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Home My WebLink AboutCT 04-11; Poinsettia Commons; Tentative Map (CT)CITY OF CARLSBAD- ENGINEERING DEPARTMENT APPLICATION ENGINEERING PLAN CHECK Complete all appropriate information. Write N/A when not applicable. PROJECT NAME: Carlsbad Tract CTQSity O H - \ \ DATE: October 1 3, 2009 PROJECT DESCRIPTION: Poinsettia Commons PROJECT ADDRESS: 681 1 Embarcadero Ln. Carlsbad, CA. 9201 1 LOTNO(S).: 1-5 MAP NO.: 15593 _ APN(S).: 214-450-29-00 NUMBER OF LOTS: 5 NUMBER OF ACRES: 5.919 MILES OF TRAILS: OWNER: Poinsettia Commons LLC Mailing Address: 949 South Coast Dr. Suite 400 Costa Mesa CA. 92626 Phone Number: 714-966-9355 xi05 Fax Number: 714-966-9353 E-Mail: bperozzi@tcresidential.com I certify that I am the legal owner and that all the above information is trya-ajHd cofrebn^the best of my knowledge. Signaturpr^^y^-^i^!^^/ Date' lo'/t-'tfi CIVIL ENGINEER: FIRM: Mailing Address: Phone Number: Fax Number: E-Mail: State Registration Number: APPLICANT: Project Design Consultants Mailing Address: 701 B Street, Suite 800 San Diego, CA. 92101 Phone Number: 619-235-6471 Fax Number: 619-234-0349 E-Mail: ag_^x^ Date:l^ SOILS ENGINEER: ^-> FIRM: Mailing Address: Phone Number: Fax Number: E-Mail: State Registration Number: ADDITIONAL COMMENTS: Additional APN's 214-650-01-00, 214-650-02-00, 214-650-04-00, 214-650-05-00 IMPROVEMENT VALUATION i. What water district is the proposed project located in? (check one) QCarlsbad Municipal Water District Qoiivenhain QVallecitos 2. If in the Carlsbad Municipal Water District, what is the total cost estimate, including the 15% contingency fee, for water and reclaimed water improvements, sewer (for Carlsbad Municipal Water District only), street, public (median) landscape and irrigation, and drainage improvements (if applicable)? • $ GRADING QUANTITIES cut cy fill cy remedial cy import cy export cy SEE REVERSE SIDE Hi/DEVELOPMENT SERVICES/MASTERS/Application for Engineering Plan Check Revised 05/01/07 CITY ^*v CARLSBAD - ENGINEERING DEPARTM""^T ^ APPLICATION ENGINEERING PLAN CHECK Complete all appropriate information. Write N/A when not applicable. APPLICATION FOR ( s all that apply) Q Adjustment Plat (ADJ) Q Certificate of Compliance (CE) Q Dedication of Easement (PR) Type: Type: Type: n Encroachment Permit (PR) Q Final Map (FM) Q Grading Plancheck (DWG) {"1 Improvement Plancheck (DWG) Q Parcel Map (PM) Q Quitclaim of Easement (PR) Type: Type: Type: Q Reversion to Acreage (RA) Q Street Vacation (STV) Q Tentative Parcel Map (MS) B| Certificate of Correction (CCOR) Q Covenant of Easement (PR) Q Substantial Conformance Exhibit (SCE) Q Trails Q<mile Q> mile Q Other PROJECT I.D. ^^V» DRAWING NUMBER FOR CITY DEPOSIT/FEES PAID \1*1 \ USE ONLY COMMENTS APELKATTON-ACCEPTED BY: HL OCT232009 ENGINEERING DEPARTMENT DATE STAMPAPPLICATON RECEIVED Hi/DEVELOPMENT SERVICES/MASTERS/Application for Engineering Plan Check Page 2 Revised 05/01/07 CITY OF CARLSBAD - ENGINEER!^ DEPARTMENT APPLICATION ENGINEERING PLAN CHECK Complete all appropriate information. Write N/ A when not applicable. PROJECT NAME: /^/A/,^5777^ ^AM/ZmtJ $ DATE: PROJECT DESCRIPTION: PROJECT ADDRESS:^rAX4vD T'/Zte? fil& °l1-l£ Pd/V^TT/A ffOp^^-e^ LOT NO(S).: ^£>7~ 5" MAP NO.: / 3 7ft 5 APN(S).: *Z* i4 - 4fe - 3?\ NUMBER OF LOTS: / NUMBER OF ACRES: & • Ttf 4t^ . OWNER: ~Trt4-mtn-el Cro*/ ^to£^i>-*u Mailing Address: *fa*l <^><)ftf (L&te.-£ D0. • "£-$&& CoV^ J*fc>* V^ Phone Number: ~//4- - 7<£^ " 73 £<T Fax Number: 7/f--%£ - ^5 5" 3 E-Mail: ^^^Z-T.t'^Tc^cS^c^r/A^ • &>W I certify that I am the legal owner and that all the above information is true and correct to the best of my knowledge. Signature: Date: CIVIL ENGINEER: fru^TlS ^ . T<J&H?IZ, FIRM: Pf^r-cif' 0&(6V £&^S>o&7*iLSr<> Mailing Address: lO / 6 'STr^f- £&,& (&TO Phone Number: fa )4 - -^2>S~~b 4 1 1 Fax Number: /^ ^?- ~t2>4'-<z>2>^£l E-Mail: ^//» t<® P^o^frx^ (r^. Ca»\ State Registration Number: 5^^-<55^ ADDITIONAL COMMENTS: APPLICANT: 7724n)>*i£L £-roctJ ^-^(D&^TlA^- Mailing Address: *?<ff £=ouTH Ce*ts,T £>/^ ^^CTD Phone Number: 7/?- ?^^ - *73S~ST Fax Number: liq-^tb -3BS~*> E-Mail: BF&Zo2Zi'e.7~Z.£££>'t>£'J7'''*L . Cen*~^ Signature: Date: SOILS ENGINEER: FIRM: Mailing Address: Phone Number: Fax Number: E-Mail: State Registration Number: IMPROVEMENT VALUATION l. What water district is the proposed project located in? (check one) Qcarlsbad Municipal Water District Qoiivenhain Qvallecitos 2. If in the Carlsbad Municipal Water District, what is the total cost estimate, including the 15% contingency fee, for water and reclaimed water improvements, sewer (for Carlsbad Municipal Water District only), street, public (median) landscape and irrigation, and drainage improvements (if applicable)? $ GRADING QUANTITIES cut cy fill cy remedial cy import cy export cy SEE REVERSE SIDE(-(-./DEVELOPMENT SERVICES/MASTERS/Application for Engineering Plan Check Revised V14/02 CITY OF CABJh^BAD - ENGINEERING DEPARTMENT ^ APPLICATION ENGINEERING PLAN CHECK Complete all appropriate information. Write N/A when not applicable. APPLICATION FOR ( v all that apply) [] Adjustment Plat (ADJ) Q Certificate of Compliance (CE) Q Dedication of Easement (PR) Type: Type: Type: Q Encorachment Permit (PR) [] Final Map (FM) [] Grading Plancheck (DWG) [] Improvement Plancheck (DWG) [] Parcel Map (PM) [] Quitclaim of Easement (PR) Type: Type: Type: Q Reversion to Acreage (RA) [] Street Vacation (STV) [] Tentative Parcel Map (MS) [] Certificate of Correction (CCOR) [] Covenant of Easement (PR) Q Substantial Conformance Exhibit (SCE) [] Other FOR CITY USE ONLY PROJECT I.D. DRAWING NUMBER DEPOSIT/FEES PAID COMMENTS • APPLICATION ACCEPTED BY; DATE STAMP APPLICATON RECEIVED H'/DFVFI OPUPWT CCDWire<l/MAeTC:DOfA«~ll~»M-.« t CIT^F CARLSBAD - ENGINEERING DEPAWjlENT APPLICATION ENGINEERING PLAN CHECK Complete all appropriate information. Write N/A when not applicable. PROJECT NAME: £"£> //J£ f^fT * /•#- <C&S*i s^ntS r DATE: £ - 2-O - °~l PROJECT DESCRIPTION: PROJECT ADDRESS: LOT NO(S).: MAP NO.: APN(S).: NUMBER OF LOTS: NUMBER OF ACRES: OWNER: Mailing Address: ^f^Pf fee>«sTU Ca*a>~T V(L. -£=-&ccro Phone Number: 1 14 - ^(06= - °l ?