification within the Covered Property, Notwithstanding the foregoing, the Community Board shall not impose or enforce any restrictions on Antennas that are inconsistent with the provisions of Section 207 of the Telecommunications Act of 1996 (47 U.S.C. Seclion 303) or the regulations promulgated thereunder and any successor statutes or laws, 7.5 Fires. There shall be no buming fires within the Project except fires contained in fireplaces within individually owned Dwellings or Lots and barbeque fires in receptacles adequately designed for such purposes. 7.6 Grading and Drainage. There shall be no alteration of land forms in, removal of registration from or installation or construction of any structures or Improvements of any kind in or on the Community Common Area within the Project or any changes or alterations to drainage or drainage patters, erosion control, desiltation (and any equipment to monitor desiltation) or other improvements in the Covered Property or to the exterior appearance of any improvements within the Community Common Area without the prior written approval ofthe Architectural Committee and in all events in compliance with the Coastal Zone Restrictions and the City ofCarlsbad. 7.7 No Temporary Structures. Except for such temporary stmctures or items as may placed within the Project (i) by Declarant in connection with development, sale or leasing of Improvemenls within the Project, (ii) by a Merchant Builder in connection with the development, sale or leasing of Lots or Dwellings within an Individual Project in conformity with this Declaration and the Masier Plan, (iii) by the Apartment Owner in connection with the construction and leasing of an Apartment Building in conformity wilh this Declaration and the Master Plan, and (iv) as may be reasonably required in connection wilh the construction or reconstmction ofa Dwelling or olher Improvement on a single family Lot by an individual Owner pursuant to the approval of the Architectural Committee, no temporary buildings, trailers or structures shall be placed on any portion of the Covered Property. 7.8 Nuisance. No obnoxious, offensive or illegal activity shall be carried on upon any portion of the Project nor shall anything be done or placed within the Project which is or may become a nuisance or cause unreasonable disturbance or annoyance to olher persons within the Projeci or creates a risk which is uninsurable or beyond the extended coverage insurance customarily obtained for residenfial projects. Neither the landing of golf balls on Lots or streets (public or private) adjacent to or near the Golf Course nor any damage or injury which may arise from such activity and/or reasonably foreseeable from the proximity of golf course play adjacent to or near residenlial areas (easements for which are provided in Section 5.2.11 hereof), nor the use and enjoyment by the Owners and other persons of the Commercial Area hereof shall be deemed to be or constitute a violation of this Section. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 49 6442 7.9 Oil and Mineral Operations. No oil drilling, mining or similar activity shall be permitted upon or within any portion of the Covered Property. 7.10 Pets. No animals, insects, livestock, poultry, bees or reptiles of any kind shall be raised, bred, maintained or kept wilhin the Covered Property excepi that domestic dogs, cats and olher household pets may be kept within the Covered Property provided (i) no more than three (3) domestic pets are kept in each Dwelling Unit and (ii) they are not kept, bred, raised or maintained for any commercial purpose and are not in violation of any City ordinance. The owner ofany pet wilhin the Covered Property shall be responsible for any damage or injury caused by such pet. Notwithstanding the foregoing, the Association shall have the right to promulgate mles and regulations which impose additional limitations or restrictions regarding pets within the Covered Property. 7.11 Streets. No Owner of a Lol, Dwelling or olher ownership interest shall use or permit the use of any private street or public streets in a manner which destroys or damages such streets or streetlights located within or adjacent to any such streets or in a manner which obstmcts or unreasonably interferes with the normal and customary usage and enjoyment of such streets or improvemenls (except that nothing coniained herein shall limit the right to restrict access over private streets for the benefit of those Owners who have easements over such privale streets and their Invitees). Further, no Owner of a Lot, Dwelling or olher ownership interesl shall cause or permit any vehicle to be operated or parked within any streels within the Covered Property, except in accordance with the following rules and regulations: (a) No vehicle shall be operated in an unsafe manner; (b) No vehicle shall be parked in a manner which blocks a driveway approach lo any Lot or Dwelling; and (c) No vehicle shall be parked on any private street for a period in excess of 72 consecutive hours. Each Owner acknowledges that the Community Association has no control over or right to regulate the parking and/or operation of any public streets within the Aviara Community. 7.12 Private Sewer Easements. No Owner of a Lot or olher ownership interest shall cause or permit any structure, plant, material, tree, or thing to be placed within the private sewer easements which may damage or interfere wilh the operation and maintenance ofthe underground sewer facilities located within such easements. 7.13 Storm Drain Easements. No Owner of a Dwelling or other ownership interest shall cause or permil any structure, plant, material, tree or thing to be placed within the storm drainage Aviara Collection Community - CC&Rs 21276-13 -1298005.13 50 6443 easements which may damage or interfere with or change the direction which can reasonably be expected lo occur within such easements. 7.14 Power Tools. The operation of power tools and other similar equipment within the Covered Property shall be subjeci to such rules and regulations as the Community Board may adopt from lime to time including, without limitalion, rules with respect to permitted hours for the operation of same. 7.15 Roof Appurtenance. All roof appurtenances, including air conditioners, shall be architecturally integrated and concealed from view and the sound buffered from adjacent properties and streels pursuant lo the City's Planning Department Policy No. 80-6, to the satisfaction of the City's Directors ofPlanning and Building and shall conform with the Design Guidelines. 7.16 Trash Receptacle Area. Trash receptacle areas shall be enclosed by a six-foot masonry wall with gates pursuant to City standards. The location of such areas shall be approved by the Cily Planning Direcior and shall conform wilh the Design Guidelines. 7.17 Unsightly Items. All mbbish, debris and other unsightly materials ofany kind shall be regularly removed from the Covered Property and shall not be allowed to accumulate thereon. All refuse containers, and wood piles shall be prohibited unless obscured from view of adjoining Lots or Dwellings and the Common Area. No exierior clotheslines shall be permitted. 7.18 Vehicles. No trailer, camper, boat. Recreational Vehicle ("RV") or similar vehicle or equipmenl shall be stored, maintained or repaired within the Covered Property, nor on any driveway or parking area wilhin the Covered Property nor on any driveway on any Lot unless placed or maintained within an enclosed garage or otherwise screened from view in a manner approved by the Architectural Committee. No Owner and no guest, tenant, agent, licensee or employee of any Owner shall park, leave or abandon any vehicle within the Covered Property in such a manner as to impede or prevent ready ingress, egress and/or passage to or from public or private streets within the Covered Property. The use, storage and parking of all vehicles shall in addition be subject to such rules and regulations as may be adopted from time lo time by the Community Association. The Communily Association may own and/or conlract for the professional operation ofthe RV Site and parking and storage of recreational vehicles shall be limited to the RV Site. Nothing herein shall prevent the individual Owner of a Dwelling or tenant of an Apartment Unit from contracting directly wilh the operator of the RV Site for storage by such Owner or tenant of his or her recreational vehicles or similar vehicle. Each Owner or tenant using any such RV Site shall indemnify and hold harmless the Declarant and the Community Association and their respective directors, officers, partners, agents, employees and representatives from and against any and all damage, loss or injury to persons or property arising out of the ownership, use and./or storage of an recreational vehicles or similar vehicles wilhin the Recreafional Vehicle Site. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 ^1 6444 7.19 Protection of View Corridors. Those areas shown in the Master Plan and/or in the City's Scenic Corridor Guidelines as "View Corridors," "View Preservafion Areas" or areas requiring the selection and placement of trees and other landscaping to preserve views shall be restricted for such use and the obligation for the maintenance and preservation of such areas shall be performed and enforced by the Community Associafion (and/or by the Individual Project Associations or the Merchant Builders or the Apartment Qwner) as provided in the Master Plan. 7.20 Basketball Hoops and Other Fixed Sports Apparatus. No basketball standards or fixed sports or play apparatus shall be installed or attached to the front of any Dwelling or garage or be erected in any yard without the prior approval of the Architectural Committee. The Community Association Rules and Design Guidelines may establish rules regulating any portable basketball apparatus. 7.21 Garages. No garage doors shall be permitted to remain open except for a lemporary purpose, and the Community Board may adopt rules for the regulation of the opening of garage doors, including the assessment of charges lo Owners who violate such mles. Any charges so assessed shall be Enforcement Assessments. No pad or space adjacent to the garage, or any other portion of a Lot, other than a driveway, shall be used for the parking of any vehicles whatsoever. All garages shall be enclosed and have doors for the entrance of vehicles. Garages shall be used for the parking of vehicles only, and garages shall not be used for storage or other purposes, except to the extent such storage or other purposes do not preclude the parking of the number of vehicles inlended lo be coniained in such garage. 7.22 No Obstructions. There shall be no obstmction of any Community Common Area excepi as permitted herein or as provided by the Community Goveming Documents. Nothing shall be placed or stored in the Community Common Area, excepi as allowed by the express permission of the Communily Board. 7.23 Compliance With Laws, Etc. No Owner shall permh anything to be done or kept in a Lol lhal violates any applicable laws, ordinances, statutes, rules or regulafions of any Governmental Agency. 7.24 No Subdivision of Lots. No Lot shall be further 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 Architectural Committee. The Owners, other lhan Declarant, Merchant Builders and the Apartment Owner (who shall not be required to obtain such preapproval), of two (2) or more contiguous Lots may apply to the Architectural Committee for permission to use such Lots as the site for a single Dwelling. 7.25 Indemnification. Each Owner shall be liable to the Community Association and remaining Owners for any damage to the Community Common Area that may be sustained by reason of the negligence or wilful misconduct ofthat Owner or any persons whose presence within Aviara Collection Community - CC&Rs 21276-13 -1298005,13 52 644 5 the Covered Property is approved by or is at the request of such Owner. Each Qwner ofa Dwelling shall be responsible to the Community Association for the conduct and behavior of guests and children using, residing with or visiting such owner and/or for any injury or damage to persons or property caused by such guest or children. Each Owner, by acceptance of his or her deed, agrees for such Owner, to indemnify each and every other Owner and to hold each Owner harmless from, and defend such Owner against, any claim of any person for personal injury or property damage caused by the negligence of wilful misconduct of such Owner or any persons whose presence within the Covered Property is approved by or is at the request of such Owner, unless the injury or damage occurred by reason of the negligence or wilful misconduct of any other Qwner or the Community Association. Upon demand by the Communily Association, each Owner shall be responsible for the paymeni of any deductible amount payable under the Community Association's insurance policy as a result ofany claims arising from the negligence or wilful misconduct of such Owner or any persons whose presence within the Covered Property is approved by or is at the request of such Owner. 7.26 Exemption. The use restrictions and other provisions set forth in this Article 7 shall not apply to any Lots owned by Declarant or a Merchant Builder or to the Commercial Area. The use restrictions and other provisions set forth in this Article 7 shall not apply an Apartment Building on a Lol owned by the Apartment Qwner until a Certificate of Occupancy has been issued for that Apartment Building. ARTICLE 8 INSTALLATION, REPAIR AND MAINTENANCE 8.1 Maintenance and Repair by Community Association. The Community Association shall be responsible for the maintenance and repair of all of the Community Common Area within the Covered Property, together wilh such other improvements, landscaping, slopes and features of the Covered Property, the maintenance and repair of which has been imposed upon the Communily Association by the Master Plan, the LFMP, the Master Maintenance Plan and the conditions of approval of the Final Maps recorded in connection with the development and use of the Covered Property. Without limifing the generality of the foregoing nor the description of the powers and duties of the Community Association, the Community Association shall be required to accomplish each of the obligations described below. 8.1.1 Community Common Area. The Community Associafion shall clean, maintain and repair the Aviara Premier Collection Entries (except to the extent such entry is being maintained by the Aviara Master Associalion pursuanl to Section 5.1 of the Settlement Agreement), all slopes, parkways, signage, medians, lighting, landscaping and irrigation improvements located on Communily Common Areas, the Trail System, RV Site and any other improvements adjacent to any public streets within the Covered Property the responsibility for the maintenance of v/hich slopes, parkways, signage, medians, lighting, landscaping and irtigafion improvements and slopes ihereof has been imposed upon the Community Association by the terms and provisions of the Aviara Collection Community - CC&Rs 21276-13 -1298005,13 53 6446 Master Plan, the LFM.P or any conditions of approval ofany Final Maps recorded in connection with the development of the Covered Property or any portion Ihereof; 8.1.2 Utilities. The Community Association shall maintain and/or coordinate with any utility or similar service company as may be required in connection with the installation, maintenance, repair or relocation of all gas lines, electric lines, utility lines and all easements therefor and all connections thereof located in or serving the Community Common Area, the obligation for such maintenance and coordination has not been assumed, undertaken or imposed upon any Builder of any Individual Projeci or the Apartment Owner as a part of the land use or development approvals for such Individual Project or the Apartment Project, as applicable, or pursuanl to the provisions of this Declaration; 8.1.3 Open Space and Other Areas. The Community Association shall (except where situated wilhin Individual Projects sold or transferred to Merchant Builders, and therefore the obligation of such Merchant Builder and/or Individual Project Association formed in connection with such Individual Project), maintain and repair all slopes (whether manufactured or natural), all Coaslai Resource Areas and all landscaping and open space, fences, irrigation and erosion control improvements and perform all olher work, including without limitation, bmsh clearance and pruning within any View Preservation Areas, as well as wilhin any Fire Suppression Zones as required by the Fire Suppression Landscape Guidelines, maintain and repair the Water Conservation Improvements situated within the Covered Property (immediately down stream from any portion Ihereof owned and/or maintained by the City, the County or any other local govemmental agency regulating the use of reclaimed water or such improvemenls), maintain and repair any and all concrete terrace drains and other drainage, erosion control improvements, catch basins, siltation improvements (including any equipment and/or monitoring program related thereto) and all trails, paths, overlook areas, signage, benches or other improvements or structures at locations within the Covered Property as may be required by the Cily, the Counly, or any other Governmental Agency in order to implement and comply wilh the Coaslai Zone Restrictions imposed upon the use or developmenl of the Covered Property by the Califomia Coastal Commission. 8.1.4 Fencing. The Communily Association shall maintain, repair and replace the exterior of all perimeter fencing shown on Exhibit "D" or designated as the responsibility of the Communily Association to maintain in the Fencing Plan or in a Supplementary Declaration. The Community Association shall also have the obligation lo maintain, repair and replace all wrought iron designated as part of the Community Association's maintenance responsibilities in the Fencing Plan. 8.2 Maintenance and Repair of Individual Projects. Except as specifically set forth in the Masier Maintenance Plan and as olherwise imposed on the Community Association by Section 8.1 above, the maintenance and repair of all Individual Project Common Areas, Coastal Resources Areas located within Individual Projecis, slopes, landscaping, trails, drainage, erosion conirol and other improvements (including withoui limitalion extension ofor connections to Water Aviara Collection Community - CC&Rs 21276-13 -1298005,13 54 6447 Conservation Improvemenls permitted by the City, the County and/or other Govemmental Agencies having jurisdiction over same) which are located wilhin the boundaries of an Individual Project, shall be the responsibility of the Merchant Builder of such Individual Project and thereafter the Individual Project Association formed in connection with such Individual Project and which obligations shall be described wilh particularity in the Individual Project Declaration for each such Individual Project. 8.3 Maintenance District. Easements are hereby reserved for and established in favor ofthe Declarant, together with the right to grant the same to the Community Association, Merchant Builders, the Apartment Owner or others in, over and across all those portions of the Covered Property subjeci to use as a part of the Trail System. The Community Association shall have full power and authority, wilh the cooperation of the City, lo establish or create a District for the perpetual maintenance of the Trail System or any other portions of the Community Common Area which are required to be made available for public use. 8.4 Coastal Resource Areas. The Community Association shall maintain all Coastal Resource Areas located on the Communily Common Area. 8.5 Repair and Maintenance by Owners. Except for the obligations ofthe Community Association to repair and maintain as may be provided in this Declaration, and except for the mainlenance obligations of the Individual Projeci Associations with respect to Lots and Individual Projeci Common Area within a Individual Project or the obligations assumed by a special assessment district, every Owner, including an Apartment Owner, shall perform the maintenance set forth below. 8.5.1 Exterior of Dwelling. Each Qwner shall maintain the exterior of the Owner's DwelUng and/or other Improvements on such Owner's Lot in good condition and repair and in accordance with the Community Governing Documents and all requirements of the City. 8.5.2 Landscaping. Each Owner shall install and thereafter maintain in attractive and harmonious condition front yard landscaping in accordance with the standards for maintenance set forth in the Section below entitled "Standards for Maintenance and Repair" and in accordance with all requiremenls of the City. 8.5.3 Repair Damage. In the event the Community Board shall determine that the Lot perimeter walls and fences, if any, have been damaged from within the Lot, notwithstanding that such damage may be to the Lot perimeter walls and fences that are to be maintained by the Community Association pursuant to the terms of this Article, the Owner of the Lot shall be responsible for, at the election of the Community Board, (a) repairing such damage or (b) reimbursing the Community Association for costs incurred to repair such damage, all in a timely manner and in accordance wilh such rules as the Community Board or Architectural Committee shall from time to lime adopt. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 55 6448 8.5.4 Interior Walls or Fences. The Owner of each Lot on which a Perimeter Wall is located the exterior of which is being maintained by the Community Association and, shown on the Fencing Plan shall maintain, in a good condition of maintenance and repair, the interior of such Perimeter Fence, except for any wrought iron designated as the responsibility of the Communily Association on the Fencing Plan. 8.6 Standards for Maintenance and Repair. 8.6.1 Exterior of Dwellings and Other Improvements. Except for the Apartment Area, maintenance of the exierior of Dwellings and any other Improvements situated on any Lot including, but not limited lo, the walls, fences and roofs, shall be maintained in a good condition of maintenance and repair and in accordance wilh the Architectural Guidelines and, if required by the Architectural Guidelines, only after approval of the Architectural Committee. The Apartment Buildings and any other Improvements locaied on the Apartment Area shall not be subject to the Architectural Guidelines but shall be maintained in good condition and repair. 8.6.2 Landscaping. Except to the e.xtent that an Individual Project Declaration requires such mainlenance to be accomplished by the Individual Project Association and unless the Merchant Builder Qwner installs landscaping on a particular Lot, all portions of a Lot that are improved with a Dwelling, except for Lots owned by Declarant, a Merchant Builder or the Apartment Owner, shall be landscaped by the Owner thereof in accordance with the Community Governing Documents promulgated by the Community Board on or before a date which is six (6) months from the original conveyance of such Lol by Declarant or a Merchant Builder lo an Owner under authority of a Public Report. Thereafter, such landscaping shall be maintained by the Owner in a clean, safe and attractive condition according to any mles promulgated by the Community Board and any Individual Project Association. Any Individual Project Association shall mainlain any landscaped areas that it owns or that are owned in common by its members in a clean, safe and attractive condiiion according to the Communily Goveming Documents. The foregoing shall not apply lo landscaping installed by the Apartment Owner; provided, however, such landscaping shall be maintained in good condition and repair. 