> ^ £ FaxNumber: ~U4-*lfe6 - ^3 5£ E-Mail: 6 f©^2/zA^ Tc.fc.es IfcEsm At. .Qi I certify that I am the legal owner and that all the above information is true and correct to the best of my knowledge. Signature: Date: CIVIL ENGINEER: FIRM: Mailing Address: Phone Number: Fax Number: E-Mail: State Registration Number: ADDITIONAL COMMENTS: APPLICANT: Mailing Address: Phone Number: Fax Number: *E-Mail: Signature: Date: SOILS ENGINEER: FIRM: Mailing Address: Phone Number: Fax Number: E-Mail: State Registration Number: IMPROVEMENT VALUATION l. What water district is the proposed project located in? (check one) Qcarlsbad Municipal Water District Qoiivenhain Qvallecitos 2. If in the Carlsbad Municipal Water District, what is the total cost estimate, including the 15% contingency fee, for water and reclaimed water improvements, sewer (for Carlsbad Municipal Water District only), street, public (median) landscape and irrigation, and drainage improvements (if applicable)? $ GRADING QUANTITIES cut cy fill cy remedial cy import cy export cv SEE REVERSE SIDE ^ [ «C. Hi/DEVELOPMENT SERVICES/MASTERS/Appiication lor Engineering Plan Chack ' :, ;, l Revised 1/14/02 Ciy^F CARLSBAD - ENGINEERING DEPARTMENT 1 ^ y APPLICATION ENGINEERING PLAN CHECK Complete all appropriate information. Write N/A when not applicable. APPLICATION FOR ( v all that apply) [] Adjustment Plat (ADJ) Q Certificate of Compliance (CE) [] Dedication of Easement (PR) Type: Type: Type: []] Encorachment Permit (PR) [] RnalMap(FM) [] Grading Plancheck (DWG) [] Improvement Plancheck (DWG) [] Parcel Map (PM) [] Quitclaim of Easement (PR) Type: Type: Type: Q Reversion to Acreage (RA) Q Street Vacation (STV) [] Tentative Parcel Map (MS) [] Certificate of Correction (CCOR) [] Covenant of Easement (PR) [] Substantial Conformance Exhibit (SCE) [] Other FOR CITY USE ONLY PROJECT I.D. DRAWING NUMBER DEPOSIT/FEES PAID COMMENTS APPLICATION ACCEPTED BY: DATE STAMP APPLJCATON RECEIVED H-/DFVFI nPMPMT ..--2306 13: ENGINEERING DEPARTMENT Tentative Map Extension Application Project Number: Pro ~ci Nan C,T OS-H , ^Uii, 6<-/-io iJS Location: *>,;storK Side of Koc««'tfi.t, EMouASBetween (to/S/S/W) Street Name ne: pTJ/WSe "ft" ;~4_ C-&*»- fa-O&St and E:V*.hAV:<A^{ c^ Li .:..., ...... Br.ef Desc-.T Reason fcr . Name: OWNER Street Accrfe:;c i ."^ st-eet Address:" City, State, Z,p: '._O$Ta. fV\c&^ ' ^^A^4i Gt/.. State, Zip: CdSlK MgSA, CiA -Ptione Number: ?M < Fax Numoer: Numtser: ^> dumber: 1 { fo -i% rs* x ',t>- I -----il_«..-|»-M- . Sgriatun Date Current Map Expitat i Yype: >\ Facitrty «*ibmber IS"it-b Applicat. Project Planner: RECEIVED DEC 15 2006 ENGINEERING DEPARTMENT H /DEVELOPMENT 5£ -. - :.»A»pi.cst.trwi-Cou.Tio.-r AJP cxtotulon Appucasion Rtviwd c CITY OF CARLSBAD - ENGINEERING DEPARTMENT APPLICATION ENGINEERING PLAN CHECK Complete all appropriate information. Write N/A when not applicable. PROJECT NAME:DATE: PROJECT DESCRIPTION:12. AA/ VAt^AT\OH N op eiu\e>AK-CAc>Efz.<p LAME) PROJECT ADDRESS: LOT NO(S).: M . A . CAMP MAP NO,:APN(S).:H. A NUMBER OF LOTS:M-A.NUMBER OF ACRES: |. 1-2.4? OWNER: Mailing Address: Phone Number: Fax Number: E-Mail: fat&rt OS. {714!) '*%&am information is true SignajWFei ij i?Ot.I certify ShaTt am tfie'legal owner and that all the above the best of my knowledge. Date: APPLICANT: Mailing Address: 10 \ '"&" Phone Number: Fax Number: E-Mail: Signature: 881 - SOILS ENGINEER: FIRM: Phone Number: Fax Number: E-Mail: StateHFtoistiaJtef Number:f | ^vc? 4*v'L|sf Mailing Address: 'hone Number: :ax Number: •-Mail:t State Registration Number: ADDITIONAL COMMENTS: IMPROVEMENT VALUATION i. What water district is the proposed project located in? (check one) [[JCarlsbad Municipal Water District Qoiivenhain Qvallecitos 2. If in the Carlsbad Municipal Water District, what is the total cost estimate, including the 15% contingency fee, for water and reclaimed water improvements, sewer (for Carlsbad Municipal Water District only), street, public (median) landscape and irrigation, and drainage improvements (if applicable)? $ cut GRADING QUANTITIES remedial cy import..cy export, SEE REVERSE SIDE Hi'DEVELOPMEN!' SERViCES'MASTER&'AtiplicaliOi! foi engineering Plai Check Rsvisad 1/14'02 06/01/2006 13:34 1714662^^4 06/01/2006 10:46 FAX TRAMMELL CROW ,nr"SIDE PAGE 02 . ; •:'•;» ^'-^^ VTV^/^ttflH^TO "•'" ^ PROJECT NAME! .DATE: PROJECT PESCRIFTTON:T PROJECT ADDRESS: LOT NO(S).: ,4-=^ MAP NO.:APN(S}.: NUMBER OF LOTS:NUMBER OF ACRES:. 9<£ £> OWNER: Mailing Address; Phone Number; Fax Number: (_7ftO. E-Mail: b** ^ , *j .u S-w? <4flft k- - /O5- I certify that I am the legal owner and that all the above Information is tund caeJo the best of my knowledge. e-**fc*- APPLICANT: Mailing Address: Phone Number: Fax Number: E-Mail: Signature:Date: CML ENGINEER: A,«»- FIRM: "SOILS ENGINEER:. Mailing Address: -7c,( fe ST", Phone Number: ((LfW } Fax Number: E-Mail: 7 / - C? 3*/< State Registration Number: Mailing Acklress: Phone Number: Fax Number: E-Mail: State Registration Number: ADDITIONAL COMMENTS: IMPROVEMENT VALUATION 1. What water district is the proposed project located in? (check one) 0Carlsbad Municipal Water District Qoiivenhaln 2. If In the Carlsbad Municipal Water District; what is the total cost estimate, Including the 15% contingency fee, for water and reclaimed water improvements, sewer (for Carlsbad Municipal Water District only), street; public (median) landscape and irrigation, and drainage Improvements fifapplkabteW • $ fill \ k .cy GRADING QUANTITIES remedial _j^Lcy import ff cy export cy SEE REVERSE SIDE l-UDEVELOPMeNT EfilWICeWIWSTEftS/AWIlcallon tor Ensln*0«nS Plan Clm* rasj An employee-owned company PROJECT REVIEW COMPLETION The following project has been reviewed and is recommended for approval: Project Name: Project No.: Document No.: Sheets No.: Poinsettia Commons CT 04-11 Dwg. 442-4 Through: 11 DECLARATION OF RESPONSIBLE CHARGE I hereby declare that I have exercised responsible charge over the review of this project as defined in Section 6703 of the Business and Professions Code and have found the project to be in substantial compliance with applicable codes and standards. Review of this project does not relieve the Land Surveyor or Engineer of Work of their responsibilities with state and local ordinances. Signed cLLii.Date Charles R. St. John, RCE C57649 Expiration Date 12/31/07 H:\PubIic Works\082 Carlsbad\620821 Carlsbad Dev Review\74, Poinsettia Commons, CT 04-11 \Improvement PlansV»42-4 PROJECT REVEW COMPLETION.doc 9275 Sky Park Court, Suite 200 • San Diego, California 92123 • Telephone: 858.874.1810 • Fax: 858.514.1001 • www.pbsj.com PBS C O An employee-owned company PROJECT REVIEW COMPLETION The following project has been reviewed and is recommended for approval: Project Name: Poinsettia Commons Project No.: CT04-11 Document No.: FM 04-11 Sheets No.: 1 Through: 5 DECLARATION OF PROJECT REVIEW I hereby declare that I have reviewed this parcel map in conformance with Section 6731.2 of the Business and Professions Code and certify that I find it to be in substantial compliance with applicable codes and standards. Review of this parcel map does not relieve the Land Surveyor or Engineer in "responsible charge of work" of their responsibilities with state and local ordinances. Signed ^ >. -— Date Charles R. St. John, RCE 57649 Expiration Date: 12/31/07 H:VPublic Works\082 Carlsbad\620821 Carlsbad Dev ReviewV74, Poinsettia Commons, CT 04-11 \Final MapVCT 04-11 project review completion letter.doc 9275 Sky Park Court, Suite 200 • San Diego, California 92123 • Telephone: 858.874.1810 • Fax: 858.514.1001 • www.pbsj.com PBSJ An employee-owned company PROJECT REVIEW COMPLETION The following project has been reviewed and is recommended for approval: Project Name: Project No.: Document No.: Sheets No.: Poinsettia Commons CT04-11 Dwg. 442-4A Through: 8 DECLARATION OF RESPONSIBLE CHARGE I hereby declare that I have exercised responsible charge over the review of this project as defined in Section 6703 of the Business and Professions Code and have found the project to be in substantial compliance with applicable codes and standards. Review of this project does not relieve the Land Surveyor or Engineer of Work of their responsibilities with state and local ordinances. Signed 6LJL g-.Date Charles R. St. John; RCE C57649 Expiration Date 12/31/07 H:\Public WorksW82 Carlsbad\620821 Carlsbad Dev Review\74, Poinsettia Commons, CT 04-1 l\Grading PlansV442-4A PROJECT REVIEW COMPLETION.doc 9275 Sky Park Court, Suite 200 • San Diego, California 92123 • Telephone: 858.874.1810 • Fax: 858.514.1001 • www.pbsj.com An employee-owned company PROJECT REVIEW COMPLETION The following project has been reviewed and is recommended for approval: Project Name: Poinsettia Commons Project No.: CT04-11 Document No.: STV 06-06, Exhibits A & B DECLARATION OF PROJECT REVIEW I hereby declare that I have reviewed these documents in conformance with Section 6731.2 of the Business and Professions Code and certify that these documents are found to be in substantial compliance with applicable codes and standards. Review of these documents does not relieve the Land Surveyor or Engineer in "responsible charge of work" of their responsibilities with state and local ordinances. Signed Charles R. St. John, RCE 57649 Expiration Date: 12/31/07 Date - /Z-O7 H:\Public Works\082 Carlsbad\620821 Carlsbad Dev Review\74, Poinsettia Commons, CT 04-1 1\Street Vacation\STV 06-06 Project Completion Ltr.doc 9275 Sky Park Court, Suite 200 • San Diego, California 92123 • Telephone: 858.874.1810 • Fax: 858.514.1001 • www.pbsj.com This space is for tfWCounfy Clerk's fifing Stamp PROOF OF PUBLICATION (2010 & 201 IC.C.P.) STATE OF CALIFORNIA County of San Diego I om a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years and not a party to or interested in the above-entitled matter. J am the principal clerk of the printer of North County Tim< Formerly known as the Blade-Citizen ar Times-Advocate and which newspapers been adjudicated newspapers of circulation by the Superior Court of the Co San Diego, State of California, for the < Oceanside and the City of Escondido, Decree number 171349, for the County Diego, that the notice of which the annex printed copy (set in type not smalle rsonpariei], has been published in each r and entire issue of said newspaper and not supplement thereof on the following dates, July 27* 2007 I certify (or declare] under penalty of perju the foregoing is true and correct. Dated at SAN MARCOS California Thfefi/* day of July, 2C Proof of Publication of Signature jane Allshouse NORTH COUNTY TIMES Legai Advertising Council of tin C% fit C»*A«d CtiUamA. s>, JEBSM-, 8 £S$?«N?ft •SB WfifcSSSSSto^S »'f,j «SSS»* flBS*"-'*"^itt^—t^~aso=iffl! Dependable Business Services CERTIFICATION OF PROPERTY OWNERS THE ATTACHED LIST REPRESENTS THE NAMES AND ADDRESSES OF ALL PROPERTY OWNERS LOCATED WITHIN 6QQ FEET OF THE EXTERIOR BOUNDARIES OF THE PROPERTY LOCATED AT: APN# ^H - ^,60 - 30 THIS INFORMATION WAS OBTAINED FROM METROSCAN, A DATA SOURCE, UTILIZING THE COUNTY ASSESSMENT ROLLS AND OTHER DATA SOURCES. THE INFORMATION PROVIDED IS GENERALLY DEEMED RELIABLE, BUT IS NOT GUARANTEED. DATE )ENNj^8tOUT DEPENDABLE BUSINESS SERVICES, INC. 504 E. Palmyra Ave., Orange, CA 92866 (714) 744-2845 Fax (714) 744-5123 Email: dstout2@socal.rr.com Web Site: dbsinc.org Owner List NO PARCEL 1 2140230900 2 214 023 10 00 32140231200 4 214 031 03 00 5 214 031 09 00 6214031 1000 721403501 00 821403601 00 9 214 061 21 00 1021406221 00 11 2140632100 122140640100 1321406501 00 142141500800 152141500900 162141501000 1721415011 00 182141502000 192144501400 202144501500 21 2144501600 222144501900 232144502900 242144503000 25 214 600 04 01 26 214 600 04 02 27 2146000403 282146000404 292146000405 302146000406 31 2146000407 322146000408 33 214 600 04 09 342146000410 352146000411 362146000412 372146000413 382146000414 39 2146000415 402146000416 41 2146000417 422146000418 432146000419 442146000420 452146000421 462146000422 472146000423 482146000424 492146000425 OWNER Patricia L V Sanchez Robert H & Margaret L Barelman Gilbert V & Trinidad Vea Encina Wastewater Authority Encina Wastewater Authority Encina Wastewater Authority Encina Wastewater Authority Encina Wastewater