8.6.3 Right of Community Association to Maintain and InstaU. In the event any Qwner fails lo maintain the exterior of the Owner's Dwel ling and/or other Improvements on such Owner's Lot or Apartment Building or the walls, fences and roofs of his or her Dwelling or Apartment Building, or to install and thereafter maintain landscaping on the Owner's Lot or any other Improvements on the Owner's Lot in accordance with the requirements of this Article, the Community Association may cause such maintenance and installation lo be accompUshed in accordance with the procedure set forth in the Community Bylaws. 8.7 Private Street Maintenance to City Standards. The pavemenl, sidewalks and streetlights located within the Private Streets shall be maintained in a safe, functional and attractive Aviara Collection Community - CC&Rs 21276-13 -1298005,13 56 6449 condition that is consistent with the standards adhered to by the City for the maintenance of public streets, public sidewalks and public streetlights. 8.8 Storm Drain Maintenance. The surface ofthe storm drainage easements shown on Final Maps for the Individual Project and all underground slorm drains and storm drainage disposal facilities located within said storm drainage easements shall be maintained (by the Community Association where locaied within Community Common Area, by the Merchant Builder and thereafter the Individual Project Association of each Individual Project where located within an Individual Project and by the Apartment Qwner where locaied within the Apartment Area) free of any obstructions which would interfere with the normal collection, passage and disposal of storm waters accumulating within or flowing through the master plan area. 8.9 Sewer Facilities Maintenance. Sewer mains and other sewer facilities located wilhin lhe private sewer easements shown on any Final Maps shall be maintained (by the Community Association if located wilhin the Community Common Area, by the Merchant Builder and thereafter the Individual Project Association if located within an Individual Project and by the Apartment Owner where located within the Apartment Area) free of any obstmctions which interfere with the normal passage of sewage lo the public sewer system and shall also be maintained free of unreasonable amounts of inflow or inflltration; provided, however, that each Owner of a Dwelling shall be individually responsible for maintaining any sewer lateral which connects the sewer system serving a building or struciure on his or her Lol to a sewer main locaied within the private sewer easements even though a portion of such sewer lateral is locaied within the boundaries of the private sewer easements. ARTICLE 9 ARCHITECTURAL CONTROL 9.1 Scope. Except as otherwise provided in this Declaration, there shall be no excavation, constmction, building, landscaping, development or olher Improvements in the Covered Property, including any change or alteration or exterior addition to any Improvements situated within the Covered Property without compliance with this Article. The provisions of this Article shall preempt and supersede any inconsistent provision of any rules or restrictions of any Individual Project Association to the extent that any Individual Project Declaration or any other governing documents for a Individual Projeci are in conflict with the provisions ofthis Declaration. 9.2 Exemptions. The provisions of this Article shall not apply to Declarant, the Merchant Builders or the Apartment Owner or any Improvements erected or installed by Declarant, the Merchant Builders or the Apartment Owner on the Covered Property. 9.3 Appointment of Architectural Committee. There shall be one (1) Architectural Committee for the Covered Property. The Architectural Committee shall consist of not less than Aviara Collection Community - CC&Rs 21276-13 -1298005.13 57 6450 three (3) persons who shall initially be appointed by the Declarant for aperiod of one (1) year after the original issuance ofthe Public Report for the first Phase; provided, however, that the number of members ofthe Architectural Committee may be increased by the Board to a greaier odd number of members. Members of the Archhectural Committee appointed by the Declarant need not be Members of the Communily Association. After the expiration of such initial one year period, a majority of the members of the Architectural Committee may be appointed and replaced by Declarant until the earlier lo occur of (a) the date that five hundred thirteen (513) Dwellings, representing ninety percent (90%) ofthe Dwellings proposed lo be developed for the Aviara Premier Collection, have been conveyed to Class A Members; or (b) on the fifth (5th) anniversary following the most recent conveyance to a Class A Member of the first Lot in any Phase under authority ofa Public Report. Thereafter, all members of the Committee shall be appointed or replaced by the Community Board. 9.3.1 Resignations. Any member or ahemate meinber of the Architectural Committee may at any lime resign from the Architectural Committee upon written nofice delivered to the Community Board and/or Declarant, to the extent that Declarant then has the right to appoint a majority of the Architectural Committee members. 9.3.2 Vacancies. Vacancies on an Architectural Committee, however caused, shall be filled by the Declarant or the Community Board, based on which such party appointed the Architectural Committee member whose position was vacated. 9.4 Duties. It shall be the duly ofthe Architectural Committee lo consider and act upon such proposals or plans submiited to it pursuant to the terms hereof, to administer any Architectural Guidelines promulgated by the Community Board, to perform other dulies delegated to it by the Community Association, lo ensure lhat any Improvemenls constructed within the Covered Property confonn to plans approved by the Architectural Committee, and to carry out all olher duties imposed upon il by the Community Goveming Documents. The Architectural Committee may hire such Ai'chitectural Consultants as are necessary to perform certain services in furtherance of the duties of the Architectural Committee. The Architectural Committee raay establish reasonable mles and may assess a fee for the submission of plans in connection with the review of Plans and Specifications (as defined in Section 9.9.1 below) including, without limitalion, the number of sets of plans to be submitted. The Architectural Committee, in its own name or on behalf of the Community Association, may exercise all available legal and equitable remedies to prevent or remove any unauthorized and unapproved construction of Improvements within the Covered Property or any portion thereof Notwithstanding the foregoing, the Architectural Committee may delegate its plan review responsibilities to one or more members of the Architectural Committee or to an Architectural Consultant hired by the Architectural Committee. Upon such delegation, the approval or disapproval of Plans and Specifications by such persons shall be equivalent to approval or disapproval by the enfire Architectural Committee. Unless any such mles regarding submission of plans are complied wilh, such Plans and Specifications shall be deemed nol submitted. Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 58 6451 9.5 Address. The address of the Archhectural Committee shall be the principal office of the Community Associafion or any olher place as may be designated by the Community Board pursuant to the Communily Bylaws. Such address shall be the place for the submittal of Plans and specifications and the place where the current Architectural Guidelines, if any, shall be kept. 9.6 Fees. The Community Board may establish fees for the review and approval of any Plans and Specificalions initially submiited and/or resubmitted by an Owner. A schedule of such fees shall be included in the Architectural Guidelines. 9.7 Effect of Architectural Committee. The establishment of the Architectural Committee and the procedures herein for architectural approval shall not be construed as changing any rights or restrictions upon Owners to maintain, repair, alter, modify or otherwise have control over the Owners' respective Lot(s) and the Dwelling(s) and other Improvements situated thereon, as may otherwise be specified in the Community Governing Documents. 9.8 Meetings. The Architectural Committee shall meet from time to time as necessary to properly perform its duties hereunder. Unless olherwise provided for herein, the vote or written consent of a majority ofthe members of the Architectural Committee shall constitute an act by the Architectural Committee unless the unanimous decision of ils members is otherwise required by the Community Governing Documents. The members of the Architectural Committee shall be entified lo reimbursement for reasonable expenses incurred by them in the performance ofany Architectural Committee function, but shall otherwise receive no compensation for services rendered. 9.9 Approval and Conformitv of Plans. The Community Board shall, from time to time, adopt and promulgate Architectural Guidelines to be administered through the Architectural Committee. The Architectural Guidelines shall include, among other things, those restrictions and limitaiions upon the Owners set forth below. 9.9.1 Limitation on Improvements. If the Architectural Guidelines so provide, no Improvemenls shall be commenced, erected or maintained upon the Covered Property, nor shall there be any addition to or change in the exterior ofany Dwelling, stmcture or other Improvement, unless plans and specifications therefor, showing the nature, design, kind, shape, height, width, color, material and location and any other information prescribed by the Architectural Guidelines (collectively, "'Plans and Specifications") have been submitted to and approved by the Architectural Committee in accordance with the procedures set forth in the Architectural Guidelines. 9.9.2 Time Limitations. The Architectural Guidelines may set forth time Umitations for the complefion of any Improvements for which approval is required pursuant to the Architectural Guidelines. 9.9.3 Conformity of Plans and Specifications. The Architectural Guidelines may require the conformity of completed Improvements lo Plans and Specificalions approved by the Aviara Collection Community - CC&Rs 21276-13 -1298005.13 59 6452 Architectural Committee and to the Architectural Guidelines. The Architectural Committee may, but shall not be required to, record a notice of noncompletion or noncompliance of any completed Improvements wilh the Architectural Guidelines, identifying the violating Lot and its Owner and specifying the reason for the notice execuled by the Architectural Committee, in the Office of the County Recorder of San Diego County, California, and provide such notice to such Owner after the expiration of the time limitations established pursuant to the Section above entitled "Time Limitations" or institute legal proceedings lo enforce compliance or completion ofthe Improvements approved by the Architectural Committee. 9.9.4 Other Limitations. The Architectural Guidelines may include such other limitaiions and restrictions as the Communily Board in its reasonable discretion shall adopt, including, wilhoul limitation, regulations of the following: constmction, reconstruction, exierior addition, change or alleration to or the maintenance of any building, stmcture, wall or fence, including, without limitation, the nature, kind, shape, height, materials, exterior color and surface and location of any Dwelling, or other Improvemenls of any kind. 9.9.5 Approval of Solar Energy Systems. Any Owner proposing to install or use a solar energy system, as defined in Califomia Civil Code Section 801.5, shall be subject to the same review and approval process as any owner proposing to constmct any Improvements or other actions requiring the approval of the Architectural Committee pursuant lo this Declaration. However, only reasonable restrictions on the installation and use of a solar energy system shall be permitted. Reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or its sufficiency or specified performance, or that allow for an alternative system of comparable costs, efficiency, and energy conservafion benefits. 9.10 Time Period for Review of Plans and Specifications. In the event the Architectural Committee fails to approve or disapprove such Plans and Specifications within forty-five (45) days after the same have been duly submitled in accordance with any mles regarding such submission adopted by the Archhectural Committee, the Owner requesting said approval may submit a written notice to the Architectural Committee advising the Architectural Committee of its failure to act. If the Architectural Committee fails to approve or disapprove any such Plans and Specifications within fifteen (15) days after the receipt of said notice from such Qwner, said Plans and Specifications shall be deemed approved. 9.11 AppeaL In the event Plans and Specifications submitted to the Architectural Committee are disapproved thereby, the Qwner making such submission may appeal in writing to the Community Board. The written request musl be received by the Community Board not more than thirty (30) days following the fmal decision of the Architectural Committee. The Community Board shall submit such request lo the Architectural Committee for review, whose written recommendations will be submitted to the Community Board. Within forty-five (45) days following receipt of the request for appeal, the Communily Board shall render its written decision. If the Communily Board fails to render a decision within said forty-five (45) day period, the appealing Aviara Collection Community - CC&Rs 21276-13 -1298005.13 60 6453 Owner shall provide awritten notice with respect thereto to the Community Board. If the Board fails to approve or disapprove any such Plans and Specifications wilhin fifteen (15) days after the receipt ofthat notice from such Owner, said Plans and Specifications shall be deemed approved. 9.12 Waiver. The approval by the Architectural Committee of any Plans and Specifications for any work done or proposed, or for any other matter requiring the approval of the Architectural Committee under this Declaration, shall not be deemed to constitute a waiver of any right to withhold approval of any similar plan, drawing, specification or matter subsequently submitted for approval. 9.13 Estoppel Certificate. Wilhin forty-five (45) days after written demand is delivered to the Architectural Committee by any Owner, and upon payment to the Community Association of a reasonable fee (as fixed from time lo time by the Community Association), the Architectural Committee shall record an estoppel certificate, executed by any two (2) of its members, certifying (with respect lo any Lot of said Owner) lhat as of the date thereof either: (a) all Improvemenls made and other work done upon or wilhin said Lol comply with the provisions of this Article, or (b) such Improvements or work do not so comply, in which event the certificate shall also identify the non-complying Improvemenls or work and set forth wilh particularity the basis of such non-compliance. Any purchaser from the Owner, or from anyone deriving any interesl in said Lol through such Owner, shall be entitled to rely on the certificate with respect to the matters therein sel forth, such matters being conclusive as belween the Community Associalion, Declarant and all Owners and such persons deriving any interesl Ihrough them. 9.14 Liability. Neither the Architectural Committee nor any member thereof shall be Uable to the Community Associalion or lo any Owner for any damage, loss or prejudice suffered or claimed on account of (a) the approval or disapproval or any Plans and Specificalions, whelher or not defective, (b) the construction or performance of any work, whether or not pursuanl lo approved Plans and Specifications, (c) the development of any property within the Covered Property, or (d) the execution and filing of an estoppel certificate pursuant to the Section above entitled "Estoppel Certificate," whether or not the facts therein are correct, provided that such member has acted in good faith on the basis of such information as may be possessed by such member. Any Plans and Specifications submiited to the Architectural Committee are not approved by the Architectural Committee for engineering design, and by approving such Plans and Specifications neither the Architectural Committee, the members thereof, the Community Association, the Community Board, the Declarant nor any Merchant Builder assumes liability therefor or for any defect in any slruclure construcied from such Plans and Specifications. Without in any way limiting the generality of the foregoing, the Architectural Committee, or any member Ihereof, may, but is not required to, consult with or hear the views of any member of the Community Association with respect to any Plans and Specifications or any olher proposal submiited lo such Architectural Committee. 9.15 Governmental Requirements. The applicafion to and the review and approval by an Architectural Committee of any proposals. Plans and Specifications, or other submittals shall in Aviara Collection Conimunity - CC&Rs 21276-13 -1298005 13 61 64 no way be deemed to be in satisfaction of or in compliance with any building permit process or any other governmental requiremenls, the responsibility for which shall be solely with the respective Owner. In the event there is any conflict between the requirements or actions of the Architectural Committee and the mandatory regulations or ordinances of any Governmental Agency relating to the Covered Property, the government regulation or ordinance, lo the extent that such regulations and ordinances are more restrictive, shail control, and the Architectural Committee shall modify its requiremenls or actions to conform to the government regulation or ordinance; provided, however, lhal if the governmental rules or regulations are less restrictive, the provisions of the Community Goveming Documents shall nonetheless apply. The applicalion by an Owner for review and approval by the Architectural Committee of any Plans and Specifications or other submittals by such Owner shall in no way be deemed to be satisfaction or compliance with any applicable statute or law, or governmental rule or regulation or public utility requirement (hereinafter collectively referred lo as "Additional Requirements"); provided, however, if the additional requirements are less restrictive than the provisions of the Communily Governing Documents, the provisions of the Community Governing Documents shall nonetheless apply, 9.16 Architectural Guidelines. The Community Board shall promulgate Architectural GuideUnes for use by the Architectural Committee. The failure ofthe Community Board to include any particular siandards or guidelines in the Architectural Guidelines shall not limit the right of the Architectural Committee to enforce standards to protect the overall theme and development of the Covered Property. 9.17 Interpretation. All questions of interpretation or construction ofany of the terms or conditions herein shall be resolved by the Architectural Committee, or if upon appeal, by the Community Board and ils decision shall be final, binding and conclusive on all of the parties affected unless such decision is appealed, in which case the decision ofthe Community Board shall be fmal, binding and conclusive on all of the parties affected. 9.18 Amendments. Notwithstanding the Article hereof entitled "Amendments," no amendment or rescission of this Article may be had, nor shall Declarant, or any Merchant Builder or Apartment Owner, be prohibiied from completing the construction of the Covered Property for so long as Declarant or a Merchant Builder owns, or is the holder of a mortgage or deed of trust against any portion of the Covered Property, without the (i) written consent of Declarant, and (ii) the recording of such consent in the Office ofthe Counly Recorder. ARTICLE 10 DEVELOPMENT RIGHTS 10.1 Limitations of Restrictions. Declarant, the Merchant Builders and the Apartment Owner are undertaking the work of developing Lots and olher Improvements within the Covered Properly. The complelion of the developmenl work and the markefing and sale, rental and other Aviara Collection Communily - CC&Rs 21276-13 -1298005.13 62 54 6455 disposition of the Lots is essential to the establishment and welfare of Aviara Premier Collection as a residential community. In order that the work may be completed and the Covered Property be established as a fully occupied residential community as rapidly as possible, nothing in this Declaration shall be interpreted to deny Declarant or, to the extent provided below, the Merchant Builders and the Apartment Owner, the rights set forth in this Article. 10.2 Rights of Access and Completion of Construction. Declarant, the Merchant Builders and the Apartment Owner, and their contractors and subcontractors shall have the rights set forth below. 10.2.1 Access. Declarant, the Merchant Builders, the Apartment Owner and their conlractors and subcontractors shall have the right lo obtain reasonable access over and across the Community Common Area of the Covered Property or do within any Lot owned by it whatever is reasonably necessary or advisable in connection with the complelion of the Aviara Premier Collection and the maintenance thereof 10.2.2 Construct Improvements. Declarant, and to the extent approved in writing by the Declarant, the Merchant Builders and Apartment Owner, and their contractors and subcontractors shall have the right to erect, construct and maintain on the Community Coinmon Area of the Covered Property or within any Lot owned by h such stmctures or Improvements, including, but not limiled to, sales offices, rental offices, flags and signs, as may be reasonably necessary for the conduct of its business lo complele the work, establish the Aviara Premier Collection as a residential commumty and dispose of the Aviara Premier Collection in parcels by sale, lease or otherwise and to perform or complele any work to iinprovements required for Declarant, the Merchant Builders and the Apartment Owner to obtain a release ofany bonds posted by Declarant, the Merchant Builders or the Apartment Owner with the Cily or the Community Associafion. Each Owner acknowledges lhat the marketing and leasing of the Apartment Units shall continue for the Apartment Buildings for so long as such Apartment Building are being offered for rental. 10.2.3 Grant Easements. Declarant, and the Community Association, shall have the right to establish and/or grant over and across said Community Common Area, such easements and rights of way on, over, under or across all or any part thereof to or for the benefit ofthe State of California, the Cily or County or any olher Government Agency or public organization, or any public utility entity or cable television provider, for the purpose of constructing, erecting, operating and maintaining facilities and Improvemenls thereon, therein or thereunder at that time or at any lime in the future, including: (i) poles, wires and conduits for transmission of electricity, providing telephone service and cable television service to the Aviara Premier Collection and for the necessary attachments in connection therewith; and (ii) public and private sewers, sewage disposal systems, slorm water drains, land drains and pipes, water systems, sprinkling systems, water, heafing and gas Unes or pipes and any and all equipment in connection therewith. The Community Common Area shall be subject lo any dedication stated in a Subdivision Map for any portion of the Aviara Premier Collection of an easement for public use for inslallation, maintenance and operation of facilities for Aviara Collection Community - CC&Rs 21276-13 -1298005.13 6j 64.5e public utilities over aU ofthe Communily Common Area. Said public utilities easement shall inure and run to all franchised utility companies and lo the City or County and shall include the righl of ingress and egress over the Community Common Area by vehicles of the City or Counly and such utility companies to properly instaU, maintain, repair, replace and otherwise service such utility facilities. The grant of said public utility easement shall not be interpreted lo imply any obligation or responsibility of any such utility company or the City or County for maintenance or operation of any of the Communily Common Area or the facilities located thereon or the repair, replacement or reconstruction thereof except as occasioned by such utility companies or City or County of the utility facilities for which they are responsible. The Community Common Area shall also be subject to any easements granted by the Declarant to any public or private entity for cellular, cable or other similar transmission lines. The City and County furthermore is granted an easement across the Community Common Area and any privale streels for ingress and egress for use by emergency vehicles of the Cily or County. 10.2.4 Exemptions. Nothing in the Community Goveming Documents limits and the Owners or the Community Association shall nol interfere wilh the right of Declarant or any Merchant Builder to subdivide and resubdivide any portion of the Covered Property or with the right of Declarant, Merchant Builders and Apartment Owner, either directly or through their respective agents and representatives, to sell, resell, rent or re-rent any portion of the Covered Property, or the right of Declarant or a Merchant Builder or the Apartment Owner lo complete excavation, grading, construction of Improvemenls or other development activities to and on any portion of the Covered Property owned by Declarant or a Merchant Builder or the Apartment Qwner, as applicable, or to alter the foregoing and the constmction plans and designs, or to construct such additional Improvements as Declarant or a Merchant Builder or the Apartment Qwner deems advisable in the course of developing the Covered Property, so long as any Lot in the Covered Property or any portion of the Community Common Area is owned by Declarant or a Merchant Builder or, the Apartment Owner. These rights include, but are not limited lo, canying on by Declarant, the Merchant Builders, the Apartment Owner and their respective agents and representatives of such grading work as may be approved by the Governmental Agency having jurisdiction, and erecting, constructing and maintaining on the Covered Property owned by such party such structures, signs and displays as are reasonably necessary for the conduct of the business of completing the work and disposing of the Covered Property and the Community Common Area by sale, lease or otherwise. Each Owner, by accepting a deed lo a Lot, acknowledges that any constmction or installation by Declarant, a Merchant Builder or the Apartment Owner may impair the view ofsuch Owner, and each Owner consents to such impairment. This Declaration does not limit the right of Declarant or, if approved in writing by Declarant, a Merchant Builder, at any time prior to acquisition of title to a Lot by a purchaser from Declarant or a Merchant Builder, to estabUsh on lhat Lot, or the right of an Apartment Owner to establish in that Apartment Owner's Lot, additional licenses, easements, reservations and rights-of-way to itself, lo utility companies, or to others as reasonably necessary to the proper development and disposal of the Covered Property and Community Common Area. Declarant and, if approved in wriiing by Aviara Collection Community - CC&Rs 21276-13 -1298005.13 64 645? Declarant, the Merchant Builders and the Apartment Owner may use any and all portions of the Community Common Area for access to the sales and leasing facilities of Declarant, the Merchant Builders and the Apartment Owner. Declarant and, if approved in writing by Declarant, Merchant Builders and the Apartment Qwner may use any structures or vehicles owned, respectively, by Declarant or Merchant Builders in the Covered Property as model home complexes, or real estate sales or leasing offices; provided that such uses by Declarant or Merchant Builder withm the Covered Property shall terminate on the last close of escrow for the sale of a Lot in Aviara to a member of the homebuying public, at which time Declarant or Merchant Builders, as the case may be, shall restore their respective structures to their previous appearance. All or any portion of the righls of Declarant or a Merchant Builder or the Apartment Owner, as applicable, hereunder and elsewhere in this Declaration may be assigned by Declarant or (with Declarant's prior written consent) such Merchant Builder or Apartment Owner, as applicable, to any successor in interest to any portion of Declarant's or Merchant Builder's or Apartment Owner's interest in any portion ofthe Covered Property or the Community Common Area (including without limitation, to any Merchant Builder) by an express written assignmenl which specifies the rights of Declarant or such Merchant Builder or such Apartment Owner so assigned. 10.3 Size and Appearance of the Covered Property. Declarant shall not be prevented from increasing or decreasing the number of Lots lhat may be annexed to the Covered Property or from changing the exterior appearance of Community Common Area stmctures, the landscaping or any olher matter directly or indirectly connected with the Covered Property olher than the Apartment Area in any manner deemed desirable by Declarant, if Declarant obtains govemmental consents required by law. 10.4 Marketing Rights. Subject to the limitaiions of this Declaration, Declarant, the Merchant Builders and the Apartment Owner shall have the right to: (i) maintain model homes, sales offices, leasing offices storage areas and related facilities in any unsold Lots or a portion of the Apartment Building or Communily Common Area within lhe Covered Property as are necessary or reasonable, for the sale or disposition of the Lots and the leasing of Apartments; (ii) make reasonable use of the Communily Common Area and facilities for the sale of Lots and the leasing of Apartments; (iii) post signs and fiags in connection with its marketing; and (iv) conduct their business of disposing of Lots or Apartments by sale, lease or otherwise. 10.5 Title Rights. This Declaration shall nol be constmed to constitute a limitation on Declarant's tifie rights to the Annexable Property prior to ils Annexafion, nor shall it impose any obligation on Declarant or any other person or entity lo improve, develop or annex any portion of the Annexable Property. The rights of Declarant under this Declaration may be assigned to any successor(s) by an express assignment in a recorded instrument, including without limitation, a deed, option or lease. This Declaration shall not be construed to limit the right of Declarant at any time prior to such an assignment lo establish addilionai licenses, reservations and rights-of-way to itself, lo utility companies or lo olhers as may be reasonably necessary to the proper development and disposal of property owned by Declarant. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 65 64.58 10.6 Amendment. Notwithstanding the Article hereof entitled "Amendments," no amendment or rescission of this Article may be had, nor shall Declarant or any Merchant Builder or the Apartment Owner be prohibited from exercising its rights under this Article 10 for so long as Declarant a Merchant Builder or the Apartment Owner owns, or is the holder ofa mortgage or a deed of trust against any portion of the Covered Property, withoui the (i) wrilten consent of Declarant or the Apartment Owner, and (ii) the recording of such consent in the Qffice of the County Recorder. 10.7 Declarant Representative. Until the later to occur of the date on which Declarant (i) no longer owns any portion ofthe Aviara Community, or (ii) no longer holds a mortgage or deed of trusl wilh respect to any portion of the Covered Property or Annexable Property, or (iii) no longer has an assignment of a Merchant Builder's voting righls or (iv) cannoi unilaterally annex the Annexable Property to the Covered Property, the Community Association shall provide Declarant with written notice of all meetings ofthe Community Board as if Declarant were an Owner, and Declarant shall be entitled, without obligation, to have a representative present at all such Board meetings ("Declarant's Representative"). The Declarant's Representative shall be in addition to any represenlalive which the Declarant may have on the Community Board, and, if Declarant elects to have an additional representative, the Declarant's Representative may be present in an advisory capacity only and shall nol be a Board member or have any right to vote on matters coming before the Community Board. ARTICLE 11 INSURANCE U.I Insurance. The Community Association, lo the extent available, shall obtain and continue in effect, in its own name, the types of insurance set forth below. 11.1.1 Firc and Extended Coverage Insurance. The Community Association shall keep (i) any Improvements on the Community Common Area insured against loss by fire and the risks covered by a standard all risk of loss perils insurance policy under an extended coverage casualty policy in the amount of the maximum insurable replacement value thereof, and (ii) all personal property owned by the Community Association insured wilh coverage in the maximum insurable fair market value of personal property as determined annually by an insurance canier selected by the Communily Association. Insurance proceeds for Improvements in the Community Common Area and/or personal property owned by the Communily Association shall be payable to the Community Association. In the event of any loss, damage or destruction to the Community Common Area (excluding Lots), the Communily Associalion shall cause the same to be replaced, repaired or rebuilt in accordance with the provisions of this Declaration. Premiums for all insurance carried by the Community Association are a Common Expense. Aviara Collection Community - CC&Rs 21276-13 -1298005,13 66 5458 (a) Description of Policy Coverages. The policy shall cover the following real and personal property: (i) Community Common Area. All Improvemenls, if any, within the Community Common Area; but excluding land, foundafions, excavations, and other items typically excluded from property insurance coverage; and (ii) Landscaping. Lawn, trees, shrubs and plants located in the Community Common Area. (b) Covered Cause of Loss. The policy shall provide coverage against losses caused by fire and all other hazards normally covered by a "special form" policy or its equivalent. (c) Primary. The policy shall be primary and noncontributing with any other insurance policy covering the same loss. (d) Endorsements. The policy shall contain such endorsements as the Community Board in its discretion shall elect. (e) Waiver of Subrogation. Except as provided in Section 11.4, the Communily Association waives all rights of subrogation against the Owners and their Invitees. All insurance policies obtained by the Community Association shall include a waiver ofall subrogalion rights against any Qwner and their Invitees; provided, however, that a failure or inability of the Communily Association to obtain such a waiver shall not defeat or impair the waiver of subrogation rights between the Community Associalion and the Owners and their Invitees set forth herein. 11.1.2 Liability Insurance. The Community Associalion shall procure and keep in force public liability insurance in the name of the Community Association and the Owners against any liabiiily for personal injury or property damage resulting from any occurrence in or about the Community Common Area with a limit of not less than Three Million Dollars ($3,000,000), but in no event less than such minimum limits are set forth in CaUfomia Civil Code Section 1365.9, insuring against liability for bodily injury, death and property damage arising from the Community Association's activities or with respect to property the Community Associafion maintains or is required lo maintain including, if obtainable, a cross-liability endorsement insuring each insured against liability to each other insured. 11.1.3 Fidelity Insurance. The Community Association shall maintain fidelity insurance in an amouni equal to the amount of funds held by the Community Association during the term of the insurance but not less lhan one-fourth (l/4lh) of the annual Regular Assessments plus reserves, naming the Communily Association as obligee and insuring against loss by reason ofthe acts of the Communily Board, officers and employees of the Community Association, and any Aviara Collection Community - CC&Rs 21276-13 -1298005,13 67 6460 management agent and its employees, whether or not such persons are compensated for their services. 11.1.4 Worker's Compensation Insurance. The Community Association shall maintain worker's compensation insurance to the extent necessary to comply with all applicable laws of the Slate of California or the regulations of any governmental body or authority having jurisdiction over the Covered Property. 11.1.5 Other Insurance. The Community Association shall maintain other types of insurance as the Community Board determines to be necessary to fully protect the interests of the Owners. Anything contained herein to the contrary notwithstanding, the Community Associalion shall maintain such insurance coverage as may be required by the Federal National Mortgage Association ("FNMA") or the Federal Home Loan Mortgage Corporation ("FHLMC") so long as FNMA or FHLMC, respectively, holds a Mortgage on or owns any Lot. 11.1.6 Named Insured. The named insured under any such policies shall be the Community Associalion as a tmstee for the Members or their authorized representative, including any trustee with which such Community Association may enler inlo any Insurance Tmst Agreement, or any successor trustee, each of which shall be herein elsewhere refened to as the "Insurance Trustee" who shall have exclusive authority to negotiate losses under said poUcies. 11.2 Copies of Policies. Copies of all insurance poUcies (or certificates) showing the premiums to have been paid shall be retained by the Community Association and open for inspeciion by Owners al any reasonable lime(s). All insurance policies shall (i) provide that they shall not be cancelable by the insurer without first giving at least ten (10) days' prior notice in writing to the Community Association, and (ii) if obtainable, contain a waiver of subrogation by the insurer(s) against the Communily Association, Board and Owners. 11.2.1 Insurance to Satisfv Civil Code. Califomia Civil Code Section 1365.7 provides for a partial limitalion on the liability of volunteer officers and directors of the Community Association, provided that certain requirements, as set forth in Section 1365.7 are satisfied. The requirements include that general liability insurance and officers' and directors' Uability insurance be carried by the Communily Association in specified amounts. The Community Association shall maintain general liability insurance and officers' and directors' liability insurance in amounts that satisfy the requirements of the CaUfornia Civil Code Section 1365.7 and any successor statutes or laws to Umit the liability of volunteer officers and directors of the Community Association; provided however, that so long as Declarant has the righl to elect members of the Community Board under Section 3.2.3 or Section 3.2.4, such insurance shall be maintained with a limh of not less than Five Million Dollars ($5,000,000). 11.2.2 Reimbursement of Community Association. In the event any insurance policy deductible amount relating to an Owner's property loss is charged to the Community Aviara Collection Cominunity - CC&Rs 21276-13 -1298005,13 68 646i Association, the Owner shall reimburse the Community Association upon written demand for the amount charged lo the Communily Association. 11.3 Review of Insurance. The Community Board shall review the adequacy of all insurance at least once every year. The review shall include a replacement cost appraisal of all insurable Community Common Area Improvements without respect to depreciation. The Community Board shall adjust and modify the policies lo provide coverage and protection lhat is customarily carried by and reasonably available to prudent owners of similar property in the area in which the Covered Property is situated. 11.4 Individual Insurance. Each Owner shall maintain property insurance against losses lo real and personal property located within the Lot, including the Dwelling and to any upgrades or Improvements to any fixtures or Improvements located within the Lot and liability insurance against any liability resulting from any injury or damage occuning within the Lot. The Community Association's insurance policies will nol provide coverage against any of the foregoing. All Owners hereby waive all rights of subrogation against the Community Association, and any insurance maintained by an Owner must contain a waiver of subrogation rights by the insurer as to the Community Association; provided, however, that a failure or inability of an Owner to obtain such a waiver shall nol defeat or impair the waiver of subrogalion rights between the Owners and the Community Associalion sel forth herein. No Owner shall separately insure any property covered by the Community Association's property insurance policy as described above. If any Qwner violates this provision and, as a result, there is a diminution in insurance proceeds otherwise payable lo the Communily Associalion, the Owner will be liable lo the Community Association lo the extent of the diminution. The Community Association may levy an Enforcement Assessment against the Owner's Lot to collect the amount of the diminution. ARTICLE 12 DESTRUCTION OF IMPROVEMENTS AND EMINENT DOMAIN 12.1 Condemnation. The term "taking" as used in this Article shall mean condemnation by eminent domain or sale under threat of condemnation. In the event of a threatened taking ofall or any portion of the Community Common Area or any action is brought to condemn all or any portion of the Community Common Area, or a sale of all or a part thereof is made in Ueu of condemnation, the Members hereby appoint the Community Board and such persons as the Community Board may delegate to represent all ofthe Owners in connection with the taking. The Community Board shall act, in its sole discretion, with respect to any awards being made in connection with the taking and shall be entitled to make a voluntary sale to the condemnor in lieu of engaging in a condemnation action. Any awards received on account of the taking shall be paid lo the Community Association, and used, held or distributed as reasonably deemed appropriaie by the Communily Board subjeci lo the provisions hereof Aviara Collection Comniunity - CC&Rs 21276-13 -1298005.13 69 6462 12.2 Total Taking. If the taking is of the entire Community Common Area, the amount payable shall be paid to the Community Board as trustee for distribution to the Owners, subject to the rights of Mortgagees holding Mortgages covering the properties and all unpaid Community Assessments of each Owner, together with any interest charges attributable thereto. Said proceeds shall be distributed to the Owners and their respective Mortgagees according to the relative values ofthe respective properties in the Covered Property determined by an independent appraisal made by a qualified MAl real estate appraiser selecled by the Community Board. The rights of an Qwner and the Mortgagee of the Owner's Lot as to such pro rata distribution shall be goveraed by the provisions ofthe Mortgage encumbering such Lol. 12.3 Minor Taking. If the award is for the acquisition of only part of the Community Common Area and is less than ten percent (10%) of the value of all Community Common Area, the entire amount Ihereof shall be payable to the Community Board and such amount, together with any interest earned thereon, shall be held by the Community Associalion for the construction of capital Improvements on olher portions of the Communily Common Area. 12.4 Major Taking. If the award is for the acquisition of only part of the Community Common Area, but is in excess of ten percent (10%) of the value of all Community Common Area, the Community Board, in ils soie discretion, may retain all or any part thereof in the general fiinds of the Communily Associalion for the purpose of constructing altemative facilities for those so taken, or may distribute all or any part thereof to the Owners, as their interests appear, subject however, to any unpaid assessments and the rights of Mortgagees, in the manner set forth above. 12.5 Restoration of Improvements. In the event of partial or total destmction of Improvemenls upon the Community Common Area, it shall be the duty of the Community Associalion lo restore and repair the same lo ils former condition as promptly as practical, as hereinafter set forth. Notwithstanding the foregoing, in the event of destruction, the Community Association shall have the right to restore the damaged Improvements with Improvements which are different bul equal in value lo the former Improvements provided that the Community Association shall have obtained the prior conseni of a majority of the Voting Power. 12.5.1 Insurance Proceeds Adequate. If the cost of repairing or rebuilding Communily Coinmon Area does not exceed the amount of insurance proceeds initially offered or paid by the insurance carrier by more than ten percent (10%) ofthe cost of reconstruction then the following shall apply. (a) All insurance proceeds shall be paid to a commercial bank or tmst company designated by the Community Board lo be held for the benefit of the Community Association and the Owners and their Mortgagees, as their interests shall appear. (b) The Community Board shall levy a Reconstmcfion Assessment against the Owners in the same manner as provided in the Article hereof entitled "Community Funds Aviara Collection Community - CC&Rs 21276-13 -1298005.13 70 6483 and Assessments" equal to the difference between the cost of repairing or rebuilding and the amount of available insurance proceeds, which sums shall be payable into the fund held by the Insurance Trustee. The Community Board may advance the amount of the Reconstmction Assessment to the Insurance Trustee from Community Associalion general funds or reserves. (c) When the amount held by the Insurance Trustee is sufficient to pay the costs of repair and reconstruction, the Community Board shall thereupon contract for the repair or reconstruction of the Improvements, paying the cost of such work from the amount held by the Insurance Trustee, said repair or reconstruction to be for the purpose of retuming the Improvements substantially to their appearance and condition immediately prior to the casually. (d) The Communily Association may rebuild such damaged or destroyed common facilities in a different manner, or in a different location on the Community Common Area, provided that such Community Board action shall require consent of al least eighty percent (80%)) of the Community Board, If the Community Board carmot reach such an eighty percent (80%)) decision, any such change shall require the vote or written consent ofthe Members representing at leasl a majority of the Voting Power, and the written consent of a majority of the Mortgagees. In any event, if such changed plans require additional capital so as to constitute a Capital Improvement Assessment, the written assent of the Members representing at leasl a majority of the Voting Power musl be obtained if so required by the Article hereof entitled "Community Funds and Assessments." Notwithstanding the foregoing, if the event of damage or destruction affects only portions of a Cost Center Maintenance Area, the vote or written consent of only Members within the appUcable Cost Center shall be required. 