Authority Encina Wastewater Authority Encina Wastewater Authority Encina Wastewater Authority Encina Wastewater Authority Encina Wastewater Authority NORTH SAN DIEGO COUNTY TRANSIT Theodore T Vallas Theodore T Vallas NORTH SAN DIEGO COUNTY TRANSIT NORTH SAN DIEGO COUNTY TRANSIT GLENDORA MOTORCARS CO INC GLENDORA MOTORCARS CO INC HOEHN GROUP L L C KAISER FOUNDATION HEALTH PLAN POINSETTIA HOUSING ASSOCIATES Commons L L C Poinsettia Robert Gitchrist Robert L & Andrea Niehaus Daryl J Brooks Bradley Hensley ASH BRUCE & JANE TRUST 07-31-0 Chinh V & Van-Ann Tran John A Stephenson John M Weakley Robert & Wendi Richards YELLAND FAMILY TRUST 02-10-03 William R Majek Daniel T & Anne Linehan Steven C Amster Brian Otero Samuel A & Glenna L Spadaro Jose E & Anna M Calabria BACHA MELODY J TRUST 01-15-02 HEAD W E/L J N 1995 TRUST Paul L & Jean M Bruce Paul Marsteller Catamaran DENTON DIANE TRUST 11-01-02 Simon C Lee William M Lassleben Jill H Brinton ADDRESS UNIT 6498 Franciscan Rd 1967 N Coast Highway #101 577 Wild Rose Ln 6200 Avenida Encinas 6200 Avenida Encinas 6200 Avenida Encinas 6200 Avenida Encinas 6200 Avenida Encinas 6200 Avenida Encinas 6200 Avenida Encinas 6200 Avenida Encinas 6200 Avenida Encinas 6200 Avenida Encinas 810 Mission Ave 246 5th St 246 5th St 810 Mission Ave 810 Mission Ave 6830 Avenida Encinas 6830 Avenida Encinas Po Box 789 393 E Walnut St 345 Spear St #700 949 S Coast Dr #400 Po Box 1316 7512 Magellan St 120 Breakwater Rd 124 Breakwater Rd 6570 E Santa Aurelia Po Box 503166 136 Breakwater Rd 140 Breakwater Rd 144 Breakwater Rd 148 Breakwater Rd 6927 Tradewinds Dr 6923 Tradewinds Dr 6919 Tradewinds Dr 6915 Tradewinds Dr 6911 Tradewinds Dr 6907 Tradewinds Dr Po Box 443 807 Phoenix Way 6895 Tradewinds Dr 6891 Tradewinds Dr 7040 Avenida Encinas #104 6869 Catamaran Dr 6873 Catamaran Dr 6877 Catamaran Dr 6886 Tradewinds Dr CITY/STATE/ZIP Carlsbad Ca 92011 Encinitas Ca 92024 Imperial Ca 92251 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Oceanside Ca 92054 Encinitas Ca 92024 Encinitas Ca 92024 Oceanside Ca 92054 Oceanside Ca 92054 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92018 Pasadena Ca 91188 San Francisco Ca 94105 Costa Mesa Ca 92626 Rancho Santa Fe Ca 92067 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Tucson Az 85715 San Diego Ca 92150 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Del Mar Ca 92014 San Marcos Ca 92078 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Owner List 502146000426 51 2146000427 522146000428 532146000429 542146000430 55 214 600 04 31 562146000432 572146000901 582146000902 592146000903 602146000904 61 214 600 09 05 622146000906 632146000907 642146000908 652146000909 662146000910 672146000911 682146000912 692146000913 702146000914 71 2146000915 722146000916 732146000917 742146000918 752146000919 762146000920 772146000921 782146000922 792146000923 802146000924 81 2146121900 822146122000 8321461221 00 842146122200 852146122300 862146122400 872146122500 882146122600 89 214 612 27 00 902146122800 91 2146122900 922146123000 9321461231 00 942146123200 952146123300 962146123400 972146123500 982146123600 992146124800 BAUCUM RICHARD & KAREN FAMILY Arman P & Mary A Freeman Melissa Carson George & Marilyn J Plante Donald F & Mary L Castro Michellie Y Jones John A & Irene Hafner Michael D & Ronda M Diverde Naziru Hirani NELSON FAMILY TRUST 05-14-94 CUNNINGHAM TRUST 04-25-00 Virginia K Sharp ESPINOSA R W/J 2000 TRUST John C & Rhonda L Oertle 7TH HEAVEN FAMILY TRUST 12-02- Cynthia L Munoz SHIPLEY FAMILY TRUST 04-14-05 PARRAVI SUSAN 2003 FAMILY TRUS Larry Lansford Bradley J & Mary J Hertan Grant A & Lanie L Gomez HEAD W E & L J N 1995 TRUST 04 ISSA FAMILY TRUST STEELE FAMILY LIVING TRUST 06- Nicholas G Metchkoff Benno P & Waltraud A Lotz Christopher M & Marcy Donnager Theresa C Bueltel Phillippe Lizarraga Charles R Jr & Deborah J Hobbs JIMENEZ FAMILY LIVING TRUST 06 Larry R & Lara B Nelson Anne-Marie Stephenson Jon W Humphrey Patrick M & Mari L Terry Nicholas G & Kathy M Nutter SPORE WILLIAM W & GRACE L TRUS MANCUSO FAMILY TRUST David J Miller Louis G Hayward George & Stacie L Weigle Alan & Michelle Schneider ARCIDIACONO RESIDUAL FAMILY TR Cara-Beth Burnside Robert & Kristen Gilchrist LUCORE FAMILY TRUST PHILLIPS TRUST 02-19-04 Nghi H Tran NASEEMUDDEEN TRUST AGREEMENT Sergio Ferrer 6890 Tradewinds Dr Po Box 26453 6898 Tradewinds Dr 6902 Tradewinds Dr 7721 N Tatum Blvd 6910 Tradewinds Dr 6914 Tradewinds Dr 123 Channel Rd 119 Channel Rd 3889 Lilac Canyon Ln 111 Channel Rd 6991 Tradewinds Dr 6987 Tradewinds Dr 6983 Tradewinds Dr 6979 Tradewinds Dr 6975 Tradewinds Dr 6971 Tradewinds Dr 3955 Via Cangrejo 6883 Tradewinds Dr 41854 Catle Californios 5011 E Pershing Ave 807 Phoenix Way 6867 Tradewinds Dr 6863 Tradewinds Dr 15105LaSubidaDr 6862 Tradewinds Dr 6866 Tradewinds Dr 6870 Tradewinds Dr 6874 Tradewinds Dr 6878 Tradewinds Dr 9954 Ravenna Way 291 E Country Club Dr 6927 Clearwater St 623 Strand St 619 Strand St 615 Strand St 611 Strand St 607 Strand St 603 Strand St 602 Strand St 606 Strand St 610 Strand St 1072 Lighthouse Rd 618 Strand St Po Box 1316 5955 Las Tunas Dr 7040 Avenida Encinas 6908 Waters End Dr 6910 Waters End Dr 6911 Waters End Dr Carlsbad Ca 92011 San Diego Ca 92196 Carlsbad Ca 92011 Carlsbad Ca 92011 Paradise Valley Az 85253 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Altadena Ca 91001 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 San Diego Ca 92130 Carlsbad Ca 92011 Lancaster Ca 93536 Scottsdale Az 85254 San Marcos Ca 92078 Carlsbad Ca 92011 Carlsbad Ca 92011 Hacienda Heights Ca 91745 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Cypress Ca 90630 Henderson Nv 89015 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Rancho Santa Fe Ca 92067 Oceanside Ca 92057 #104-189 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Owner List 1002146124900 101 2146125000 10221461251 00 1032146125200 1042146125300 1052146125400 10621461261 00 1072146126200 10821461301 00 1092146130200 1102146130300 111 2146130400 1122146130500 113 2146130600 1142146130700 1152146130800 1162146130900 1172146131000 11821461311 00 1192146131200 1202146131300 121 