12.5.2 Insurance Proceeds Inadequate. Ifthe cost ofsuch repairing or rebuilding exceeds the amount of available insurance by more than ten percent (10%o) of the cost of reconstruction then all insurance proceeds shall be deposited as provided in the Section above enlitled "Insurance Proceeds Adequate" and the Community Board shall require a determination by written assent or vote of the Members representing at least a majority of the Voting Power as to whether a Reconstruction Assessment equal to the difference between available insurance proceeds and the cost of such repairing or rebuilding shall be levied. A decision not to levy such a Reconstruction Assessment must be approved by at least a sixty-seven percent (67%) majority of each Class of Members of the Community Association (other than Class C Members). Notwithstanding the foregoing, if the event of damage or destmction affects only portions ofa Cost Cenler Maintenance Area, the vote or written consent of only Members within such Cost Center shall be required. If the Members determine not to levy such assessment, then the Community Board shall use the insurance proceeds available to make such restoration or repair as soon as reasonably possible or to clear the site of the damaged premises and complete such repairs as the Community Board deems appropriaie and the costs thereof shall be paid for with the insurance proceeds. Any deficiency may be raised by a Reconstruction Assessment in an amount determined by the Communily Board. In the event any excess insurance proceeds remain, the Communily Board, in ils sole discretion, may retain such sums in the general funds of the Community Association or Aviara Collection Community - CC&Rs 21276-13 -1298005,13 '1 6464 distribute pro-rata all or a portion thereof lo the Members, subject to the prior rights of Mortgagees whose interest may be protected by insurance policies canied by the Community Association. The rights of the Owner and the Mortgagee of such Owner's Lot as to such pro-rata distribution shall be governed by the provisions of the Mortgage encumbering such Lot. 12.5.3 Individual Project Common Area and Lots. In the event of partial or total damage or destruction of Individual Project Common Area or any Lot within the Covered Property, the responsible Individual Projeci Association or Owner shall either: (a) diligently commence to rebuild the same, if the insurance proceeds and other funds available to the Individual Project Association or Owner are sufficient to pay the costs of such rebuilding; or (b) if there are not sufficient funds to rebuild, clear and level the Individual Projeci Common Area or Lot, remove all wreckage, foundations, slabs, debris and remains of the building or buildings therefrom and leave the same in a level, clean and landscaped condition. Upon reconstruction, the Improvements shall be rebuilt substanfially in accordance with the original plans and specifications therefor; provided, however, that the exterior appearance thereof shall substantially resemble the appearance in form and color prior lo such damage and destmction. Notwithstanding the foregoing, however, the Qwner of such damaged Improvements may reconstruct or repair the same in accordance wilh new or changed plans or specifications with the prior wrilten approval of the Architectural Committee. The Individual Project Declaration shall provide procedures and standards for repair or reconstruction of damaged or destroyed property including special reconstruction assessments for repair of Individual Project Common Area so damaged or destroyed. ARTICLE 13 APARTMENT AREA AND COMMERCIAL AREA OWNERSHIP 13.1 Payment of Assessments. The amount of all Community Assessments other than Enforcement Assessment that shall be assessed against a Lol on which an Apartment Project is built shall be an amount which shall be calculated by mulfiplying the then current Community Assessment being assessed against Lots within the Covered Property by sixty-six and two-thirds percent (66-2/3%) and mulfiplying the product Ihereof by the number of Apartment Units within the Apartment Building(s) situated on such Lot. Notwithstanding the foregoing, any Enforcement Assessment levied shall be paid in full by the Qwner against whom the Enforcement Assessment is levied. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 '2 646J 13.2 Delegation of Use. The Apartment Owner may delegate his or her right of enjoyment in and to the Community Common Area to tenants of its Apartment Units and such tenants may further delegate such rights of enjoyment to the members ofthe tenant's family and the tenant's bona fide guests (subject to such rules and regulations pertaining to guests as are applied to other Members). 13.3 Conversion to Condominium; Annexation of Condominiums. The Apartment Owner, in its sole discretion, may elect to convert a portion of the Apartment Area to a condominium projeci or projects pursuant lo the California Civil Code. Commencing as ofthe creation of a condominium project, (a) the Owners of Condominiums in a converted Apartment Buildings or a newly annexed Condominium project shall all be "Owners" as defined in this Declaration and shall be assessed al the same rale and manner as olher Condominium Owners and (b) the Owners shall have the same voting rights as olher Condominium Owners of Attached Condominiums. Notwithstanding the foregoing, upon the conversion of an Apartment Building to a Condominium, the Owner shall not be required to pay an initial capital contribution if the Apartment Owner previously paid such amounts under Section 6.9.4 of this Declaration. 13.4 Change of Commercial Area Use. Any change in use of the Commercial Area shall be permitted only upon recordation ofa Supplementary Declaration by the Declarant changing the Commercial Area designation. In the event Apartment Units are constmcted in the Commercial Area, then notwithstanding anything to the contrary set forth herein, the Owner's share of Assessments shall be assessed on the same basis as for olher Apartment Units and the voting rights shall be specified in the Supplementary Declaration which allows the change in use from Commercial Area. In the event the Commercial Area use is changed to Dwellings other lhan Apartment Units, then the Owner's share of assessments shall be levied on the same basis as olher Condominiums or single family residences. ARTICLE 14 MORTGAGEE RIGHTS 14.1 Special Mortgagee Provisions, ll is anticipated that part or all of the Lots in the Covered Property may be financed for the Owners through various federal agencies ("Federal Agencies"). The interest of the Community Association and each of the Members is and shall be subjeci to and subordinate to the rules, regulations and requirements of such Federal Agencies purchasing Mortgages in the Covered Property. As the requiremenls ofsuch agencies are subject to change, if necessary. Declarant shall execute and cause lo be recorded a Supplementary Declaration, incorporating such addifional covenants, conditions and restrictions as are required by such agencies affecting the properties. Notwithstanding prior acquisifion of title to any portion of property in the Covered Property by the Community Association, any Individual Project Association, or any Owner, such Supplementary Declaration, shall be binding upon all Members, the Community Association, and all Individual Projeci Associations. Subject lo the provisions of ,'\viara Collection Community - CC&Rs 21276-13 -1298005,13 '3 6466 Section 16.5, Declarant may execute as many such Supplementary Declarations as are required to comply with such lending agency's requirements from time to fime throughout the course of sale of the Lots and Declarant may bind the Communily Association and all Owners by written consent with such agencies. 14.2 Conflict. Notwithstanding any contrary provision contained elsewhere in the Communily Documents, the provisions of this Article shall control with respect to the rights and obUgations of Institutional Mortgagees specified herein. 14.3 Liability for Unpaid Assessments. Any Institutional Mortgagee who obtains title to a Lot pursuanl lo a foreclosure of a First Mortgage (except upon a deed in lieu of foreclosure), shall take the property free of any claims for unpaid assessments or charges against the Lot which accrue prior to the acquisition of title to the Lot by the Institutional Mortgagee. 14.4 Payment of Taxes and Insurance. InsfilufionalMortgageesmay,jointly or singly, pay taxes or other charges lhat are in default and that may or have become a charge against any Community Common Area or Improvemenls thereon and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for such Community Common Area. Insfitutional Mortgagees making such payments shall be owed immediate reimbursement for such expenditures from the Community Association and, on demand, the Community Association shall execute an agreement in favor of all Institutional Mortgagees reflecting entitlement lo reimbursement. 14.5 Reserve Fund. The Community Association shall maintain as a reserve fund the Reserve Account pursuant to the Section of Article 4 entitled "Reserves" which shall be sufficient lo pay for maintenance, repair, and periodic replacement of Common Area Improvements which the Communily Associalion is obligated to mainlain. This reserve fund shall be funded by Regular Assessments of Owners that are payable in installments rather than by Special Assessment; provided, however, lhat this provision shall not be deemed to limit the power of the Community Association lo levy any other type of assessment or charge authorized by this Declaration. 14.6 Notice to Mortgage Holders. A Mortgagee shall not be entitled to receive any notice lhat this Declaration requires the Community Association to deUver to Mortgagees unless and until such Mortgagee, or its mortgage servicing contractor, has delivered to the Community Board a written notice stating that such Mortgagee is the holder of a Mortgage encumbering a Lot within the Covered Property (herein any Mortgagee deUvering such notice shall be referred to an "Eligible Holder"). Such notice shall state which Lot or Lots are encumbered by such Mortgage, and whether such Mortgagee is a First Mortgagee. Whenever the approval of all or a specified percentage of Mortgagees is required pursuant to this Declaration, it shall be deemed to mean the vote or approval of all or a specified percentage only of those Firsl Mortgagees that have delivered such notice to the Community Board. Notwithstanding the foregoing, if any righl of a Mortgagee under this Declaration is conditioned on a specific written request to the Community Association, in addition Aviara Collection Community - CC&Rs 21276-13 -1298005,13 74 646? to having delivered the notice provided in this Section, a Mortgagee must also make such request, either in a separate wrifing delivered to the Communily Association or in the notice provided above in this Section, in order to be entitied to such right. Except as provided in this Section, a Mortgagee's rights pursuant to this Declaration, including, without limitation, the priority ofthe lien of Firsl Mortgages over the Uen of Community Assessments levied by the Community Association hereunder shall not be affected by the failure to deliver a notice to the Community Board. Any notice or request delivered to the Community Board by a Mortgagee shall remain effective without any further action by such Mortgagee for so long as the facts set forth in such notice or request remain unchanged. An Eligible Holder is entitled lo timely written notice of: 14.6.1 Any condemnation loss or casualty loss that affects eiiher a material portion ofthe Covered Property or the Lot on which the Eligible Holder holds a First Mortgage; 14.6.2 Any delinquency in the payment of assessments or charges owed by the Owner of a Lol lhat is subject to a First Mortgage held by the Eligible Holder ifthe delinquency is not cured wilhin sixty (60) days after its due date; 14.6.3 Any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Community Association; 14.6.4 Any proposal to take any action that requires the consent of a specified percentage of Eligible Holders of Firsl Mortgages; or 14.6.5 Any default by an Owner-Mortgagor of a Lot in the performance of such Owner/Mortgager obligations under the Community Goveming Documents that is not cured within sixty (60) days. 14.7 Inspection of Books and Records. Upon written request, a First Mortgagee shall be entitled to inspect the books, records and fmancial statements of the Community Association and the Community Governing Documents and any amendments thereto during normal business hours or under olher reasonable circumstances. 14.8 Voting Rights of Mortgagees. For purposes of this Article, a Mortgagee shall be entitled to one (1) vote for each Lot encumbered by a First Mortgage owned by the Mortgagee, except the Mortgagee of an Apartment Project which will be entitled to the same number of votes as its mortgagor. 14.9 Action Requiring Mortgagee Votes. Neither the Community Association nor any Qwner shall do any of the following, unless at least Eligible Holders of First Mortgages having sixty-seven (67%) of the Voting Power under this Article have given their prior written approval: Aviara Collection Community - CC&Rs . 21276-13 -1298005.13 6468 14.9.1 By act or omission seek to abandon, partition, subdivide, encumber, sell or transfer any property or Improvements owned, directiy or indirectiy, by the Community Association for the benefit of the Lots and the Owners. (The granting of easements for public utilities or for other public purposes consistent with the intended use of the property by the Community Association and Owners shall not be deemed a transfer within the meaning of this Section); 14.9.2 By act or omission change, waive or abandon any scheme of regulations, or enforcement thereof, pertaining to architectural design or exterior appearance of Lots, the exierior maintenance of Lots, the maintenance of party walls, fences or driveways, or the upkeep of lawns, plantings or other landscaping within the Covered Property; 14.9.3 By act or omission change the method of determining the obligations, assessments, dues or other charges which may be levied against an Owner; 14.9.4 Fail to maintain fire and extended coverage insurance on insurable portions of the Community Common Area on a cunent replacement cost basis in an amount not less than one hundred percent (100%)) of the insurable value based on cunent replacement cost; or 14.9.5 Use hazard insurance proceeds for losses to any property or Improvements owned by the Communily Associalion olher lhan for the repair, replacement or reconstmction ofthe property and Improvements. 14.10 Votes for Termination of Individual Proiect. Any election to terminate the legal stalus ofthe Covered Property as a planned development project shall require: 14.10.1 The approval of at least Eligible Holders of First Mortgages having fifty-one percent (51%) of the Voting Power under this Article if the election to terminate the legal status is a result of substantial destmction or a substantial taking in condemnation ofthe Covered Property; or 14.10.2 The approval of sixty-seven percent (67%) of the tolal Vofing Power ofthe Community Association and Eligible Holders of First Mortgages having sixty-seven percent (67%)) ofthe Vofing Power under this Article, if Section 14.10.1 above is not applicable. 14.11 Condemnation or Destruction. In the event a portion of the Covered Property is either condemned or destroyed or damaged by a hazard lhat is insured against, restorafion or repair shall be performed substanfially in accordance with the provisions of this Declaration and the original plans and specificafions for the Covered Property, unless fifty-one percent (51%) ofthe Eligible Holders of First Mortgages approve the laking of other acfion by the Community Association. This provision shall not apply lo the Apartment Area so long as it is being operated as apartments. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 76 6469 14.12 Mortgagee Protection. A breach of any of the conditions contained in this Declaration shall not defeat nor render invalid the lien of any Mortgage made in good faith and for value as to any Lot within the Covered Property; provided, however, that the conditions contained in this Declaration shall be binding upon and effective against any Owner of a Lot if the Lot is acquired by foreclosure, tmstee's sale or otherwise. 14.13 Distribution of Insurance and Condemnation Proceeds. No Qwner, or any other party, shall have priority over any right of Institufional Mortgagees of Lots pursuant to their Mortgages in case of a distribution to Owners of insurance proceeds or condemnation awards for losses lo or a taking of units or common area. Any provision to the contrary in the Community Governing Documents is to such extent void. All applicable fire and all physical loss or extended coverage insurance policies shall contain loss payable clauses acceptable to the affected Institutional Mortgagees naming the Mortgagees, as their interests may appear. 14.14 Non-Curable Breach. Any Mortgagee who acquires title to a Lot by foreclosure or by deed in lieu of foreclosure or assignment-in-lieu of foreclosure shall not be obligated to cure any breach of this Declaration that is non-curable or that is not practical or feasible to cure. 14.15 Loan to Facilitate. Any Mortgage given to secure a loan to facilitate the resale of a Lot after acquisition by foreclosure or by a deed-in-lieu of foreclosure or by an assignment-in-Iieu of foreclosure shall be deemed to be a loan made in good faith and for value and entitled to all ofthe rights and protections of this Article. 14.16 Appearance at Meetings. Because of its financial interest in the development, any Mortgagee may appear (but cannot vote except under the express circumstances set forth in this Article and in Section 15.1 below) at meetings of the Members and the Community Board to draw attention lo violations of this Declaration lhal have nol been corrected or made the subject of remedial proceedings or assessments. 14.17 Right to Furnish Information. Any Mortgagee can fumish information lo the Community Board concerning the status ofany Mortgage. 14.18 Inapplicability of Right of First Refusal to Mortgagee. No right of first refiisal or similar restriction on the right of an Owner to sell, transfer or otherwise convey the Owner's Lot shall be granted to the Community Associafion without the written consent ofany Mortgagee ofthe Lot. Any right of first refusal or option to purchase a unit that may be granted to the Community Association (or other person, firm or entity) shall not apply to any conveyance or transfer of title to such Lot, whether voluntary or involuntary, to a Mortgagee which acquires title to or ownership of the Lot pursuant to the remedies provided in its Mortgage or by reason of foreclosure of the Mortgage or deed or assignment in lieu of foreclosure. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 77 64 ?o ARTICLE 15 AMENDMENT 15.1 Amendments. Prior to the close of escrow for the sale of the first Lot in the first Phase of the Individual Project to a member of the homebuying public, Declarant, without the conseni of any Owner, and excepi as specifically provided below and conditioned in Section 3.3 hereof, may amend this Declaration wilh the consent of the DRE. In such event, any Merchant Builder or Apartment Owner that owns any portion of the Covered Property then subject to this Declaration shall consent to any such amendment, including a complete amendment and restatement of this Declaration and shall execute any such amendment or restatement upon the request of Declarant. After the sale of a Lot to an Owner, other than Declarant, Merchant Builders or the Apartment Owner, this Declaration may be amended by an instmment in writing, signed and acknowledged by the President or Vice President and Secretary or Assistant Secretary of the Community Board after approval of the amendment by the vote or written consent of at least seventy-five (75%) of the voting power of each class of Members ofthe Community Associafion. After conversion of the Class B membership in the Community Association to Class A membership, this Declaration may be amended at any time and from lime to time by the vote or written consent of (a) at least seventy-five percent (75%) of the total Voting Power of the Members of the Community Association, and (b) at leasl seventy-five percent (75%) of the vofing power of the Members of the Communily Association olher lhan Declarant. The vote (in person or by proxy) or writlen consent of (a) the Members holding at least seventy-five percent (75%) ofthe Class A Voting Power and the Members holding at leasl seventy-five percent (75%) of Class B Vofing Power and (b) Eligible Holders of First Mortgages holding fifty-one percent (51%) of the Vofing Power (based on the vofing rights set forth in Article 14) shall be required to add to, amend or modify, whelher for final amendment or otherwise, any material provision of this Declaration which establishes, provides for, govems or regulates any of the following subjects: 15.1.1 Voting; 15.1.2 Community Assessments or Individual Project Assessments, as the case may be, assessment liens, or subordination of such liens; Area; 15.1.3 Reserves for maintenance, repair, replacement ofthe Community Common 15.1.4 Insurance; 15.1.5 Righls lo use ofthe Communily Common Area; 15.1.6 ResponsibiUty for mainlenance and repair of the Covered Property; Aviara Collection Community - CC&Rs 21276-13 -1298005.13 78 64 7i 15.1.7. Expansion or contracfion of the Covered Property or the addition, annexation, or withdrawal of property lo or from the Covered Property; 15.1.8 Boundaries of any Lol; 15.1.9 Reallocation of interests in the Community Common Area; 15.1.10 Conversion of Lots into Community Common Area or the Community Common Area into Lots; 15.1.11 Leasing of single family residential Dwellings; 15.1.12 Imposition of any right of first refusal or similar restriction on the right of a Owner to sell, transfer or otherwise convey his or her Lot; 15.1.13 Any provisions which are for the express benefit of Mortgagees, EUgible Holders, or eligible insurers or guarantors of First Mortgages on Lots; 15.1.14 A decision by the Community Association to estabUsh self-management when professional management has been required previously by an Eligible Holder of a First Mortgage; 15.1.15 Any action to terminale the legal status of the Covered Property after substantial damage or destruction occurs; or 15.1.16 Restoration or repair ofthe Covered Property (after a hazard damage or partial condemnation) in a manner other than that specified in this Declaration. An addition or amendment to this Declaration shall not be considered material if it is for the purposes of conecting technical enors or for clarification only. Any Eligible Holder of a First Mortgage who received a written request to approve additions or amendments by certified or registered mail, return receipt requested, who does not respond within thirty (30) days, shall be deemed to have approved such addition or amendmeni. Notwithstanding the foregoing, the percentage of a quorum or the voting power of the Community Association or of Members other lhan the Declarant necessary to amend a special clause or provision of this Declaration shall not be less than the prescribed percentage of affirmative votes required for action to be taken under this clause or provision. An amendment or modification shall be effective when executed by the President or Vice President and Secretary or Assistant Secretary of the Community Association who shall certify that the amendment or modification has been approved as hereinabove provided, and shall record the amendment in the Official Records of San Diego County, California. For the purpose of recording such instrument, each Owner, with the exception ofthe Secretary ofthe U.S. Department of Veteran Affairs, an officer of the United States of America, hereby grants to the Aviara Collection Community - CC&Rs 21276-13 -1298005.13 79 64?2 President or Vice President and Secretary or Assistant Secretary of the Community Associafion an irrevocable power of attorney to act for and on behalf of each and every Qwner in certifying, executing and recording said instrument. Notwithstanding anything to the contrary contained herein, in no event may any of Declarant's rights or privileges under the Community Goveming Documents be terminated, altered or amended without Declarant's prior written consent. 