2146131400 1222146131500 1232146131600 1242146131700 1252146131800 1262146131900 1272146132000 128 21461321 00 1292146132200 1302146132300 131 2146132400 1322146132500 1332146132600 1342146132700 1352146132800 1362146132900 1372146133000 13821461331 00 1392146133200 140 2146133300 141 2146133400 142 2146133500 1432146133600 1442146133700 1452146133800 1462146133900 1472146134000 148 21461341 00 1492146134200 Sean Lake Shara Solitare Ray S Price WELCH REVOCABLE FAMILY TRUST 1 PALLAS CYNTHIA A TRUST 12-21-0 GANCI-RYAN MICHAEL & LAURENE F WATERS END HOMEOWNERS ASSN WATERS END HOMEOWNERS ASSN Sergio & Maria E Correa Aron S & Julie L Carman Brian C Smith Peter Hurley Ronald J Black Donna Faught Tatiana Hahn Patrick S & Elisa Henry Gary L & Sondra E Rose Philip R & Phyllis Ziring Carmen L Lyon Allan P Jr Madvig REILL HOMES INC Robin Taber Timothy 0 Jr & Margaret N Carr Michael Kalwig Shad C & Lisa M Colbert Mark H Lavine Timothy C & Sarena M Traver Marianne Browne Michael N Poli Phillip M Jr & Maria K Stubbs WENDEL FAMILY TRUST 10-26-04 Julie Suttles ZAGALA FAMILY TRUST Bryan P Stevenson Russell VV Key Darrell E & Charlene M Holt John Suster Lie Valpin Ann M Prochera Walter D & Sharon Cerkan Michael D & Barbara A Cude Suravit Dispun Jennifer Forde-Hofreiter Michael Lee Debra S Range! Lily L Wong Timothy J & Suzette Smith ANDREWS FAMILY TRUST 02-02-04 Michael & Annette Manning Jeffrey C Fosburg 6909 Waters End Dr 6907 Waters End Dr 6920 Clearwater St 568 Cypress Hills Dr 6928 Clearwater St 6613SitioCedrela 2020 ElstSt #500 2020 ElstSt #500 637 Sandside Ct 6758 Caurina Ct 629 Sandside Ct 625 Sandside Ct 621 Sandside Ct 611 Sandside Ct 607 Sandside Ct 603 Sandside Ct 604 Sandside Ct 95 Convent Ct 612 Sandside Ct 609 Seaward Ave 6619SitioCedrela 4700 Silver Ranch PI 602 Seaward Ave 606 Seaward Ave 610 Seaward Ave 614 Seaward Ave 618 Seaward Ave 622 Seaward Ave 626 Seaward Ave 630 Seaward Ave 791 Jensen Ct 640 Seaward Ave 644 Seaward Ave 648 Seaward Ave 652 Seaward Ave 656 Seaward Ave 660 Seaward Ave 664 Seaward Ave 665 Seaward Ave 661 Seaward Ave 171 EVinedoLn 653 Seaward Ave 649 Seaward Ave 645 Seaward Ave 641 Seaward Ave 635 Seaward Ave 631 Seaward Ave 7074 Leeward St 7001 Etter St 620 Sandside Ct Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Encinitas Ca 92024 Carlsbad Ca 92011 Carlsbad Ca 92011 Santa Ana Ca 92705 Santa Ana Ca 92705 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 San Rafael Ca 94901 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 San Jose Ca 95138 Carlsbad Ca 92011 Cartsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Encinitas Ca 92024 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Tempe Az 85284 Carlsbad Ca 92011 Carlsbad Ca 92009 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Bakersfield Ca 93308 Carlsbad Ca 92011 Owner List 1502146134300 151 2146134400 1522146134500 1532146134600 1542146134700 1552146134800 1562146134900 1572146135000 15821461351 00 1592146135200 1602146135300 161 214 613 54 00 1622146135500 1632146135600 1642146135700 1652146135800 1662146135900 1672146136000 16821461361 00 1692146136200 1702141501200 Alba C Warchak MCCORD SANCHEZ FAMILY TRUST WHEEUHAN FAMILY TRUST CARLTON & SANDRA LUND Susan Patten Shannon Tarbell Philip J Turner Michael R & Barbara J Delaney Don & Bobbie Bowen Matthew R Miller Keith A & Sara L Harding Hung Q & Anne Vu Bryan F & Nancy G Foster WATERS END HOMEOWNERS ASSN L Homes L L C W L Homes L L C W WATERS END HOMEOWNERS ASSN WATERS END HOMEOWNERS ASSN L Homes L L C W L Homes L L C W 624 Sandside Ct 628 Sandside Ct 1250 Mariposa Rd 1320CorvidaeSt 1335RaveanCt 646 Sandside Ct 650 Sandside Ct 16959 Silver Crest Dr 6902 Waters End Dr 6904 Waters End Dr Po Box 231903 6905 Waters End Dr 2023 Ridgeview Ct 2020 ElstSt #500 895 Dove St #110 895 Dove St #110 2020 ElstSt #500 2020 ElstSt #500 895 Dove St #110 895 Dove St #110 NORTH SAN DIEGO COUNTY TRANSIT 810 Mission Ave Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Carlsbad Ca 92011 Encinitas Ca 92024 Carlsbad Ca 92011 Carlsbad Ca 92011 San Diego Ca 92127 Carlsbad Ca 92011 Carlsbad Ca 92011 Encinitas Ca 92023 Carlsbad Ca 92011 Redlands Ca 92373 Santa Ana Ca 92705 Newport Beach Ca 92660 Newport Beach Ca 92660 Santa Ana Ca 92705 Santa Ana Ca 92705 Newport Beach Ca 92660 Newport Beach Ca 92660 Oceanside Ca 92054 1 PATRICIA L V SANCHEZ 6498 FRANCISCAN RD CARLSBAD CA 92011 ROBERT H & MARGARET L BARELMAN 1967 N COAST HIGHWAY #101 ENCINITAS CA 92024 GILBERT V & TRINIDAD VEA 577 WILD ROSE LN IMPERIAL CA 92251 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 8 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 9 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 10 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 11 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 12 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 13 ENCINA WASTEWATER AUTHORITY 6200 AVENIDA ENCINAS CARLSBAD CA 92011 14 NORTH SAN DIEGO CO TRANSIT 810 MISSION AVE OCEANSIDE CA 92054 15 THEODORE TVALLAS 246 5TH ST ENCINITAS CA 92024 16 THEODORE T VALLAS 246 5TH ST ENCINITAS CA 92024 17 NORTH SAN DIEGO CO TRANSIT 810 MISSION AVE OCEANSIDE CA 92054 18 NORTH SAN DIEGO CO TRANSIT 810 MISSION AVE OCEANSIDE CA 92054 19 GLENDORA MOTORCARS CO INC 6830 AVENIDA ENCINAS CARLSBAD CA 92011 20 GLENDORA MOTORCARS CO INC 6830 AVENIDA ENCINAS CARLSBAD CA 92011 21 HOEHN GROUP L L C PO BOX 789 CARLSBAD CA 92018 22 KAISER FOUNDATION HEALTH PLAN 393 E WALNUT ST PASADENA CA 91188 23 POINSETTIA HOUSING ASSOCIATES 345 SPEAR ST #700 SAN FRANCISCO CA 94105 24 COMMONS L L C POINSETTIA 949 S COAST DR #400 COSTA MESA CA 92626 25 ROBERT GILCHRIST PO BOX 1316 RANCHO SANTA FE CA 92067 26 ROBERT L & ANDREA NIEHAUS 7512 MAGELLAN ST CARLSBAD CA 92011 27 DARYL J BROOKS 120 BREAKWATER RD CARLSBAD CA 92011 28 BRADLEY HENSLEY 124 BREAKWATER RD CARLSBAD CA 92011 29 ASH BRUCE & JANE TRUST 07-31-0 6570 E SANTA AURELIA TUCSON AZ 85715 30 CHINH V & VAN-ANH TRAN PO BOX 503166 SAN DIEGO CA 92150 31 JOHN A STEPHENSON 136 BREAKWATER RD CARLSBAD CA 92011 32 JOHN M WEAKLEY 140 BREAKWATER RD CARLSBAD CA 92011 33 ROBERT & WENDI RICHARDS 144 BREAKWATER RD CARLSBAD CA 92011 34 YELLAND FAMILY TRUST 02-10-03 148 BREAKWATER RD CARLSBAD CA 92011 35 WILLIAM R MAJEK 6927 TRADEWINDS DR CARLSBAD CA 92011 36 DANIEL T & ANNE LINEHAN 6923 TRADEWINDS DR CARLSBAD CA 92011 37 STEVEN C AMSTER 6919 TRADEWINDS DR CARLSBAD CA 92011 38 BRIAN OTERO 6915 TRADEWINDS DR CARLSBAD CA 92011 39 SAMUEL A & GLENNA L SPADARO 6911 TRADEWINDS DR CARLSBAD CA 92011 40 JOSE E & ANNA M CALABRIA 6907 TRADEWINDS DR CARLSBAD CA 92011 41 BACHA MELODY J TRUST 01-15-02 PO BOX 443 DEL MAR CA 92014 42 HEAD W E/L J N 1995 TRUST 807 PHOENIX WAY SAN MARCOS CA 92078 43 PAUL L & JEAN M BRUCE 6895 TRADEWtNDS DR CARLSBAD CA 92011 44 PAUL MARSTELLER 6891 TRADEWINDS DR CARLSBAD CA 92011 45 CATAMARAN 7040 AVENIDAENCINAS #104 CARLSBAD CA 92011 46 DENTON DIANE TRUST 11-01-02 6869 CATAMARAN DR CARLSBAD CA 92011 47 SIMON C LEE 6873 CATAMARAN DR CARLSBAD CA 92011 48 WILLIAM M LASSLEBEN 6877 CATAMARAN DR CARLSBAD CA 92011 49 JILL H BRINTON 6886 TRADEWINDS DR CARLSBAD CA 92011 50 BAUCUM RICHARD & KAREN FAMILY 6890 TRADEWINDS OR CARLSBAD CA 92011 51 ARMAN P & MARY A FREEMAN PO BOX 26453 SAN DIEGO CA 92196 52 MELISSA CARSON 6898 TRADEWINDS DR CARLSBAD CA 92011 53 GEORGE & MARILYN J PLANTE 6902 TRADEWINDS DR CARLSBAD CA 92011 54 DONALD F & MARY L CASTRO 7721 N TATUM BLVD PARADISE VALLEY AZ 85253 55 MICHELLIEY JONES 6910 TRADEWINDS DR CARLSBAD CA 92011 56 JOHN A & IRENE HAFNER 6914 TRADEWINDS DR CARLSBAD CA 92011 57 MICHAEL D & RONDA M DIVERDE 123 CHANNEL RD CARLSBAD CA 92011 58 NAZIRU HIRANI 119 CHANNEL RD CARLSBAD CA 92011 59 NELSON FAMILY TRUST 05-14-94 3889 LILAC CANYON LN ALTADENACA91001 60 CUNNINGHAM TRUST 04-25-00 111 CHANNEL RD CARLSBAD CA 92011 61 VIRGINIA K SHARP 6991 TRADEWINDS DR CARLSBAD CA 92011 62 ESPINOSA R W/J 2000 TRUST 6987 TRADEWINDS DR CARLSBAD CA 92011 63 JOHN C & RHONDA L OERTLE 6983 TRADEWINDS DR CARLSBAD CA 92011 64 7TH HEAVEN FAMILY TRUST 12-02- 6979 TRADEWINDS DR CARLSBAD CA 92011 65 CYNTHIA L MUNOZ 6975 TRADEWINDS DR CARLSBAD CA 92011 66 SHIPLEY FAMILY TRUST 04-14-05 6971 TRADEWINDS DR CARLSBAD CA 92011 67 PARRAVI SUSAN 2003 FAMILY TRUS 3955 VIA CANGREJQ SAN DIEGO CA 92130 LARRY LANSFORD 6883 TRADEWINDS DR CARLSBAD CA 92011 69 BRADLEY J & MARY J HERTAN 41854 CALLE CALIFORNIOS LANCASTER CA 93536 70 GRANT A & LANIE L GOMEZ 5011 EPERSHINGAVE SCOTTSDALE AZ 85254 71 HEAD W E & L J N 1995 TRUST 04 807 PHOENIX WAY SAN MARCOS CA 92078 72 ISSA FAMILY TRUST 6867 TRADEWINDS DR CARLSBAD CA 92011 73 STEELE FAMILY LIVING TRUST 06- 6863 TRADEWINDS DR CARLSBAD CA 92011 74 NICHOLAS G METCHKOFF 15105LASUBIDADR HACIENDA HEIGHTS CA 91745 75 BENNO P & WALTRAUD A LOTZ 6862 TRADEWINDS DR CARLSBAD CA 92011 76 CHRISTOPHER M & MARCY DONNAGER 6866 TRADEWINDS DR CARLSBAD CA 92011 77 THERESA C BUELTEL 6870 TRADEWINDS DR CARLSBAD CA 92011 78 PHILLIPPE LIZARRAGA 6874 TRADEWINDS DR CARLSBAD CA 92011 79 CHARLES JR & DEBORAH J HOBBS 6878 TRADEWINDS DR CARLSBAD CA 92011 80 JIMENEZ FAMILY LIVING TRUST 06 9954 RAVENNA WAY CYPRESS CA 90630 81 LARRY R & LARA B NELSON 291 E COUNTRY CLUB DR HENDERSON NV 89015 82 ANNE-MARIE STEPHENSON 6927 CLEARWATER ST CARLSBAD CA 92011 83 JON W HUMPHREY 623 STRAND ST CARLSBAD CA 92011 84 PATRICK M & MARI L TERRY 619 STRAND ST CARLSBAD CA 92011 85 NICHOLAS G & KATHY M NUTTER 615 STRAND ST CARLSBAD CA 92011 86 SPORE WILLIAM W & GRACE L TRUS 611 STRAND ST CARLSBAD CA 92011 87 MANCUSO FAMILY TRUST 607 STRAND ST CARLSBAD CA 92011 88 DAVID J MILLER 603 STRAND ST CARLSBAD CA 92011 89 LOUIS G HAYWARD 602 STRAND ST CARLSBAD CA 92011 90 GEORGE & STACIE L WEIGLE 606 STRAND ST CARLSBAD CA 92011 121 ROBIN TABER 4700 SILVER RANCH PL SAN JOSE CA 95138 122 TIMOTHY JR & MARGARET N CARR 602 SEAWARD AVE CARLSBAD CA 92011 123 MICHAEL KALWIG 606 SEAWARD AVE CARLSBAD CA 92011 124 SHAD C & LISA M COLBERT 610 SEAWARD AVE CARLSBAD CA 92011 125 MARK H LAVINE 614 SEAWARD AVE CARLSBAD CA 92011 126 TIMOTHY C & SARENA M TRAVER 618 SEAWARD AVE CARLSBAD CA 92011 127 MARIANNE BROWNE 622 SEAWARD AVE CARLSBAD CA 92011 128 MICHAEL N POLI 626 SEAWARD AVE CARLSBAD CA 92011 129 PHILLIP M JR & MARIA K STUBBS 630 SEAWARD AVE CARLSBAD CA 92011 130 WENDEL FAMILY TRUST 10-26-04 791 JENSEN CT ENCINITAS CA 92024 131 JULIE SUTTLES 640 SEAWARD AVE CARLSBAD CA 92011 132 ZAGALA FAMILY TRUST 644 SEAWARD AVE CARLSBAD CA 92011 133 BRYAN P STEVENSON 648 SEAWARD AVE CARLSBAD CA 92011 134 RUSSELL VV KEY 652 SEAWARD AVE CARLSBAD CA 92011 135 DARRELL E & CHARLENE M HOLT 656 SEAWARD AVE CARLSBAD CA 92011 136 JOHN SUSTER 660 SEAWARD AVE CARLSBAD CA 92011 137 LLC VALPIN 664 SEAWARD AVE CARLSBAD CA 92011 138 ANN M PROCHERA 665 SEAWARD AVE CARLSBAD CA 92011 139 WALTER D & SHARON CERKAN 661 SEAWARD AVE CARLSBAD CA 92011 140 MICHAEL D & BARBARA A CUDE 171 EVINEDOLN TEMPE AZ 85284 141 SURAVIT DISPUN 653 SEAWARD AVE CARLSBAD CA 92011 142 JENNIFER FORDE-HOFREITER 649 SEAWARD AVE CARLSBAD CA 92009 143 MICHAEL LEE 645 SEAWARD AVE CARLSBAD CA 92011 144 DEBRA S RANGEL 641 SEAWARD AVE CARLSBAD CA 92011 145 LILY L WONG 635 SEAWARD AVE CARLSBAD CA 92011 146 TIMOTHY J & SUZETTE SMITH 631 SEAWARD AVE CARLSBAD CA 92011 147 ANDREWS FAMILY TRUST 02-02-04 7074 LEEWARD ST CARLSBAD CA 92011 148 MICHAEL & ANNETTE MANNING 70Q1ETTERST BAKERSFIELD CA 93308 149 JEFFREY C FOSBURG 620 SANDSIDE CT CARLSBAD CA 92011 150 ALBA C WARCHAK 624 SANDSIDE CT CARLSBAD CA 92011 151 MCCORD SANCHEZ FAMILY TRUST 628 SANDSIDE CT CARLSBAD CA 92011 152 WHEELIHAN FAMILY TRUST 125QMARIPOSARD CARLSBAD CA 92011 153 LUND CARLTON D & SANDRA L FAMI 1320CORVIDAEST CARLSBAD CA 92011 154 SUSAN PATTEN 1335 RAVEAN CT ENCINITAS CA 92024 155 SHANNON TARBELL 646 SANDSIDE CT CARLSBAD CA 92011 156 PHILIP J TURNER 650 SANDSIDE CT CARLSBAD CA 92011 157 MICHAEL R & BARBARA J DELANEY 16959 SILVER CREST OR SAN DIEGO CA 92127 158 DON & BOBBIE BOWEN 6902 WATERS END DR CARLSBAD CA 92011 159 MATTHEW R MILLER 6904 WATERS END DR CARLSBAD CA 92011 160 KEITH A & SARA L HARDING PO BOX 231903 ENCINITAS CA 92023 161 HUNG Q& ANNE VU 6905 WATERS END DR CARLSBAD CA 92011 162 BRYAN F & NANCY G FOSTER 2023 RIDGEVIEW CT REDLANDS CA 92373 163 WATERS END HOMEOWNERS ASSN 2Q20E1STST #500 SANTA ANA CA 92705 164 L HOMES L L C W 895 DOVE ST #110 NEWPORT BEACH CA 92660 165 L HOMES L L C W 895 DOVE ST #110 NEWPORT BEACH CA 92660 166 WATERS END HOMEOWNERS ASSN 2020E1STST #500 SANTA ANA CA 92705 167 WATERS END HOMEOWNERS ASSN 2020E1STST #500 SANTA ANA CA 92705 168 L HOMES L L C W 895 DOVE ST #110 NEWPORT BEACH CA 92660 169 L HOMES L L C W 895 DOVE ST #110 NEWPORT BEACH CA 92660 170 NORTH SAN DIEGO CO TRANSIT 810 MISSION AVE OCEANSIDE CA 92054 TRAMMELL CROW RESIDENTIAL 949 SOUTH COAST DR #400 COSTA MESA CA 92626 I I -SD-5 12. r:'*H*^•V f\ .