15.2 Conflict with Article 15 or Other Provisions ofthis Declaration. Except as limited by Section 3.3, lo the extent any provisions of this Article 15 conflicts with any other provisions of this Declaration, the provisions of this Article 15 shall control. 15.3 Business and Professions Code Section 11018.7. All amendments or revocations of this Declaration shall comply with the provisions of California Business and Professions Code Seclion 11018.7 and any successor statutes or laws, lo the exlent said Section is applicable. 15.4 Reliance on Amendments. Any amendments made in accordance with the terms of this Declaration shall be presumed valid by anyone relying on them in good faith. 15.5 Amendment Affecting Obligation to Maintain Common Area. Notwithstanding anything in this Declaration to the contrary, any amendment to this Declaration which would modify the obligation of the Community Association to maintain the Community Common Area, the Assessment procedure set forth in this Declaration to assure said maintenance, or the right of the City to enler upon common easements shown on any Final Map to maintain or repair such easements or the common facilities located thereon shall nol be effective unless the written approval ofthe City is first obtained and a copy thereof recorded in the office ofthe San Diego County Recorder, and no Amendment to this Declaration which would aher the obligafions relating to the maintenance of the Trial System or olher Improvemenls within or for the benefit of the Batiquitos Lagoon without the approval ofthe California Coastal Commission. 15.6 Amendments to Cost Center Provisions. Any amendments to this Declaration modifying or deleting the provisions relating to Cost Centers shall, in addition to the approvals required under Section 15.1, require the approvals under Section 3.6 of this Declaration. ARTICLE 16 ANNEXATION OF REAL PROPERTY 16.1 Annexation. Declarant may annex any of the Annexable Property described in Exhibit "B" by any of the methods set forth hereinafter in this Article. Declarant intends to sequentially develop the Annexable Property on a phased basis. However, Declarant may elect not to develop all or any part of the Annexable Property, to annex the Annexable Property to this Declaration in increments of any size whatsoever, or to develop more than one such increment at any given lime and in any given order. Moreover, Declarant reserves the right to subject the Annexable Aviara Collection Community - CC&Rs 21276-13 -1298005,13 80 6473 Property to one or more separate declarations of covenants, conditions and restrictions and to subject the Annexable Property to the jurisdiction and power of a non-profit mutual benefit corporation or other entity with powers and obligations similar lo the Community Association and which is not subject lo the provisions of this Declaration. Although Declarant shall have the ability to annex the Annexable Property as provided in this Article, Declarant shall not be obligated to annex all or any portion of the Annexable Property, and the Annexable Property shall not become subject to this Declaration unless and until a Supplementary Declaration covering it has been recorded. No party olher than Declarant may annex any of the Annexable Property without the consent of Declarant. 16.2 Annexation Without Approval. All or any part of the Annexable Property may be annexed by Declarant and become subject to this Declaration and subject to the jurisdiction of the Community Association without the approval, assent or vote of the Community Associafion or its Members. The issuance of a Public Report by the DRE shall be deemed to be approval by the DRE of such annexation. 16.3 Annexation Pursuant to Approval. Ifany person desires to add property otherthan the property described on Exhibit "B" lo the plan of this Declaration and to subject such property lo the jurisdiction of the Community Association, then such property may be annexed, ifthe vote or written assent of sixty-seven percent (67%) of the Voting Power of the Community Associafion is obtained. 16.4 Covenants Running With the Land. Declarant may transfer aU or any portion of the Annexable Property lo a Merchant Builder under a grant deed wherein Declarant reserves the right lo annex such property and subject it lo this Declaration. The restriction on the property described in Exhibit "B" wherein it may be made subject lo this Declaration upon the recordafion of a Supplementary Declaration is hereby declared lo be an equitable servitude upon the Annexable Property in favor of the Covered Property subject to this Declarafion and any other real property owned by Declarant in the vicinity of the Covered Property and shall mn with the land and be binding on and inure to the benefit of all parties having or acquiring any right, tifie or interest, in such real property. 16.5 Supplementary Declarations. The recordation of a Supplementary Declarafion shall constitute and effectuate the Annexation of said real property described therein, making said real property subject to this Declaration and subject to the functions, powers and jurisdiction of the Community Association, and thereafter said annexed real property shall be part of the Covered Property and subject to all of the terms and provisions of this Declaration. Supplementary Declarations may also be recorded by Declarant with respect to a Phase prior to the commencement of Community Assessments with respect thereto, which may further delineate any Community Common Area, Cost Center or Cost Center Maintenance Areas within such Phase or contain complementary addhions and modifications as provided in this Section. In the event that the vote or written assent of a certain percentage of Members is required to annex any property as provided for above, then the recordation of a Supplementary Declaration certified to by the President or Vice Aviara Collection Community - CC&Rs 21276-13 -1298005 13 ol 6474 President and Secretary or Assistant Secretary shall constitute and effectuate the Annexation of said real property and for the purpose of recording any such instmment, and each Member, with the exception of the Secretary of the U.S. Department of Veteran Affairs, an Officer ofthe United States of America, hereby grants to the President or the Vice-President and Secretary or Assistant Secretary of the Community Association an inevocable power of attomey for and on behalf of each and every Member in certifying, executing and recording said instrument. The Community Association shall be entitled to record a Supplementary Declaration to establish a Cost Center as provided in Section 4.3.15. Such Supplementary Declarations contemplated above may contain such complementary additions and modifications of the covenants, conditions and restrictions contained in this Declaration as may be necessary to reflect the different character, if any, of the annexed property and as are not inconsistent with the plan ofthis Declaration. The express desired intention of Declarant is to establish a cohesive plan of such covenants and servitudes to be uniformly applicable to the Covered Property, including those portions added thereto by annexation. If the signalure or consent of any Merchant Builder which owns any portion of the Covered Property subject to a Supplementary Declaration is required, such Merchant Builder shall execute and consent to any such Supplementary Declaration. Notwithstanding anything to the contrary contained herein. Declarant shall not record any Supplementary Declaration with respect to the Apartment Area wilhoul the prior written consent of the Apartment Owner. 16.6 Community Common Area. Any portion of the property being annexed that is intended or required to be Community Common Area shall be conveyed to the Community Association prior lo the close of the first sale of any Lot in any subdivision in the annexed property lo an Owner, other than the Declarant, a Merchant Builder or the Apartment Owner. 16.7 Rights and Obligations of Owners. After the required annexafion procedures are fulfilled, all Owners in the Covered Property shall be entitled to the use of any Community Common Area in such annexed property and the Community Governing Documents, and Owners of such annexed property shall thereupon be subject to this Declaration. After each Annexation, the Community Assessments shall be assessed in accordance with the provisions set forth in Article 6 with the annexed property being assessed for a proportionate share ofthe total Common Expenses on the same basis as the olher property in the Covered Property. Community Assessments for the year that such property is annexed shall be prorated pn the basis of a three hundred and sixty (360) day year. 16.8 Mergers or Consolidations. Upon a merger or consolidation of the Community Associafion with another association, the Community Association's properties, rights and obligafions may, by operafion of law, be transfened to the surviving or consoUdated association, or, alternatively, the properties, right and obligations of another association may, by operation of law, be added to the properties, rights and obligalions of the Community Association as a surviving corporation pursuant to a merger. The surviving or consoUdated association may administer the covenants, conditions and restrictions established by this Declaration within the Covered Property, together wilh the covenants and restrictions established upon any other property as one plan. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 82 6475 16.9 De-Annexation. Subject lo the provisions of Section 3.3.4, Declarant may delete all or any portion of the Annexable Property from the coverage of this Declaration and rescind any Supplementary Declaration provided Declarant is the sole Owner of all of the real property described in the Supplementary Declaration to be rescinded. Such deletion shall be effective upon the recordation of a "Notice of Deletion of Tenitory" signed by Declarant, in the same manner as the Supplementary Declaration to be rescinded was recorded. ARTICLE 17 TERM AND ENFORCEMENT 17.1 Term. The covenants, conditions and restrictions of this Declaration shall mn with and bind the Covered Property and shall inure lo the benefit of and be enforceable by the Community Association or any Member, their respective legal representatives, heirs, successors and assigns, for a lerm of sixty (60) years from the date this Declaration is recorded, after which time said covenants, conditions and restrictions shall be automatically extended for successive periods often (10) years each, unless an instrument, signed by Members holding sixty-seven percent (67%) ofthe Voting Power has been recorded, at least one (1) year prior to the end of any such period in the manner required for a conveyance of real property, in which it is agreed lhat this Declaration shall terminate at the end of the then applicable term. 17.2 Enforcement and Nonwaiver. 17.2.1 Rights of Enforcement of Community Governing Documents. The Community Association or any Owner shall have a right of acfion against any Owner, and any Owner shall have a right of action against the Community Association, lo enforce by proceedings al law or in equity, all restrictions, condilions, covenants and reservations, now or hereafter imposed by the provisions of the Community Goveming Documents or any amendment thereto, including the righl to prevent the violation of such restrictions, condifions, covenants, or reservations and the right to recover damages or other dues for such violafion except that Owners shall not have any right of enforcement conceming liens for Community Assessments or Individual Project Assessments, as the case may be. The Community Association shall have the exclusive right to the enforcement of provisions relating to architectural control and the Community Association Rules, unless the Community Association refuses or is unable to effectuate such enforcement, in which case any Owner who olherwise has standing shall have the right to undertake such enforcement. Failure of the Community Association, Declarant or any Owner to enforce any covenants or restrictions herein coniained shall in no event be deemed a waiver of the right to do so thereafter. The City shall have the same right to enforce the provisions of this Declaration as an Owner in the Covered Property. 17.2.2 Procedure for Enforcement. Notwithstanding anything to the contrary set forth in the Seclion above entitled "Righls of Enforcement of Community Goveming Documents," in enforcing any action under the Community Governing Documents for monetary damages, the Aviara Collection Community - CC&Rs 21276-13 -1298005.13 83 6476 parties shall comply with the provisions of California Civil Code Section 1354 and any successor statutes or laws. The Community Board shall annually provide to the Members a summary of the provisions of Califomia Civil Code Section 1354 and any successor statutes or laws, which shall include the language required and shall be delivered in the manner provided in Califomia Civil Code Section 1365. The exception for disputes related to Community Association assessments set forth in Section 1354 shall not apply to disputes between an Member and the Community Association regarding assessments imposed by the Community Association, if the Member chooses to pay in full the Community Association all of the assessments as specified in Califomia Civil Code Section 1366.3 and any successor statutes or laws. 17.3 Notice of Actions Against Declarant. The Community Association shall comply with the provisions of Califomia Civil Code Section 1368.4 and any successor statutes or laws prior to the filing of any civil action by the Communily Association against the Declarant or other developer of the Covered Property for either alleged damage to the Community Common Area or olher property withinthe Covered Property lhat the Community Association is obligated to maintain or repair, or alleged damage to any other portion of the Covered Property that arises out of, or is integrally related to, such damage to the Community Common Area or other property within the Covered Property that the Community Association is obligated lo maintain or repair. Such nofice shall specify all of the matters set forth in Seclion 1368.4 and any successor statutes or laws. 17.4 DISPUTE NOTIFICATION AND RESOLUTION PROCEDURE (DECLARANT DISPUTES); WAIVERS. Notwithstanding any provision ofthis Declarafion to the contrary, any action or claim by, between or among the Declarant or any Merchant Builder, as the builders of any portion of the Covered Property or any director, officer, partner, member, employee or agent of the Declarant, any Merchant Builder or Apartment Owner, or any contractor, subconlractor, design professional, engineer or supplier who provided labor, services or materials to the Covered Property and who is bound or has agreed lo be bound to the following dispute notification and resolution procedure (collectively, the "Declarant Parties") and either the Community Association or any Owner, relating to or arising out of the Covered Property, this Declaration or other governing documents for the Community Association, any other agreements between the Declarant Parties and an Owner or the Community Association (unless any such agreement specifies another form of dispute resolution), the sale of any portion of the Covered Property, the use or condition of the Covered Property or the design or constmction of or any condiiion on or affecting the Covered Property, including, but not limited to, construction defects, surveys, soils conditions, grading, specifications, inslallalion of improvements or disputes which allege fraud, misrepresentation or breach of implied or express wananties as to the condhion of the Covered Property or Covered Property where the amount in controversy is greater than $25,000 or in which non-monetary relief is sought that cannot be granted by a Municipal Court in the State of CaUfornia as of January 1, 1998 (collectively, "Dispule(s)"), shall be subject to the provisions set forth below. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 84 647? 17.4.1. Notice. Any person with a claim defined as a Dispute, above ("Claimant"), shall nolify each applicable Declarant Party in writing ofthe claim, which writing shall describe the nature of such claim and any proposed remedy (the "Claim Notice"). 17.4.2 Right to Inspect and Right to Corrective Action. Within a reasonable period after receipt of the Claim Notice, which period shall not exceed sixty (60) days, the Declarant (and any applicable Declarant Parties) and the Claimant(s) shall meet at a mutually-acceptable place within or near the Covered Property to discuss the Dispute claim. At such meeting or at such other mutually-agreeable lime, the Declarant (and any applicable Declarant Parties) and their respective representatives shall have full access lo the property lhat is subject to the ciaim and shall have the righl to conduct inspections, testing and/or destructive or invasive testing of the same in a manner deemed appropriate by Declarant (and any applicable Declarant Parties), which rights shall continue unlil such lime as the Dispute is resolved as provided in this Section 17.4. The parties to the Dispute shall negotiate in good faith in an attempt to resolve the claim. If the Declarant (and any applicable Declarant Parties) elects to take any conective action, the Declarant (and any applicable Declarant Parties) and their respective representatives and agents shall be provided full access to the Covered Property to take and complete corrective action. 17.4.3 Civil Code Sections 1368.4 and 1375. Nothing contained herein shall be deemed a waiver or Umitation of the provisions of California Civil Code Section 1368.4, referenced in Section 17.3 of the Declaration. If the claim is subject to the provisions of Civil Code Section 1375 as il may be amended from lime to time, compliance with the procedures of Civil Code Seclions 1375 (b), (d) and (e) shall satisfy the requiremenls of Sections 17.4.1 and 17.4.2. 17.4.4 Mediation. If the parties to the Dispute cannot resolve the claim pursuant lo the procedures described in Section 17.4.2 above (including, if appUcable, Civil Code Section 1375 procedures), the matter shall be submiited to mediafion pursuant to the mediation procedures adopted by the American Arbitration Associalion (except as such procedures are modified by the provisions of this Section 17.4.4) or any successor thereto or to any other entity offering mediation services that is acceptable lo such parties. No person shall serve as a mediator in any Dispute in which the person has any fmancial or personal interest in the result of the mediation, except by the written consent of all parties to the Dispute participating in the mediation. Prior to accepting any appointment, the prospective mediator shall disclose any circumstances likely to create a presumption of bias or to prevent a prompt commencement of the mediation process. Except as provided in Section 17.4.8 below, the Communily Association and each Owner covenants that each shall not commence any litigation against the Declarant Parties without complying with the procedures described in this Section 17.4.4. (a) Position Memoranda; Pre-Mediation Conference. Within ten (10) days of the selection of the mediator, each party lo the Dispute participating in the mediation shall submil a brief memorandum setting forth its position with regard to the issues that need to be resolved. The mediator shall have the right lo schedule a pre-mediation conference and all parties Aviara Collection Community - CC&Rs 21276-13 -1298005.13 85 6478 to the Dispute participating in the mediation shall attend unless otherwise agreed. The mediation shall be commenced within ten (10) days following the submittal of the memoranda and shall be concluded within fifteen (15) days from the commencement ofthe mediation unless the parties to the Dispute participating in the mediation mutually agree to extend the mediation period. The mediation shall be held in the county in which the Covered Property is located or such other place as is mutually acceptable to the parties lo the Dispute participating in the mediation. (b) Conduct of Mediation. The mediator has discretion to conduct the mediation in the manner in which the mediator believes is most appropriate for reaching a settlement ofthe Dispute. The mediator is authorized to conduct joint and separate meetings with the parties to the Dispute participating in the mediation and to make oral and written recommendations for selllement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the Dispute, provided the parties to the Dispute participating in the mediation agree and assume the expenses of obtaining such advice. The mediator does not have the authority to impose a settlement on the parties to the Dispute participating in the mediation. (c) Exclusion Agreement. Prior to the commencement ofthe mediation session, the mediator and all parties to the Dispute participating in the mediation shall execute an agreement pursuant to Califomia Evidence Code Section 1115 et seq. or successor statute in order to exclude the use of any testimony or evidence produced at the mediation in any subsequent dispute resolution fomm, including, but not limited to, court proceedings, reference proceedings or arbitration hearings. Pursuanl to Califomia Evidence Code Section 1115 et seq., the agreement shall specifically state that evidence of anything said or of any admission made in the course of the mediation is nol admissible evidence, and disclosure of any such evidence shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. Unless the document provides otherwise, no document prepared for the purpose of, or in the course of, or pursuant to, the mediafion, or copy thereof is admissible in evidence; and disclosure ofany such document shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. The provisions of California Evidence Code Sections 1115 through 1128 shall also be applicable to such mediation process. (d) Persons Permitted at Sessions. Persons other than the parties to the Dispute participating in the mediation, their representatives and the mediator may attend mediation sessions only with the permission of the parties to the Dispute participating in the mediation and the consent of the mediator; provided, however, that such permission and consent shall not be required to allow participation of such parties' insurer in the mediation to the extent required under such parties' liability insurance policy. Confidential information disclosed to a mediator by the parties to the Dispute participating in the mediation or by witnesses in the course of the mediation whiie serving in such capacity shall be confidential. There shall be no stenographic record or other official record of the mediation process. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 86 6479 (e) Expenses. The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediafion, including, bul not limited to, the fees and costs charged by the mediator and the expenses of any witnesses or the cost of any proof or expert advice produced at the direct request of the mediator, shall be bome equally by the parties to the Dispute participafing in the mediation unless they agree otherwise. Each party lo the mediation shall bear its own attorneys' fees and costs in connection with such mediation. 17.4.5 Judicial Reference. Should mediation pursuant to Section 17.4.4 above nol be successful in resolving any Dispute, such Dispute shall be resolved by general judicial reference pursuant to California Code of Civil Procedure Sections 63 8 and 641 through 645.1 or any successor statutes thereto, and as modified or as otherwise provided in this Section 17.4.5. Subject to the limitations set forth in this Section 17.4.5, the judicial referee shall have the authority to try all issues, whether of fact or law, and to report a statemenl of decision to the court. The judicial referee shall be the only trier of fact or law in the reference proceeding and shall have no authority lo further refer any issues of fact or law to any other party, without the mutual consent ofall parties to the judicial reference proceeding. (a) Participation by Declarant Parties. The parties to the Dispute shall cooperate in good faith lo ensure that all necessary and appropriate parties are included in the judicial reference proceeding. Declarant, Merchant Builder and Apartment Qwner shall not be required lo participate in the judicial reference proceeding if (i) all parties against whom Declarant or any such Merchant Builder or Apartment Owner would have necessary or permissive cross-claims or counterclaims cannoi be joined in the judicial reference proceeding, including, but not limhed to, the Declarant Parties, or (ii) the enforcement of the provisions of this Section 17.4.5 would impair the insurance coverage to Declarant, any Merchant Builder, any Apartment Owner or any Declarant Party for any claim arising out of the Dispute. Prior to commencement ofany action under this procedure, Claimanl(s) will allow Declarant and any applicable Merchant Builder or Apartment Owner a reasonable time in which to determine if the parties described in subsection (i) above can be joined in the judicial reference proceeding, to seek the consent of their liability insurance carrier(s) to the judicial reference proceeding and to contact each applicable Declarant Party with respect to any consent required by their insurance caniers. If either Declarant or any applicable Merchant Builder or Apartment Qwner determine that they cannot join all ofthe parties set forth in subsection (i) above or that their insurance coverage would be impaired with respect to the Dispute, or if Declarant or a Merchant Builder or Apartment Owner is advised by a Declarant Party that it contends ils insurance coverage will be impaired by enforcement ofthis Section 17.4.5, Declarant or the Merchant Builder or Apartment Owner may either elect not to participate in the judicial reference proceeding, or, in the case of the impairment of a Declarant Party's insurance coverage, seek enforcement of their respective rights to have such Declarant Party participate in the judicial reference proceeding by motion or other application pursuant to Califomia Code of Civil Procedure Sections 638 and 641 through 645.1 or any successor statutes thereto. If Declarant or a Merchant Builder or Apartment Owner elect not to participate in the judicial reference proceeding, Declarant or any applicable Merchant Builder or Apartment Qwner will provide notice to Claimant(s) that the Aviara Collection Community - CC&Rs 21276-13 -1298005.13 87 6480 Dispute will not be resolved by judicial reference. If either Declarant or any applicable Merchant Builder or Apartment Owner is unsuccessful in its attempt to compel any Declarant Party to participate in the judicial reference proceeding, they will provide notice to Claimant(s) that such Declarant Party will not participate in the judicial reference proceeding and whether or not Declarant or such Merchant Builder or Apartment Qwner will participate in such proceeding. Upon receipt by Claimant(s) of notice from Declarant or such Merchant Builder or Apartment Owner that the Dispute will not be resolved by judicial reference, Claimant(s) may commence an action in an appropriaie court of law against such party and/or any applicable Declarant Party. Upon receipt by Claimant(s) of notice from Declarant or any applicable Merchant Builder or Apartment Owner that any Declarant Party will not participate in the judicial reference, the judicial reference shall proceed as lo all parties except such Declarant Party and upon receipt of such notice Claimant(s) may commence legal proceedings against such Declarant Party in an appropriate court of law. In the event lhat Claimant(s) are permitted to commence legal proceedings as provided herein, subsections (b) through (f) and (h) through (n) of this Section 17.4.5 will not apply in such legal proceeding, provided that the legal proceeding shall be tried by a judge and not a jury and Claimant(s) and any appUcable Declarant Party shall waive their rights to a jury (unless all parties to such proceeding mutually consent otherwise) and agree that the waiver of punitive damages set forth in Section 17.4.5(g) below shall be applicable in such proceeding, (b) Place. The proceedings shall be heard in the county in which the Covered Property is located. (c) Referee. The referee shall be an attomey or retired judge with experience in relevant real estate matters. The referee shall not have any relationship to the parties to the Dispute or interest in the Covered Property. The parties lo the Dispute participating in the judicial reference proceeding shall meet to select the referee wilhin ten (10) days after service of the initial complaint on all defendants named therein. Any dispute regarding the selection of the referee shall be promptly resolved by the judge to whom the matter is assigned, or if there is none, to the presiding judge of the Superior Court of the County in which the Covered Property is located, who shall select the referee. (d) Commencement and Timing of Proceeding. The referee shall promptly commence the proceeding al the earliest convenient date in light of all of the facts and circumstances and shall conduct the proceeding without undue delay. (e) Pre-hearing Conferences. The referee may require one or more pre-hearing conferences. (f) Discovery. The parties lo the j udicial reference proceeding shall be entitled only to limiled discovery, consisting of the exchange between such parties of only the following matters: (i) witness lists; (ii) expert witness designations; (iii) expert witness reports; (iv) exhibits; (v) reports of testing or inspections of the property subject to the Dispute, including but to Aviara Collection Community - CC&Rs 21276-13 -1298005.13 88 6481 limited to, destructive or invasive testing; and (vi) trial briefs. Such parties shall also be entitled to conduct further tests and inspections as provided in Section 17.4.2 above. Any other discovery provided for in the California Code of Civil Procedure shall be permitted by the referee upon a showing of good cause or based on the mutual agreement of the parties to the judicial reference proceeding. The referee shall oversee discovery and may enforce all discovery orders in the same manner as any trial court judge. (g) Limitation on Remedies; Prohibition on Award of Punitive Damages. The referee shall not have the power to award punitive damages. In addition, as further provided below, the right to punitive damages is waived. The referee shall have the power to grant all legal and equitable remedies and award compensatory damages in the judicial reference proceeding. (h) Motions. The referee shall have the power to hear and dispose of motions, including motions relating to provisional remedies, demurrers, motions to dismiss, motions for judgment on the pleadings and summary adjudication motions, in the same manner as a trial court judge, except the referee shall also have the power to adjudicate summarily issues of fact or law including the availability of remedies, whether or not the issue adjudicated could dispose of an entire cause of action or defense. Notwithstanding the foregoing, if prior to the selection of the referee as provided herein, any provisional remedies are sought by the parties to the Dispute, such relief may be sought in the Superior Court of the County in which the Covered Property is located, (i) Rules of Law. The referee shall apply the laws of the State of California except as expressly provided herein including the rules of evidence, unless expressly waived by all parties to the judicial reference proceeding. (j) Record. A stenographic record of the hearing shall be made, provided that the record shall remain confidenfial except as may be necessary for post-hearing motions and any appeals. (k) Statement of Decision. The referee's statement of decision shall contain findings of fact and conclusions of iaw to the extent required by law ifthe case were tried to a judge. The decision of the referee shall stand as the decision of the court, and upon filing ofthe statement of decision with the clerk of the court, judgment may be entered thereon in the same manner as if the Dispute had been tried by the court. (1) Post-hearing Motions. The referee shall have the authority to rule on all post-hearing motions in the same manner as a trial judge. (m) Appeals. The decision of the referee shall be subject to appeal in the same manner as if the Dispute had been tried by the court. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 89 6482 (n) Expenses. The fees and costs ofanyjudicial reference proceeding hereunder shall be equally shared by the parties to the judicial reference proceeding. Each paity to the judicial reference proceeding shall bear ils own attorneys' fees and costs in connection with such proceeding. 17.4.6 AGREEMENT TO DISPUTE RESOLUTION; WAIVERS OF JURY TRIAL AND AWARD OF PUNITIVE DAMAGES. DECLARANT AND BY ACCEPTING A DEED FQR THE COMMUNITY COMMON AREA OR A LOT, AS THE CASE MAY BE, THE COMMUNITY ASSOCIATION AND EACH OWNER AGREE TO HAVE ANY DISPUTE RESOLVED ACCORDING TQ THE PROVISIONS OF THIS SECTION 17.4 AND WAIVE THEIR RESPECTIVE RIGHTS TO PURSUE ANY DISPUTE IN ANY MANNER OTHER THAN AS PROVIDED IN THIS SECTION 17.4. SUCH PARTIES ACKNOWLEDGE THAT BY AGREEING TO RESOLVE ALL DISPUTES AS PROVIDED IN THIS SECTION 17.4, THEY ARE GIVING UP THEIR RESPECTIVE RIGHTS TO HAVE SUCH DISPUTES TRIED BEFORE A JURY AND FURTHER WAIVE THEIR RESPECTIVE RIGHTS TO AN AWARD QF PUNITIVE DAMAGES RELATING TO SUCH DISPUTES, THEREBY GIVING UP ANY RIGHTS SUCH PARTIES MAY POSSESS TO SUCH REMEDIES. THIS SECTION 17.4 SHALL NOT BE AMENDED WITHQUT DECLARANTS PRIOR WRITTEN CONSENT. 17.4.7 Application of Award. Any proceeds arising from any Dispute by seltlemeni, award or olherwise shall be applied in accordance with Section 4.4.7 of this Declaration. 17.4.8 Exceptions to Mediation and Reference; Statutes of Limitation. The procedures set forth in this Section 17.4 shall apply only to Disputes and shall not apply to any action taken by the Community Associafion against Declarant, a Merchant Builder or any Owner for delinquent assessments, which shall be covered by Article 6, or in any acfion involving any bond covered by the provisions of Article 11 ofthe Bylaws. Furthermore, nothing in this Section 17.4 shall be considered lo toll, stay, reduce or extend any applicable statutes of limitation; provided, however, that the Declarant Parties, the Community Association or any Qwner shall be entitled to commence a legal action which in the good faith determinafion of any Declarant Party, the Community Association or Owner is necessary to preserve the Declarant Parties', the Community Association's or an Owner's rights under any applicable statute of limitations, provided that the Declarant Party, Community Association or Owner shall take no further steps in prosecuting the action until it has complied with the procedures described in Sections 17.4.4 and 17.4.5. 17.5 General Enforcement by the City. The City shall have the right, but not the obligation, to enforce those covenants, conditions and restrictions set forth in this Declaration in favor of or in which the City has an inleresl. 17.5.1 Failure of Association to Maintain Common Area Lots and Easements. In the event lhal the Community Association fails to mainlain the Common Area as provided in this Declaration, the City shall have the right, bul nol the duly, to perform the necessary maintenance. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 90 648, 3 If the City elects to perfom such maintenance, the City shall give written nolice to the Community Association, with a copy thereof to the Owners, setting forth wilh particularity the maintenance which the Cily finds to be required and requesting the same be canied oul by the Community Association within a period of thirty (30) days fi^om the giving ofsuch notice. In the event that the Communily Association fails to carry out such maintenance of the Common Area within the period specified by the City's notice, the City shall be entitled to cause such work to be completed and shall be entitled to reimbursement with respect thereto from the Owners as provided herein. 17.5.2 Special Assessments Levied by the City. In the event the City has performed the necessary maintenance to the Common Area, the City shall submil a written invoice to the Communily Association for all costs incuned by the City to perform such maintenance ofthe Common Area. The City shall provide a copy of such invoice to each Owner in the Project, together with a statement that if the Community Association fails to pay such invoice in full within the time specified, the City will pursue collection against the Owners in the project pursuant to the provisions ofthis Seclion. Said invoice shall be due and payable by the Community Association within twenty (20) days of receipt by the Community Association. Ifthe Community Association shall fail to pay such invoice in full within the period specified, payment shall be deemed delinquent and shall be subject to a late charge in an amount equal to six percent (6%) of the amount of the invoice. Thereafter the Cily may pursue collection from the Community Association by means of any remedies available at law or in equity. Without limiting the generality of the foregoing, in addition to all olher rights and remedies available lo the City, the City may levy a special assessment against the Owners of such Lot in the Project benefitted by such work for an equal pro rate share ofthe invoice, plus the late charge. Such special assessment shall constitute a charge on the land and shall be a continuing lien upon each Lot against which the special assessment is levied. Each Owner in the Project hereby vests the City with the right and power to levy such special assessment, lo impose a lien upon their respective Lot and to bring all legal actions and/or lo pursue lien foreclosure procedures against any Owner and his/her respective Lot for purposes of collecting such special assessment in accordance with the procedures set forth in Section 6.4.2 ofthis Declaration. 17.6 Indemnification. The Community Associalion, Individual Projeci Associations and all Owners shall jointly and severally hold the City, its officers, boards and commissions and members thereof its employees and agents harmless and free from any and all liabilities for personal injury and property damage which might arise out of or relate to the condition or the maintenance and repair of the common easements and common facilities, including, but not limited to, any liability for personal injury or property damage arising out ofthe negligence of the City, its officers, boards and commissions and members thereof, its employees and agents. Should City or any of its officers, boards and commissions and members Ihereof its employees or agents be named in any suit or otherwise, whether the same be groundless or nol, arising out of or related to the condiiion or maintenance and repair ofthe common easements and the common faciUties, then the Community Associalion, Individual Project Associations and Owners, as applicable, shall defend the Cily, its officers, boards and commissions and members thereof, its employees and agents, and shall indemnify them for any judgment or settlement rendered against them or any sums paid out in Aviara Collection Commumty - CC&Rs 21276-13 - 1298005.13 91 6484 settlement or olherwise. Notwithstanding anything to the contrary contained herein, the indemnification obligation of each Owner under this Section shall apply only to those liabilities that are a result of such Owner's negligence or wilful misconduct. ARTICLE 18 GENERAL PROVISIONS 18.1 Equitable Servitudes. The provisions of this Declaration shall be deemed covenants, conditions and restrictions and equitable servitudes, which may be enforced by any Owner, an Individual Project Board, or the Community Board, and which shall be liberally construed to effectuate the purpose of Declarant creating a uniform plan for the development and operation of the Covered Property. In the event of a default in the performance of any of the provisions of the Community Governing Documents or the failure of any Ovmer to comply with the Community Governing Documents, such default or failure may be resolved by all appropriate legal proceedings including but not limited to by injunction, abatement of nuisance and damages. 18.2 Severability. In the event that any phrase, clause, sentence, paragraph, section, article or olher portion of this Declaration shall become illegal, null or void or against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining portions of this Declaration shall not be affected thereby and shall remain in full force and effeci. 18.3 Construction. The provisions of this Declaration shall be liberally constmed to effectuate its purpose of creating a uniform plan for the development of a residential community or tract and for the maintenance of the Covered Property. The Article and Section headings, have been inserted for convenience only, and shall not be considered or refened to in resolving questions or interpretation or construction. 18.4 Singular Includes PluraL Whenever the context of this Declaration requires same, the singular shall include the plural and the masculine shall include the feminine. 18.5 Nuisance. The result of every act or omission, whereby any provision, condhion, restriction, covenant, easement, or reservation contained in this Declaration is violated in whole or in part, is hereby declared to be and constitutes a nuisance, and every remedy allowed by law or equity against a nuisance, either public or privale, shall be applicable against every such result, and may be exercised by the Community Association or any Member. Such remedy shall be deemed cumulative and not exclusive. 18.6 No Waiver. Failure by the Community Association or by any Member to enforce any provision of the Community Governing Documents in any certain instance or on any particular Aviara Collection Community - CC&Rs ^ 21276-13 -1298005.13 92 6485 occasion shall nol be deemed a waiver of such right on any such future breach ofthe same or any other such provision. 18.7 Cumulative Remedies. All rights, options and remedies of Declarant, the Community Association, the Owners, Delegates or Mortgagees under this Declaration are cumulative, and no one of them shall be exclusive of any olher. Declarant, the Community Association, the Owners, Delegates and the Mortgagees shall have the right to pursue any one or all of the such rights, oplions and remedies or any other remedy or relief which may be provided by law, whelher or not slated in this Declaration. 18.8 Attorneys' Fees. In the event action is instituted to enforce any of the provisions coniained in this Declaration, the party prevaiUng in such action shall be entified to recover from the other party thereto as part of the judgment, reasonable attorneys' fees and costs of such suit. In the event the Community Association is a prevailing party in such action, the amount of such attorneys' fees and costs shall be an Enforcement Assessment with respect to the Lot involved in the action. 18.9 Exhibits and Schedules. All exhibits and schedules attached hereto are hereby incorporated into this Declaration. 18.10 Notices. Any notice to be given lo an Owner or a Mortgagee or mortgage servicing contractor under the provisions of this Declaration shall be in writing and may be delivered as follows: 18.10.1 Notice to an Owner shail be deemed to have been properly delivered when delivered personally or placed in the firsl class United States mail, postage prepaid, certified, retum receipt requested or by ovemight courier lo the most recent address fumished by such Owner in writing to the Community Association for the purpose of giving notice, or if no such address shall have been fumished, then to the street address of such Owner's Lot. Any notice deposited in the mail within San Diego County, Califomia, shall be deemed delivered forty-eight (48) hours after such deposit or if delivered by an ovemight courier, within one (1) business day after deposit with such overnight courier. In the case of co-Owners, any such nofice may be delivered or sent to any one of the co-Owners on behalf of all co-owners and shall be deemed delivery on all such co-Owners. 18.10.2 Notice to a Mortgagee or its mortgage servicing contractor shall be deemed to have been properly delivered when placed in the first class United States mail, postage prepaid, to the address fumished to the Community Association by such Mortgagee or such contractor for purposes of notice or, if no such address is fumished, to any office ofthe Mortgagee in San Diego County, Califomia or, if no such office located in said County, to any office of such Mortgagee. 