<* y"*7 AVENIDA M1378S ,HTERSTATE Z26 47 \\ 6C ACCESS-"NO END DR 'c/^p<^ ,.© r- « * / ^ s.* u •*.* y - -''I i*/,;y^ / *?A/«, .>-/ ^ / ^.^ / » ALAMO ffff I •***~?± t.©© 'tie,'17 sec zo * & &\—\ "I M13253 600" Radius Map APN: 214-450-30-00 Date Applicant: MaP Prepared by: D.B.S., Inc. Trammell Crow Residential 949 South Coast Dr Ste. 400 Costa Mesa, CA 92626 ^ N Scale: 1" = 200' &sgfr& -^<*S«yx ST %, SWEETWATER ST OP r'LN "SHORELINE DR '11$:®' =J ^^»>i- * • « •» Q SHORELINE DR g LOT 227 IS ASSESSED ON K 61 SHT 1 PAR ?A SBE MAP T."&S>! RR. R/V CATAMARAN (PRIVATE ST) 7/4fe^'.<ly <9 ^ ' ' Aj •"?. ^ \ -•-•• L-»- ,/g I to - L ^* J.---'~ — V • — i^• 5?-^^^ h to* K-A. ^KN I--f^ V- .^;..,. wi*/||- w *.IRADEWINDS ,-1.50 1» CD David Rick From: Perozzi, Brad [bperozzi@tcresidential.com] Sent: Monday, October 26, 2009 4:20 PM To: David Rick; Nicholas Psyhogios Subject: RE: PR 07-62 Poinsettia Commons Encoachment Agreement Attachments: imageOOl .gif TCR's full address is: Poinsettia Commons LLC 949 South Coast Drive, Suite 400 Costa Mesa, CA 92626 And yes, we are still the owner's of the project. Brad Perozzi 714-966-9355x105 bperozzi@tcresidential.com From: David Rick [mailto:David.Rick@carlsbadca.gov] Sent: Thursday, October 22, 2009 3:52 PM To: Nicholas Psyhogios Cc: Perozzi, Brad Subject: PR 07-62 Poinsettia Commons Encoachment Agreement I was just going through my file and I realized that I do not think I ever received from you signed copies of Exhibit A or B or the revised copy of Exhibit A (see attached copy of email). A copy of the latest Exhibit A and B with my comment on Exhibit A is attached. Please provide me with a new exhibit with wet signature and seal on each exhibit. Also, verify the current property owner and provide the address to Trammel Crow as requested in the email. In addition, since the tower is now constructed, check and make sure that the design and dimensions are accurate. Once I receive the revised and signed exhibits, I will get you the encroachment agreement for owner signature and we can put this to rest. Thanks. CARLSBAD David Rick Associate Engineer City of Carlsbad 1635 Faraday Av. Carlsbad, CA 92008 www.carlsbadca.gov P: 760-602-2781 F: 760-602-1052 david.rick@carlsbadca.gov PROJECT DESIGN CONSULTANTS 701 B STREET, SUITE 800 SAN DIEGO, CA 92101 619.235.6471 TEL 619.234.0349 FAX WWW.PROJECTDESIGN.COM File: 3153.10 October 12, 2009 Development Services CITY OF CARLSBAD 1635 Faraday Avenue Carlsbad, CA 92008 SUBJECT: Carlsbad Tract CT 04-11, Poinsettia Commons, Map No. 15593 Dear Engineering: This is to advise you that the final monumentation for the above-mentioned subdivision have been set. Project Design Consultants has been paid in full for setting these monuments. Project Design Consultants hereby releases any and all claims on the monument surety held by the City of Carlsbad. If you have any questions, please call me at (619) 881-3394. Sincerely, Gary L Vice President PLS 7019 Exp. 06/30/10 OCT 2 3 2009 ENGINEERING DEPARTMENT R:\WP\LETTER\3100\31531_MON.LTR-MAP15593-01.doc SAN DIEGO • PHOENIX • TEMECULA • BAKERSFIELD i ! HowesWeilerAAssociates LAND USE PLANNING AND CONSULTATION December 18,2008 David Rick 1635 Faraday Avenue Carlsbad, CA 92008 RE: BluWater Crossing - Drainage Dear David: RECEIVED DEC 19 2008 ENGINEERING DEPARTMENT The purpose of this letter is to provide a brief history of the factors that led to the current design of the drainage system for BluWater Crossing which directs potable and reclaimed water to flow through a grass lined swale to eventually replenish the vernal pools to the south and west of the site. BluWater Crossing, which was originally called Poinsettia Commons, is a part of the Poinsettia Properties Specific Plan which was approved by the Carlsbad City Council on January 27,1998. The Poinsettia Properties Specific Plan covered the BluWater Crossing site, Water's End, the affordable apartments and two properties at the intersection of Carlsbad Boulevard and Poinsettia Lane. As a part of the processing of the Poinsettia Properties Specific Plan the City required that a complete Environmental Impact Report be prepared to address the environmental impacts of the proposed project. A copy of that EIR is in the Planning Department library. The biological section of mat EIR addressed impacts on the existing vernal pools which were located adjacent to the Water's End project. A copy of a letter dated March 12,1996 from John Brown ofDudek & Associates, Inc. accompanies this letter. That letter documented his work with NCTD hi determining mitigation for the vernal pools adjacent to the NCTD station and made recommendations for buffering of the vernal pools adjacent to Water's End. Copies of that letter were sent to Jim Dice and Patricia Wolf of the California Department of Fish & Game. These mitigation measures were incorporated into the EIR for the Poinsettia Properties Specific Plan which was then circulated for public review. The California Department of Fish & Game and the U. S. Fish and Wildlife Service were noticed that this document was available for public review and I believe a copy of the EIR was sent to both agencies. Eight years later in 2004, when Water's End was under construction, Kurt Robleck and Jonathan Snapp-Cook of the U.S. Fish and Wildlife Service notified the City that they had concerns that the development of Water's End would adversely impact the watershed for the vernal pools. In response to their comments we sent them Mr. Brown's letter of March 12,1996. They responded by email on August 12,2004 acknowledging that they had a copy of this letter hi their 760.929.2288 Fax. 760.929.2287 Emai Suite 202. Carlsbad. CA 