18.11 Conflicts Between Community Governing Documents. In the event of a conflict between any provisions of any of the Communily Goveming Documents and any provisions of another Community Management Document, the provisions of the "Controlling Document" named Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 93 6486 below in the first column shall be deemed to supersede the provisions of the Subordinate Document or Documents named below in the second column to the extent of any such conflict. CONTROLLING DOCUMENTS SUBORDINATE DOCUMENTS (a) Declaration Community Articles, Supplementary Declaration, Community Bylaws, Architectural Guidelines, and Community Association Rules (b) Community Articles Supplementary Declaration, Community Bylaws, Architectural GuideUnes and Community Associafion Rules (c) Supplementary Declaration Community Bylaws, Architectural Guidelines and Community Association Rules (d) Communily Bylaws Architectural Guidelines and Community Association Rules (e) Architectural Guidelines Community Association Rules 18.12 Conflicts Between Communitv Governing Documents and Individual Project Association Documents. In the event of any conflict between any provisions of the Community Governing Documents and any provisions ofthe articles of incorporation, bylaws. Individual Project Declaration, architectural standards and mles and regulations of a Individual Project Association, the Community Governing Documents shall be deemed to supersede such Individual Project Association documents to the extent of such conflict. 18.13 Effect of Declaration. This Declaration is made with the intent to estabUsh a general scheme for the use, occupancy and enjoyment of the Covered Property and each and every Lot and portion thereof Declarant makes no wananties or representations, express or implied, as to the binding effect or enforceability of all or any portion ofthis Declaration, or as to the compliance of any of these provisions with public laws, ordinances and regulations applicable thereto. 18.14 Transfers Subject to Declaration. The grant deed conveying any Lot from a Merchant Builder shall provide that the Lot is conveyed subject to this Declaration. 18.15 FHAA^A Approval. After the firsl sale of a Lot to an Owner, other than Declarant or Merchant Builders or Apartment Owners, and for so long as long as there is a Class B Membership, the following actions will require the prior approval of the Federal Housing Administration and/or the U.S. Department of Veteran Affairs if a Phase has been approved by the Aviara Collection Community - CC&Rs 21276-13 -1298005,13 94 6487 Federal Housing Administration and/or the U.S. Departmenl of Veterans Affairs for the purpose of guaranteeing or insuring Mortgages. Area; 18.15.1 Dedication or other transfer of any portion of the Community Common 18.15.2 A merger or consolidation or dissolution of the Community Association; 18.15.3 Establishment ofany righl of first refusal in the Communily Associafion lo purchase or lease a Lot; and 18.15.4 Any amendment or modification of this Declarafion pursuant to the Section of Article 15 enfitled "Amendment;" and 18.15.5 Any annexation or deannexation of Phases to the plan ofthis Declaration that are being or have been approved by the Federal Housing Administration and/or the U.S. Department of Veteran Affairs the purpose of guaranteeing or insuring Mortgages. 18.16 Personal Liability. No member of the Communily Board, or of any committee of the Community Association, or any officer of the Community Association, or any manager, or Declarant or any Merchant Builder or any Apartment Qwner or any agent of Declarant or any Merchant Builder or any Apartment Owner, shall be personally liable lo any Owner, or to any olher party, including the Community Association, for any error or omission of the Community Association, the Community Board, its authorized agents or employees or the Architectural Committee, if such person or entily has, on the basis ofsuch information as may be possessed by him or her, acted in good faith without wilful or intentional misconduct. In addition to the foregoing, as more particularly specified in CaUforaia Civil Code Secfion 1365.7 and any successor statutes or laws, any person who suffers bodily injury, including, bul not limiled to, emotional distress or wrongful death as a result of the tortious acl or omission of a member of the Community Board who resides in the Covered Property either as a tenant or as an Owner of no more than two (2) Lots, and who, at the time ofthe acl or omission, was a "volunteer" as defined in Califomia Civil Code Section 1365.7 and any successor statutes or laws, shall not recover damages from such Community Board member, if such Community Board member committed the act or omission within the scope of his or her Community Association duties, while acting in good faith and without acting in a willful, wanton or grossly negligent manner, provided that all of the requirements of CaUfomia Civil Code Section 1365.7 and any successor statutes or laws, have been satisfied. 18.17 Violation of Law. Any violation of any state, municipal or local law, ordinance or regulation pertaining to the ownership, occupafion or use ofany portion ofthe Covered Property is hereby declared to be a violation of this Declaration and subject to any and all of the enforcement procedures herein set forth. Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 95 6488 18.18 Golf Course Liabilities. By accepting the deed to a DweUing, each Qwner, for himself or herself and his or her invitees, guests, personal representatives, assigns, heirs and next of kin (collectively, the "Owner's Related Parties") hereby (a) acknowledges the potenfial effect on his or her Dwelling of (a) stray golf balls and other events inherent to the activities ofthe Golf Course wilhin the Aviara Premier Collection (the "Golf Course Hazards") and the effect ofthe installalion or growth of trees, shmbs and other landscaping on the Golf Course, (b) the potential for damage to such Owner's Dwelling including, withoui limitation, stucco, tile roofs and windows, attributable to the Golf Course Hazards, (c) any adverse effect on any landscaping installed by an Qwner on the Owner"s Lot arising from or attributable to the use of reclaimed water on the Golf Course by the Owner of the Golf Course, (d) nuisances created by or arising from the Golf Course, including, wilhoul limitation, the landscaping and mainlenance of the Golf Course and the use of fertiUzers and pesticides in connection therewith, noise generated by the use or maintenance ofthe Golf Course and early morning and late night play (including, without Umitation, foul language or raucous noise) or maintenance activities and visibility of lights used in connection with any driving range or clubhouse, if any, installed by the Owner of the Golf Course and (e) assumes the risk ofany property damage, personal injury and/or creation or maintenance of a trespass or nuisance created by or arising in connection with the Golf Course Hazards or any matters described above (collectively the "Assumed Risks") and (f) releases, waives, discharges, and covenants not to sue Declarant, the Community Association, the Community Board, the olher members, the owner and operator of the Golf Course, and each of their respective officers, directors, shareholders, affiliates, agents, employees, successors and assigns, (collectively, the "Released Parties"), and each of them, from any and all liability to the Qwner or Owner's Related Parties for any losses, costs (including, without limitalion, attoraeys' fees), claims, demands, suits, judgments or other obligations arising out of or connected with any of the Assumed Risks, whether caused by the negligence of the Released Parties or olherwise. This release and waiver shall be binding upon each Owner whether or not separately sel forth in the documents of sale and/or deed lo such Owner's Lot. Each Owner, by acceptance of a deed, acknowledges lhat the Golf Course is a privately owned Golf Course and the Community Association has no obligation or right to regulate or control the Golf Course, in any way or manner. Each Owner, by acceptance of a deed, further acknowledges and agrees that Declarant, in making any reference to a Golf Course herein, makes no wananties or representafions that a Golf Course will be a part of the Aviara Premier Collection or lhat, if installed, a Golf Course will continue to be maintained and operated within any portion ofthe Aviara Premier Collection. 18.19 OVERRIDING EXCLUSION ANYTHING CONTAINED IN THIS DECLARATION TQ THE CONTRARY NOTWITHSTANDING, IT BEING INTENDED THAT THIS PROVISION AS THE LAST PROVISION QF THIS DECLARATION CONTROL EVERY QTHER PROVISION HEREIN, THE TERMS AND PROVISIONS OF THIS DECLARATION SET FORTH BELOW DQ NOT APPLY TO, ARE UNENFORCEABLE AGAINST AND ARE DEEMED DELETED HEREFROM AS THEY RELATE TQ THE LOT QR LOTS COMPRISING THE APARTMENT AREA AND THE OWNER OF SUCH LOT OR LOTS: (i) ARTICLE 9; (ii) SECTIONS 5.2.1, 5.2.4, AND 10.3. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 96 6489 18.20 Governing Law. This Declarafion shall be govemed by and constmed under the laws of the State of California. IN WITNESS WHEREOF, Declarant has executed this instmment as of the day and year first herein above written. DECLARANT: BREHM-AVIARA III DEVELOPMENT ASSOCIATES, L.P., a Delaware limited partnership By: Brehm-Aviara Group, LLC, a Califomia limited liability company, its General Partner By: The Brehm Companies, LLC, a California limited liability company. Its Managing Member By: Name: Forrest W. Brehm Titie: President Aviara Collection Community - CC&Rs 21276-13 -1298005.13 97 6490 SIGNATURE OF PROPERTY OWNERS AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Umited partnership By: Aviara Land Company, a Delaware corporation, its general partner By: P 4r/y., Name: Tifie: JEFFERSON AT AVIARA, L.P., a Delaware limiled partnership By: Jefferson Aviara, LLC, a Delaware limited liability company, ils sole general partner. By:. Name:_ Titie: Aviara Collection Community - CC&Rs 21276-13 -1298005,13 "8 6491 SIGNATURE OF PRQPERTY OWNERS AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By: Aviara Land Company, a Delaware corporation, its general partner Bv: Name: Title: JEFFERSON AT AVIARA, L.P., a Delaware limited partnership By: Jefferson Aviara, LLC, a Delaware limited liabiUty company, its sole general partner. Name: Scot M McLaughlin Vice President Titie: „ Avia;a Collection Community - CC&Rs 21276-13 - 1298005.13 98 STATE OF CALIFORNIA ) 6492 COUNTY OF Orn ? Okijo ) On NI CCvi ^5 19^, befbre me.J.i.'cv]cU| -A . KSraf'^ a Notary Public in and for said State, personally appeared " Ll • i.'^>r€. i , personally known lo me,(ar-prQVfi.dJXL.me on the basis of satTsfaetepy-evidenc©) to be the person^js)whose name^) is/^ subscribed to the within instmment, and acknowledged lo me lhat he/sjj^/tji^ executed the same in his/|i^/tlj4r authorized capacity(y8(^), and that by his/I>ei/'tlj8it:,signature(J*:j on the instrumenl, the person^, or the entity upon behalf of which the personj^ acted, executed the instmment. WITNESS my hand and official seal. j A E:OY J. JCNE.5 Commis,5iOP, * 1147344 1^ Signature /., L -'Z il^'f I L- , / / L ^ ^^J^ VyCcnm. Expires Ju!21,2001 Q^si^^^ Notoy Public - Cai:fa ^<^Sf^ ^V Ccnm. Expires JU! 2 'WWW "IW "nw»iMi"»aii"'ww' w nia Aviara Collection Community - CC&Rs 21276-13 - 1298005,13 STATE QF CALIFORNIA COUNTY OF a^M^^gbp 6493 ) ss. 19 a Notary Public in and for said Stale, personally appeared before me, MM Wi^M for said Stale, personally a] personally known lo me (or proved lu uie uil fiie basi!>' of salisfoetory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged lo me that he/she/they executed the same in his/her/their authorized capacity(ies), and lhat by his/her/their signalure(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, execuled the instrument. WITNESS my hand and official seal. Signature, TOSHA AQUINO-BRIGHT I; Comm. 11161516 (A NOTARY PUBLIC CALlfORNIA ^ Sin Oiego Counly ^ My Comm. txpires Nov 13 2001 ^ Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 STATE OF eAfeiFORNfA ) ^ ) ss. COUNTY OF / ^/hL£,4^ ) 6454 Qn /3 \9fr_, before mef^Y^^^. a Notary Public in'andfor said State, personally appeared > T H J..-^/t^4 i^/f.o/\-'J , personally known lo me_(or proved to me on the basis c i" satisfactory evidence) lo be the person(s) whose name(s) is/are subscribed lo the wilhin instrument^ and acknowledged to me that he/she/they execuled the same in his/her/their authorized capacity(ie3 /, and lhat by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf o\ which the person(s) acted, executed the instrument. WITNESS my hand and official seal. >-''^^^ ,,,.-7 ^ ' , Signalure '^J^Ut^ Cy/lri^-tjn,^ :.ooooooooooooocoooooooocoooooc» ,4v:?:!$t;^ SHERRY GOODWIN 8 T;' ':I Notary Public. State of Texas 8 \ ..i-."-//My Commissioti Exp. 08-10-2002 8 * .'^ Q iOOOOOOOOOOOOOOOOOOOOCCOOOOOO' Aviara Collection Community - CC&Rs 21276-13 - 1298005,13 SUBORDINATION AGREEMENT 64^5 The undersigned, as holder of the beneficial interest in (i) that certain Deed of Tmst recorded in the Office of the County Recorder of San Diego County on December 15, 1997, as File/Page No. 1997-0634773, (ii) that certain Deed of Tmst recorded in the Qffice ofthe County Recorder of San Diego County on December 15, 1997, as File/Page No. 1997-0634789, (iii) that certain Deed of Tmst recorded in the Qffice of the County Recorder of San Diego County on August 13, 1997, as File/Page No. 1997-0388448, and (iv) lhat certain Deed of Tmst recorded in the Qffice of the County Recorder of San Diego County on May 13, 1998, as File/Page No. 1998-0281487, which Deeds of Tmst encumber all or a porfion of the real property covered by the Declaration of Covenants, Conditions and Restrictions for the Aviara Premier Collection ("Declaration"), does hereby intentionally and uncondifionally subordinate the lien of said Deeds of Tmst to the Declaration recorded concurrently herewith and to which this Subordination Agreement is altached. Dated: S /(p/^^ PICAL HOUSING ASSOCIATES, L.P., a California limited partnership By: The Pmdential Insurance Company of America, a New Jersey corporation, its General Partner By: IHP Investment Advisors LLC, a Delaware limited liability company, its Attomey-in-fact By: Institutional Housing Partners I LP, a California limiled partnership, ils Sole Member By: Institutional Housing Partners, Inc., a CaUfomia corporaiion, ils General Partner Name:?HtU L. RA)5H lis: Sl/f By , Name : QreMQlA. J- Htxhcctc Its: \/icc.Tre-»ide.in4^ Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 STATE QF CALIFORNIA ) 64^8 ) ss. CQUNTY QF '"'n.* ^ 'V 1(" HI . ) On •" >\\[-\ \ \ before me, personally appeared ' < i \ -' X \ ' } \ ',. \ i ,\ ' 'i i" . • ^ -. i i \ \ \ \- personally known to me (or proved lo me on the basis ofsatisfactory evidence) to be the person whose name(s) are/is subscribed lo the wilhin instmment and acknowledged lo me that he/she/they execuled the same in his/her/their authorized capacity, and that by his/her/their signalure(s) on the instmment the person(s), or the entity upon behalf of which the person(s) acted, execuled the instrument. WITNESS my hand and official seal. ' \ , I Signalure \ v: I , ' V ' \ \\. V i^EAL) RENEE AUSTIN > Comm. # 1143499 NOTARY PUBLIC CALIFORNIA vl San Oiejo County ^ My Comm. fxpiies June 26, 2001 i Aviara Collection Community - CC&Rs 21276-13 - 1298005,13 rmr KJG ^-zi kJD^ crri-TI bCPJt- 1 r' KLL-FI P.2 SUBORDINATION AGREEMENT 6497 The undersigned, as holder of the beneficial interest in (i) that certain Deed of Tmst recorded in the Office of the Coimty Recorder of San Diego County on December 15, 1997, as File/Page No. 1997-0634772, (ii) that certain Deed of Tmst recorded in the Office ofthe County Recorder of San Diego County on December 15,1997, as File/Page No. 1997-0634788, (iii) that certain Deed of Tmst recorded in the Office of the County Recorder of San Diego County on August 13, 1997, as File/Page No, 1997-0388447, (iv) that certain Deed of Tmst recorded in the Office ofthe County Recorder of San Diego County on December 15,1997, as File/Page No. 1997-0634783, and(v)that certain Deed of Tmst recorded in the Office of the County Recorder of San Diego County on July 31,1998, as File/Page No, 1998-0481979 which Deeds of Tmst encumber all or a portion of fiie real property covered by the Declaration of Covenants, Conditions and Restrictions for tlie Aviara Premier Collection ("Declaration"), does hereby intentionally and unconditionally subordinate fiie lien of said Deeds of Tmst to the Declaration recorded concurrently herewith and to which this Subordination Agreement is attached. Dated: AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By: Aviara Land Company, a Delaware corporation, its general partner By:__ Name:, Title: J STATE OF CALIFORNIA COUNTY OF 8^ UfejQ On Mt\y 1 ) ss. ^ -TOlA AfiOlKJo ^6^r before me.'^personaliy appeared jjersonally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the pcrson(s) acted, executed the instrument. WITNESS my hand and ofpcial seal Signature (SEAL) TOSHA AQUINO-BRIGHT Comm,#1161516 M NOTARY PUBLIC CALIFORNIA JjJ San Diego Counly Aviara Collection Community - CC&RE 21276-13- 1298005,13 6458 LIST OF EXHIBITS Exhibit "A-l" Description of Declarant's Property Exhibit "A-2" Description of Property Ovmed by Aviara Land Associates Exhibit "A-3" Description of Property Owned by Jefferson Exhibit "B" Annexable Property Exhibit "C" Coastal Zone Restrictions Exhibit "C-l" Coastal Resources Areas Exhibit "D" Community Association Maintenance Responsibilities Exhibit "E" Community Association Rules Exhibit "F" Fire Suppression Zones Exhibit "G" Description of Golf Course Exhibit "H" Recreational Vehicle Site Exhibit "I" Description of Resort/Hotel Property Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 EXHIBIT "A-l" g^^^ DESCRIPTION OF BREHM-AVIARA PROPERTY PARCSL At LOTS 3 AND 4 OP CITY OF CARLSBAD TRACT NO. 92-3 AVIARA PHASE III tJTNIT NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ACCORDING TO MAP THEREOF NO. 13434, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 23, 1997. PARCBL B-1I LOTS 10 THROUGH 36 INCLUSIVE AND 44 THROUGH 51 INCLUSIVE OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 2, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13462, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, AUGUST 12, 1997. PARCSL B-2I LOT 37 AND A PORTION OP LOT 38, ALL OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 2, IN THE CITY OF CARLSBAD, COUNTY OF SAM DIEGO, STATE OP CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13462, FILED IN THE OFFICE OF THE COUNTY RECORDER OP SAN DIEGO, AUGUST 12, 1997, MORE PARTICtJLARLY DESCRIBED AS -'• FOLLOWS: _ BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 37, SAID CORNER BEING OM THE WESTERLY RIGHT OF WAY LINE OF MALLEE STREET ACCORDING TO SAID MAP; THENCE ALONG SAID RIGHT OF WAY LINE SOUTH 00«19'29'' WEST 84.00 FEET TO A POINT ON A LINE THAT IS 4.00 FEET SOUTHERLY OP AND PARALLEL TO THE NORTH LINE OF SAID LOT 38; THENCE ALONG SAID PARALLEL LINE MORTH 89»40'31" WEST 125.00 FEET TO A POINT OM THE WESTERLY LINE OF SAID LOT 38, SAID WESTERLY LINE BEING THE EASTERLY LINE OF LOT 50 OF SAID MAP; THENCE ALONG SAID EASTERLY LINE NORTH 00«19'29" EAST 84.00 FEET TO THE NORTHWEST CORNER OF SAID LOT 37; THENCE ALONG THE NORTHERLY LINE OF SAID LOT 37 SOUTH 89»40'31'' EAST 125.00 FEET TO THE TRUE POINT OP BEGINNING. PARCSL B-3t A PORTION OF LOTS 38 AND 39 OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 2, IM THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OP CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13462,. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, AUGUST 12, 1997, MORE PARTIOJLARLY DESCRIBED AS FOLLOWS: COMMENCING AT THB NORTHEAST CORNER OF SAID LOT 38; SAID CORNER BEING ON THE WESTERLY RIGHT OP WAY LINE OF MALLEE STREET ACCORDING TO SAID MAP; THENCE ALONG SAID RIGHT OF WAY LINE SOUTH 00*19'29" WEST 4.00 FEET TO A POINT ON A LINE THAT IS 4.00 FEET SOUTHERLY OP AND PARALLEL TO THE NORTH LINE OF SAID LOT 38 AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID RIGHT OF WAY LINE SOUTH 00''19'29" WEST 60.20 FEET TO A POINT OM A LINE THAT IS 3.20 FEET SOUTHERLY AND PARALLEL WITH THE NORTH LINE OF SAID LOT 39; THENCE ALONG SAID PARALLEL LINE NORTH 89»40'31" WEST 125.00 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT 39, SAID WESTERLY LINE BEING THE EASTERLY LINE OF LOT SO OF SAID MAP; THENCE ALONG SAID EASTERLY LINE NORTH 00"19'29" 60.20 FEET TO A POINT ON A LIME THAT IS 4.00 FEET SOUTHERLY AND PARALLEL TO THE NORTH LINE OF SAID LOT 38; THENCE ALONG SAID PARALLEL LINE SOUTH 89»40'31" EAST 125.00 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT "A-l" PARCEL B-4i 65oo A PORTION OF LOTS 3 9 AND 40 OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 2, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13462, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, AUGUST 12, 1997, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 39, SAID CORNER BEING ON THE WESTERLY RIGHT OF WAY LINE OF MALLEE STREET ACCORDING TO SAID MAP; THENCE ALONG SAID RIGHT OF WAY LINE SOUTH 00<»19'29" WEST 3.20 FEET TO A POINT ON A LINE THAT IS 3.20 FEET SOUTHERLY OF AND PARALLEL TO THE NORTH LINE OF SAID LOT 3 9 AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID RIGHT OF WAY LINE SOUTH OCIS'29" WEST 61.00 FEET TO A POINT ON A LINE THAT IS 3.20 FEET SOtTTHERLY AND PARALLEL WITH THE NORTH LINE OF SAID LOT 40; THENCE ALONG SAID PARALLEL LINE NORTH 89''40'31" WEST 125.00 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT 40, SAID WESTERLY LINE BEING.THE EASTERLY LINE OP LOT 50 OF SAID MAP; THENCE ALONG SAID EASTERLY LINE NORTH 00»19'29" EAST 61.00 FEET TO A POINT ON A LINE THAT IS 3.20 FEET SOUTHERLY AND PARALLEL TO THE NORTH LINE OF SAID LOT 39; THENCE ALONG SAID PARALLEL LINE SOtTTH 89«'40'31" EAST 125.00 FEET TO THE TRUE POINT OF BEGINNING. PARCBL B-5< A PORTION OF LOTS 40 AND 41 OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 2, IN THE CITY OF CARLSBAD. COUNTY OF SAN DIEGO, STATE OF CALIFORNIA^, ACCORDING TO MAP THEREOF NO. 13462, FILED IM THE OFFICE OP THE COUNTY RECORDER OF SAN DIEGO, AUGUST 12, 1997, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 40, SAID CORNER BEING ON THE WESTERLY RIGHT OF WAY LINE OF MALLEE STREET ACCORDING TO SAID MAP; THENCB ALONG SAID RIGHT OF WAY LINE SOUTH 00»19'29" WEST 3.20 FEET TO A POINT ON A LINE THAT IS 3.20 FEET SOUTHERLY OF AND PARALLEL TO THE NORTH LINE OP SAID LOT 40 AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID ftlGHT OF WAY LINE SOUTH 00«19'29" WEST 60.00 FEET TO A POINT ON A LINE THAT IS 2.20 FEET SOUTHERLY AND PARALLEL WITH THE NORTH LINE OF SAID LOT 41; THENCE ALONG SAID PARALLEL LINE NORTH 89»40'31" WEST 125.00 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT 41, SAID WESTERLY LINE BEING THE EASTERLY LINE OF LOT 50 OF SAID MAP; THENCE ALONG SAID EASTERLY LINE NORTH 00»19'29" EAST 60.00 FEET TO A POINT OM A LINE THAT IS 3.20 FEET SOtmiERLY AND PARALLEL TO THE NORTH LINE OF SAID LOT 40; THENCE ALONG SAID PARALLEL LINE SOUTH 89»40'31" EAST 125.00 FEET TO THE TRUE POINT OF BEGINNING. ' PARCBL B-6< A PORTION OF LOTS 41 AND 42 OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 2. IN THE CITY OF CARLSBAD, COVinY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13462, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEC30, AUGUST 12, 1997, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 41, SAID CORNER BEING ON THE WESTERLY RIGHT OF WAY LINE OF MALLEE STREET ACCORDING TO SAID MAP; THENCE ALONG SAID RIGHT OF WAY LINE SOUTH 00»19'29" WEST 2.20 FEET TO A POINT ON A LINE THAT IS 2.20 FEET SOUTHERLY OF AND PARALLEL TO THE NORTH LINE OF SAID LOT 41 AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID RIGHT OF WAY LINE SOUTH 00 0 19'29" WEST 60.40 FEET TO A POINT ON A LINE THAT IS 1.60 FEET SOUTHERLY AND EXHIBIT "A-l" PARALLEL WITH THE NORTH LINE OF SAID LOT 42; THENCE ALONG SAID PARALLEL LINE NORTH 89»40'31" WEST 125.00 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT 42, SAID WESTERLY LINE BEING THE EASTERLY LINE OF LOT 50 OF SAID MAP; THENCE ALONG SAID EASTERLY LINE NORTH 00«19'29" EAST 60.40 FEET TO A POINT ON A LINE THAT IS 2.2 0 FEET SOUTHERLY AND PARALLEL TO THE NORTH LINE OF SAID LOT 41; THENCE ALONG SAID PARALLEL LINE SOUTH 89''40'31" EAST 125.00 FEET TO THE TRUE POINT OF BEGINNING. PARCBL B-7: A PORTION OF LOTS 42 AND 43 OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 2, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13462, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, AUGUST 12, 1997, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 42, SAID CORNER BEING ON THE WESTERLY RIGHT OF WAY LINE OF MALLEE STREET ACCORDING TO SAID MAP; THENCE ALONG SAID RIGHT OF WAY LINE SOUTH 00''19'29" WEST 1.60 FEET TO A POIMT OM A LINE THAT IS 1.60 FEET SOUTHERLY OF AND PARALLEL TO THE NORTH LINE OF SAID LOT 42 AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID RIGHT OP WAY LINE SOUTH 00019-29" WEST 60.20 FEET TO A POINT ON A LINE THAT IS 0.80 FEET SOUTHERLY AND PARALLEL WITH THE NORTH LINE OF SAID LOT 43; THENCE ALONG SAID PARALLEL LINE NORTH 89»40'31" WEST 125.00 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT .43, SAID WESTERLY LINE BEING THE EASTERLY LINE OF LOT 50 OF SAID MAP; THENCE ALONG. SAID EASTERLY LINE NORTH 00'»19'29" EAST 60.20 FEET TO A POINT ON A LINE THAT IS 1.60 FEET SOUTHERLY AND PARALLEL TO THE NORTH LINE OF SAID LOT 42; THENCE ALONG SAID PARALLEL LINE SOUTH 89'»40'31" EAST 125.00 FEET TO THE TRUE POINT OF BEGINNING. PARCBL B-8I A PORTION OF LOT 43 OF CITY OP CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UMIT 2, IN THE CITY OF CARLSBAD, COtJNTY OP SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13462, FILED IN THE OFFICE OP THE COUNTY RECORDER OP SAN DIEGO, AUGUST 12, 1997, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 43; THENCE ALONG THE EASTERLY LINE OF SAID LOT SOtJTH 00»19'29" WEST 0.80 FEET TO A POINT OM A LIME THAT IS 0.80 FEET SOUTHERLY OF AND PARALLEL TO THE MORTH LINE OF SAID LOT 43 AMD THE TRIIE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID EASTERLY LINE SOUTH 00'19'29" WEST 61.20 FEET TO THE SOUTHEAST CORNER OF SAID LOT 43; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 43 NORTH 89<'40'31" WEST 125.00 FEET TO THE SOUTHWEST CORNER OF SAID LOT 43, SAID CORNER BEING A POINT ON THE EASTERLY LINE OF LOT 50 OF SAID MAP; THENCE ALONG THE WESTERLY LINE OF SAID LOT 43 AND THE EASTERLY LINE OF SAID LOT 50 NORTH 00»19'29" EAST 61.20 FEET TO A POINT ON A LINE THAT IS 0.80 FEET SOUTHERLY AND PARALLEL TO THE NORTH LINE OF SAID LOT 43; THENCE ALONG SAID PARALLEL LINE SOUTH 89"40'31" EAST 125.00 FEET TO THE TRUE POINT OF BEGINNING. PARCBL Cl LOTS 52 THROUGH 80 INCLUSIVE OP CITY OP CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 3, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OP CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13463, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, AUGUST 12, 1997. EXHIBIT "A-l" PARCBL Dl LOTS 81 THROUGH 103 INCLUSIVE OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 4, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13464, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, AUGUST 12, 1997. PARCEL E: LOTS 104 THROUGH 137 INCLUSIVE OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 5, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13465, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, AUGUST 12, 1997. PARCBL Fl LOTS 138 THROUGH 139 OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA PHASE III UNIT NO. 6, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13512, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 10, 1997. EXCEPTING FROM SAID LOT 139 THAT CERTAIN BUILDING, AND THE FURNITURE, FIXTURES AND EQUIPMENT THEREIN AND THEREON, LOCATED UPON THE PROPERTY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 139; THENCE SOUTH 13"06'47" EAST 375.65 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 44»58'02" EAST 94.54 FEET; THENCE SOUTH 45"'01'58" WEST 61.10 FEET; THENCE NORTH 44'S8'02" EAST 94.54 FEET; THENCE 45''01'S8" EAST 61.10 FEET TO THE TRUE POINT OF BEGINNING. PARCBL Ql LOTS 140 THROUGH 149 INCLUSIVE OP CITY OP CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 7. IN THE CITY OF CARLSBAD,. COUNTY OF SAN DIEGO, STATE OP CALIFORNIA, ACCORDING TO MAP THEREOF MO. 13513. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, DECEMBER 10, 1997. PARCEL H: LOTS 150 AND 151 OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA, PHASE III, UNIT 7 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13513, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO DECEMBER 10, 1997. 65o^ EXHIBIT "A-l" EXHIBIT "A-2" DESCRIPTION OF DECLARANT'S PROPERTY PARCEL At LOTS 5, 6, 7, 8, AND 9 OF CITY OF CARLSBAD TRACT NO. 92-3 AVIARA PHASE III UNIT NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13434, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 23, 1997. EXHIBIT "A-2" 6504 EXHIBIT "A-3" DESCRIPTION OF PROPERTY OWNED BY JEFFERSON PARCEL At LOTS 1 AND 2 OP CITY OF CARLSBAD TRACT NO. 92-3 AVIARA PHASE HI UNIT NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OP CALIFORMIA, ACCORDING TO MAP THEREOF NO. 13434, FILED IM THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 23, 1997. EXHIBIT "A-3" 6505 EXHIBIT "B" ANNEXABLE PROPERTY LEGAL DESCRIPTION POR APNt 215-040-03 THE EAST HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER, SECTION 27, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES C30VERNMENT StmVEY. LEGAL DESCRIPTION FOR APMi 215-040-04 THE NORTH HALF OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 27, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF.PARCEL 2: LBGAL OESCRIPTIOM FOR APNt 215-040-05 THE SOUTH HALF OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 27, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAM DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF. LBGAL DBSCRIPTIOM FOR APMi 215-040-08 AMD 215-040-10 PARCEL 1: THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OP SECTIOM 27, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COtniTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY, APPROVED APRIL 21, 1890. PARCEL 2: THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 27, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATB OF CALIFORNIA, ACCORDING TO THE UNITED STATES GOVERNMENT SimVEY APPROVED APRIL 21, 1890. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 EXHIBIT "B" 6506 LEGAL DBSCRIPTIOM FOR APMi 215-080-04 THE EAST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF. LBGAL DBSCRIPTIOM FOR APMi 215-080-19 THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN. IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE tWITED STATES GOVERNMENT SURVEY. EXCEPTING THEREFROM THE NORTH ONE-HALF OF THE WEST ONE-HALF OP THE SOUTH ONE-HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTIOM 22, TOWNSHIP 12 SOtTTH, RANGE 4 WEST. ALSO EXCEPTING THEREFROM A TWENTY FOOT STRIP OF LAND LYING SOUTHERLY, PARALLEL AND ADJACENT TO THE SOUTH LINE OF THE NORTH HALF OF THE WEST HALF OF THE SOUTH" HALF OF THE SOUTH-WEST QUARTER OF FRACTIONAL SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST SAN BERNARDINO MERIDIAN, SAN DIEGO COUNTY, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY. LBGAL DBSCRIPTIOM FOR APMi 215-080-21 PARCEL 1: THE NORTH HALF OF THE WEST HALF OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTIOM 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM THE WESTERLY 257 FEET OF THE NORTHERLY 130 FEET OF THE SOITTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 22. THE AFOREMENTIONED 257 FOOT AND 180 FOOT DIMENSIONS BEING MEASURED ALONG AND PARALLEL TO THE WESTERLY AND NORTHERLY LINES, RESPECTIVELY OF SAID SOITTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 22. ALSO EXCEPTING THEREFROM THE EASTERLY 2 87 FEET OF THE WESTERLY 544 FEET OF THE NORTHERLY 180.66 FEET OF THE SOUTH HALF OF THE SOITTHWEST QUARTER OP THE SOUTHEAST QUARTER OF SAID SECTION 22. EXHIBIT "B" 650 7 THE DIMENSIONS BEING MEASURED ALONG AND PARALLEL TO THE WESTERLY AND NORTHERLY LINES, RESPECTIVELY, OF SAID SOUTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 22. PARCEL 2: THE NORTHERLY 2 0 FEET OF THE SOUTH HALF OF THE WEST HALF OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF. SAID 20.00 FOOT STRIP LYING SOUTHERLY, PARALLEL AND ADJACENT TO THE SOUTH LINE OF PARCEL 1 ABOVE. LBGAL DBSCRIPTIOM FOR APMi 215-070-04 THE NORTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOP. LBGAL DESCRIPTION FOR APMi 215-070-06 THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATB OF CALIFORNIA. EXHIBIT "B" 65o^ EXHIBIT "C" COASTAL ZONE RESTRICTIONS The Coastal Zone Restrictions referred to in the Master Declaration to which this Exhibit is attached are the following: 1. Deed Restriction (Open Space) recorded April 14, 1989, Recorder File No. 89- 196176 in the Qfficial Records of San Diego Counly, Califomia. 2. Deed Restricfion (Trail) recorded April 14, 1989, Recorder File No. 89-196178 in the Official Records of San Diego County, Califomia. Aviara Collection Community - CC&Rs 21276-13 - 1298005.13 EXHIBIT "C" EXHIBIT "C-l" COASTAL RESOURCES AREAS 6509 4/27/99 COMMUNITY ASSOCIATION COASTAL RESOURCE AREAS EXHIBIT G1 NOTES: 1. THIS EXHIBIT IS SCHEMATIC ONLY AND WAS ASSEMBLED FROM AVAILABLE DATA THE ORIGINATOR AND OR DEVELOPER ACCEPTS NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. Z THE AREAS AND BOUNDARIES SHOWN ON THIS PLAN ARE APPROXIMATE AND ARE FOR GRAPHIC PRESENTATION ONLY. ACTUAL BOUNDARIES SHALL BE ESTABLISHED BASED ON APPROVED FINAL MAPS _ AND OR THE MASTER PLAN. FXHtRIT "r> lit AVlARA PREMIER COLLECTION EXHIBI 1 "U" 5/5/99 COMMUNITY ASSOCIATION MAINTENANCE RESPONSIBIUTIES EXHIBIT "D" EXHIBIT "E" 8^ COMMUNITY ASSOCIATION RULES AVIARA PREMIER COLLECTION ASSOCIATION GUIDELINES FOR COMMUNITY LIVING RULES AND REGULATIONS 1999 21276-00013; 1361687.3 EXHIBIT "E" AVIARA PREMIER COLLECTION ASSOCIATION RULES & REGULATIONS Carisbad, California 92009 These Rules and Regulations are intended to supplement the Declaration of Covenants, Conditions and Restrictions for the Aviara Premier Collection ("Declaration"). This manual is being supplied to help residents maintain and enhance home values and to provide simple guidelines for living at the Aviara Premier Collection without infiinging on the rights of neighbors. Owners must supply tenants with a copy of the Rules and Regulations. These Rules and Regulations are applied to all members, renters and residents of the Aviara Premier Collection and their guests. Some individual sub-associations have additional mles which apply specifically to their communities. These mles and regulations may be amended, modified or changed, in the sole discretion of the Board of Directors ofthe Aviara Premier Collection Association. 21276-00013: 1361687.3 65i 3 THE AVIARA PREMIER COLLECTION ASSOCIATION RULES AND REGULATIONS I. DEFINITIONS "Aviara Premier Collection," "Lot," "Dwelling Unit" and "Community Board" shall have the same definition as set forth in the Declaration. "Declarafion" refers to the Declarafion of Covenants, Condifions and Restricfions for the Aviara Premier Collection Association. "Residence" refers to any residenfial Lot or Dwelling Unit in the Aviara Premier Collecfion. "Resident" refers to any owner, tenant, etc. who lives within any Residence in the Aviara Premier Collection. "Common Area" refers to any property designated for the primary common use and benefit of all owners of Lots and Dwelling Units in the Aviara Premier Collection, "Architectural Committee" refers lo the Architectural Committee for the Aviara Premier Collection. II. COMMON AREA RULES Coastal chaparral, eucalyptus groves, oak groves and similar wildlife habitats are preserved between and amongst the neighborhoods of the Aviara Premier Collection. These areas have been protected and preserved fi-om the impacts of intensified use ofthe property by way of an Open Space Deed Restricfion Agreement belween Aviara and the Califomia Coastal Commission on behalf ofthe State of Califoraia. The open space deed restriction prohibits any alteration of landforms, removal of vegetation or the erection of stmctures of any type without written approval of the Califomia Coastal Commission. Bicycles, tricycles, skateboards and other wheeled vehicles and toys are prohibited fi"om being left in the common area, including lawns, landscaping, recreational areas and deed restricted open space. Pedestrians always have the righl of way on walkways. Walkways shall not be used for storage of items. Willful damage to the common areas wilhin the community is prohibited. The Community Board has the right to hold an owner liable for damage to the common area property as a result of negligence, carelessness, misuse or violation of the Declarafion or mles by a Resident, the owner's family, tenants, or guests. 21276-00013; 1361687.3 III. PROPERTY RULES No temporary stmctures other than those permitted by the Declaration during development and sale ofthe Lots or Dwelling Units by Declarant or a builder shall be allowed on any portion of the community unless approved by the Architectural Committee for constmction or reconstmction. Hanging, drying or airing of clothes, towels, mgs, etc. in windows or outside is prohibited. No clotheslines are permitted within the Aviara Premier Collection that can be viewed fi-om other Lots or the Common Area. No lumber, grass, shmb or tree clippings or plant waste, metals, bulk materials, scrap, refuse or trash or unsightly articles shall be kept, stored or allowed to accumulate on any lot except within an enclosed stmcture or otherwise appropriately screened fi-om view. Garbage and trash shall be kept in closed, sanitary containers at all times. Garbage containers shall not be placed out prior to 6 p.m. on the night prior to scheduled pickup and must be removed as soon as possible, but no later than 12 hours after collection. Holiday decorations are to be removed within 30 days of the holiday. No landscaping or improvement shall be allowed to fall into disrepair so as to adversely affect the community or any other Lot or Dwelling Unit. There shall be no interference with the established drainage pattem over any part ofthe community, unless approved by the Architectural Committee Residents should be sensitive to neighbors and not disturb others with unreasonable loud noises. IV. SIGNS No signs are allowed for display to the public view in any Lot or Common Area with the exception ofa single "for sale" sign or "for lease" sign on the Owner's Lot which is of customary and reasonable dimensions, not to exceed 18" x 24", and of a professional quality on weather resistant material. "Sold" signs may not be displayed for more than 30 days after the sale of a Lot or Dwelling Unit. No signs over thirty inches (30") above the street level may be placed or permitted to encroach within site distance corridor areas as described on the parcel map. 21276-00013; 1361687.3 V. BASKETBALL HOOPS All permanent basketball hoops and courts must be installed so that they are not visible fi-om the street and must be approved by the Architectural Committee. All portable basketball hoops must be approved by the Architectural Committee. Approved portable basketball stands must be removed from view each day by no later than dusk. VI. HAZARDOUS ACTIVITIES No firearms shall be discharged within the Aviara Premier Collection. No open fires shall be lit or permitted within the Aviara Premier Collection, except in a contained barbecue unit while attended and in use for cooking purposes or an outdoor fire pit approved by the Architectural Committee. It is the Resident's responsibility to comply with all applicable City codes. VII. VEHICLE RULES Vehicle repairs ofany kind are prohibited outside of any garage, except minor repairs such as changing a tire, etc. Changing vehicle oil or any automotive fluid is prohibited on any street within the Aviara Premier Collection. No trailer, camper, boat, recreational vehicle ("RV"), or similar vehicle or equipment may be stored, maintained or repaired on any street, driveway, or parking area within the Aviara Premier Collection unless placed or maintained within an enclosed garage or otherwise screened from view in a manner approved by the Architectural Committee. The parking and storage of RV's and boats are limited to the RV Site. Each Resident using the RV Site will indemnify and hold harmless the Declarant, the Aviara Premier Collection Association, and their respective directors, officers, employees, and representatives fi-om and against any and all damages or injuries to persons or properties arising out of the ownership use and/or storage ofa RV within the RV Site. Any user ofthe recreational vehicle storage facilifies must agree to all mles and regulations and sign the Use Agreement and Release. Copies of the RV Storage Rules and Regulations and the Use Agreement and Release can be obtained fi-om the management company. Vehicles parked within driveways may nol block any portion of the sidewalk or extend into the street. 21276-00013; 13616873 6 516 No off-road or non-street-legal motor vehicle shall be operated within the Aviara Premier Collection. Leaks firom vehicles in the street and on driveways must be cleaned up within a reasonable time. Owners are responsible for their guests' and tenants' vehicles. No vehicle shall be parked in a manner which blocks a driveway approach to any Lot or Dwelling Unit. No vehicle may be parked on any private street for a period in excess of 72 consecutive hours. VIII. FINE SCHEDULE The Declaration establishes a procedure whereby homeowners who violate mles are assessed a fine, Before the fine is levied homeowners are given fourteen (14) days to correct the violation. Failure to do so results in a hearing before the Community Board. The Community Board will establish a schedule of fines for various violafions of the Declarations or the Bylaws, which schedule may be amended from time to time. Fines shall be in addition to an assessment equal to any applicable cost of repair. Additional fines for continued or repeated violations may be double/triple the amount ofthe initial fine for each month the violation continues or is repeated. 21276-00013; 1361687.3 'I Q PLANNING AHEA •151 OPEN SPi^CE LOTS "Sil BOUNOARY OP THE fli FIRE SUPPRESSION ZONE ( n» Suppranhm Zona la batwMvi cymbd and adjacent loaJJeiillal lota.) MAimtNANO l£Va 4/27/99 FIRE SUPPRESSION BOUNDARY NOTES: 1. THIS EXHIBIT IS SCHEMATIC ONLY AND WAS ASSEMBLED FROM AVAILABLE DATA THE ORIGINATOR AND OR DEVELOPER ACCEPTS NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATiON. Z THE AREAS AND BOUNDARIES SHOWN ON THIS PLAN ARE APPROXIMATE AND ARE FOR GRAPHIC PRESENTATION ONLY. ACTUAL BOUNDARIES SHALL BE ESTABLISHED BASED ON APPROVED FINAL MAPS AND MASTER PLAN. 3. FIRE SUPPRESSION BOUNDARIES ARE APPROXIMATE. ACTUAL BOUNDARIES MAY BE MODIFIED BY THE FIRE DEPARTMENT. AVIAR^ PREMIER COLLECTION > 33 > -n 60' OVERALL FIRE SUPPRESSION ZONE ZONE 1 NO DENSE OR TALL PLANTINGS LIMIT PLANTINGS AGAINST THE STRUCTURE AVOID HIGHLY FLAMMABLE SHRUBS THIN DEAD BRANCHES AND FOLIAGE WATER TO MAINTAIN PUNT MOISTURE ADHERE TO SETBACKS AND ARCHITECTURAL MODIFICATIONS • IRRIGATION AT TOP OF SLOPE • 20'± RADIUS ZONE 2 • CLEAR HIGH AND MODERATELY FLAMMABLE SPECIES • MAINTAIN EXISTING PUNTS IN RANDOM GROUPINGS NOT EXCEEDING 400 SQUARE FEET • REMAINING NATIVE PUNT COVERAGE OF 30% • HYDROSEED LOW GROWING PUNTS IN ZONES 2 AND 3 • ZONE 3 CLEAR HIGHLY FUMMABLE SPECIES MAINTAIN EXISTING PUNTS IN RANDOM GROUPINGS NOT EXCEEDING 650 SQUARE FEET REMAINING NATIVE PUNT COVERAGE OF 40% TO 60% cr> u\ 00 EXHIBIT A: LANDSCAPE FIRE SUPPRESSION AVIARA FIRE SUPPRESSION LANDSCAPE GUIDELINES ZONES I'LANNING SVSTEMS 6519 EXHIBIT "G" DESCRIPTION OF GOLF COURSE THE LAND REFERED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCEL A: LOTS 2, 5 AND 10 OF CITY OF CARLSBAD TRACT 85-35, PHASE 1 - UNIT A, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12409, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 29, 1989. TOGETHER WITH LOT 91 OF CITY OF CARLSBAD TRACT 85-35, PHASE 1 - UNIT B, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12410, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 29, 1989. TOGETHER WITH LOT 309 OF CITY OF CARLSBAD TRACT 85-35, PHASE 1 - UNIT E, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12413, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 29, 1989. PARCEL B: PARCELS 2, 7 AND 8 OF PARCEL MAP NO. 16451, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 15, 1991 AS FILE NO. 91-0168677 OF OFFICIAL RECORDS. TOGETHER WITH THAT PORTION OF PARCEL 5 OF SAID PARCEL MAP NO. 16451, DESCRIBED AS FOLLOWS: BEGINNING AT AN ANGLE POINT IN THE WESTERLY LINE OF SAID PARCEL 5 DEFINED AS THE SOUTHERLY TERMINUS OF THE COURSE BEARING NORTH 23°55'00" WEST, 880.61 FEET; THENCE ALONG SAID WESTERLY LINE NORTH 23''55'00" WEST, 59.47 FEET; THENCE LEAVING SAID WESTERLY LINE NORTH 48°56'23" EAST, 81.23 FEET; THENCE SOUTH 41°03'37" EAST, 212.00 FEET; THENCE SOUTH 48°56'23" WEST, 64.77 FEET TO A POINT ON SAID'WESTERLY LINE OF SAID PARCEL 5; THENCE ALONG SAID WESTERLY LINE NORTH 53"25' 00" WEST, 158.85 FEET TO THE POINT OF BEGINNING. Aviara Collection Community - CC&Rs 21276-13 -1298005.13 EXHIBIT "G" 6520 ALSO TOGETHER WITH THAT PORTION OF LOT 308 OF CITY OF CARLSBAD TRACT 85-3 5, PHASE I-UNIT E, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12413, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 29, 1989, LYING SOUTHERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT A POINT ON THE WESTERLY LINE OF SAID LOT 3 08, WHICH BEARS NORTH 08°13'40" WEST, 95.00 FEET FROM THE MOST SOUTHERLY CORNER OF SAID LOT 308; THENCE SOUTH 73''12'48" EAST 59.17 FEET; THENCE NORTH 44056'44" EAST 21.14 FEET TO A POINT ON THE EASTERLY LINE OF SAID LOT 308 . SAID PROPERTY IS MORE FULLY DESCRIBED IN PARCEL B OF CERTIFICATE OF COMPLIANCE RECORDED SEPTEMBER 21, 1995 AS FILE NO. 1995-0422508 OF OFFICIAL RECORDS. PARCEL C: LOT 2 OF CITY OF CARLSBAD TRACT NO. 89-37, AVIARA PHASE II, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12967, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 16, 1992. EXHIBIT "G" 6521 EXHIBIT "H" RECREATIONAL VEHICLE SITE A PORTION OF LOT 139 OF CARLSBAD TRACT NO. 92.03. AVIARA PHASE III, UNIT NO. 6, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ACCORDING TO MAP THEREOF NO. 13512, FILLED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY DECEMBER 12. 1997, SAID LAND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHEASTERLY CORNER OF SAID LOT 139, SAID CORNER ALSO BEING THE TRUE POINT OF BEGINNING; THENCE, SOUTHEASTERLY ALONG THE NORTHEASTERLY BOUNDARY LINE OF SAID LOT 139, 1. SOUTH 48" 17'47" EAST 2. SOUTH 42041'32" WEST 3. SOUTH 61''30'37" WEST 4. NORTH 89-46' 19" WEST 5. NORTH 48»I7'47" WEST SOUTH87''3I'09" EAST NORTH 00» 12'13" WEST 390.34 FEET THENCE; LEAVING SAID BOUNDARY, SOUTHWESTERLY, 101.98 FEET THENCE; 21.94 FEET THENCE; ; 41.98 FEET THENCE; 447.87 FEET TO AN INTERSECTION WITH THE NORTHERLY BOUNDARY LINE OF SAID LOT 139, THENCE; EASTERLY ALONG SAID BOUNDARY LINE, 173.72 FEET THENCE; COUNTINUING ALONG SAID BOUNDARY LINE, 54.50 FEET TO THE TRUE POINT OF BEGINNING. CONTAINS 1.388 ACRES, MORE OR LESS Aviara Collection Comniunity - CC&Rs 21276-13 - 1298005.13 EXHIBIT "H" 6522 EXHIBIT "I" DESCRIPTION OF RESORT/HOTEL PROPERTY THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: LOTS 4 THROUGH 34 OF CITY OF CARLSBAD TRACT 95-02, UNIT 2 PLANNING AREAS PORTION OF 2A AND 2B, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13398, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 31, 1997 . PARCEL 2: LOTS 1, 3 AND 6 OF CITY OF CARLSBAD TRACT NO. 95-02, UNIT 1 PLANNING AREA 2A AND A PORTION OF 2B, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13335, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 13, 1996 . PARCEL 3: LOTS 4 THROUGH 9 OF CITY OF CARLSBAD TRACT NO. 85-35 AVIARA PHASE 1 UNIT "A", IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12409, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 29, 1989. Aviara Collection Conmiunity - CC&Rs 21276-13 - 1298005.13 EXHIBIT "I