92008 _ HowesWeiler^^ &Associates '^\ LAND USE PLANNING AND CONSULTATION X files; but were concerned about the adverse impacts to the vernal pools and wanted to work with us to preserve the pools. In a spirit of cooperation we met with Mr. Snapp-Cook, Mr. Robleck, David DiRienzo, Don Rideout, and Nick Psyhogios hi the fall of 2004 to discuss then* concerns and determine what could be done. They felt that the original biological study and EDR. did not adequately address the size of the drainage basin that refilled the vernal pools after a rain storm. The drainage for Water's End which was under construction at the time directed all of the runoff into the storm drain system. However, the irrigation system for the planting outside of the sound wall for Water's End was directed to send a mixture of potable and reclaimed water hi the direction of the vernal pools. They felt that this was not enough water to replenish the vernal pools which relied on runoff from winter rains. At that same time Poinsettia Commons (BluWater Crossing) had been approved by the City with a typical drainage system that directed the water into the storm drains hi the street. Mr. Robleck and Mr. Snapp-Cook requested that the developer of the project redesign the drainage system to direct as much of the potable and reclaimed water from Poinsettia Commons to drain thorough the grass lined swale to the south of the site so that it would serve to replenish the vernal pools. Although the project was already designed in accordance with an approved EIR and the standard drainage requirements at that tune and the applicant was under no obligation to redesign the drainage system, in an attempt to work with this last minute request they agreed to fund the cost of redesigning the drainage plan for Poinsettia Commons to direct as much of the drainage as possible to replenish the vernal pools. Hopefully this letter and the attached letters and memo provide an explanation as to how the drainage for BluWater Crossing was designed to flow through the grassy swale to replenish the vernal pools. Please feel free to contact me if you have any questions or need any additional information. Sincerely, Mike Howes Cc Barbara Kennedy Pam James Tora Schilling Bard Perozzi Frank Bohls Attachments Hofman Planning Associates PosMt* Fa* Noto 7671 Planning Fisca Services Environrienta! CoJDept Phon«* Fram Co Phono • MEMO Date: August 19, 2004 To. Kurt Robleck & Jonathan Snapp-Cook From: Mike Howes Subject: Vernal Pool Watershed for the Poinsettia Properties Specific Plan Accompanying this memo is a letter dated March 12,1996 from John Brown of Dudek & Associates addressing the vernal pools along the railroad tracks, adjacent to the Poinsettia Properties Specific Plan. According to the letter. John Brown reviewed the site with Jim Dice, of the California Department of Fish & Game, and they agreed that the vernal pool watershed did not extend east of the existing dirt road at the edge of the property The buffers for the Water's End project have been provided in accordance with the requirements of this letter to protect the watershed of the vernal pools. Hopefully this letter provides the information you needed to address your concerns regarding the watershed of the vernal pools prior to the development of this area. Please give contact me if you need any additional information. Cc David DiReinzo Barbara Kennedy Don Rideout David Rick Debby Reece attachment ;ar.r~?ur Coy" • Suite 150 • Ca'fsbcd • CA 92008 F'J> PHOM5 ? IQ.63 72? 2S&3 BI=, O3 :9~ DUDEK & ASSOCIATES, INC. »St Environmental Sciences tl'.R ./..•••n N: S!47 J- .j :.'M « hl.*- 858-0112 March 1996 Ms. Terri Woods ^ - .. . Planning Department ^^ City of Carlsbad 2075 Las Paimas Drive Carlsbad. California 92008 Subject: Vernal Pools at North County Transit District Poinsema Rail Station, City of Carlsbad, San Diego County, California. Dear Ms. Woods: The purpose of this letter is to provide you with information regarding a proposed buffer area between the Potnsettia Properties Specific Plan development and the vernal pools located within the railroad right-of-way immediately south of the North County Transit District (NCTD) Pohisettia Rail Station in the City of Carlsbad. San Diego County, California. Dudek & Associates. Inc. (DUDEK), prepared the biological documentation and mitigation plans for the NCTD Poinseitia Rail Station, and assisted NCTD obtain the appropriate resource agency permits prior to station construction. DUDEK also prepared the Biological Resources Report (4 August 1995) for die HSL/BP/Michan property which is adjacent to the railroad right-of-way, and we have been tn.coordination with NCTD (Bill Farquhar), the California Department of Fish and Game (Jim Dice), and HSL/BP/Michan (Brian Murphy) regarding vernal pool protection, buffers, and permit compliance. mmm^m^-a^JibiESiBliSSfiSim**^^the railroad ii£M^frW3Y_isee_ Pftjnseitia .Properties biolocicai rcsoupccsrgDori east otdtc ^ beeve Lhat the western edge of the Poinsetlia Procenies should be maintasncd in open space as a buffer between the proposed development and the vernal pool habitat. An appropriate buffer area would extend from the edge of the railroad right-of-way eastward to at least the centerlxne of the existing din road. I have revieweo the site with Jim Dice, and he aefeedthatcoitructrQnofasQundwaitaiQng MjJk'MiJGSWnfi SeweenTh? ""-vatr and 'right-of-way would comprise the buffer As shown in the anachsd figure. *he irail would be a minimum of 17 feet east of the railroad right -of- -j.-ay, with drought-tolerant nauve landscaping and interpretative sisnage m the intervening area. The would be a minimum of -^6 feet east of the railroad risht-uf BS .•-H**fiRK PftCIFI : nwx PHONE NO. : 760 729 2860 ! ~W Sep. 03 1997 04:02PM F3 Poinsettia Properties --^ Vernal Pool Buffers _ _ page 2 ( Within the buffer (i.e., west of sounUwall and east of the right-of-way), the following uses may be appropriate: L A five- to eight-foot wide pedestrian trail composed of decomposed granite treated with concrete for stabilizing purposes. The trail should be located relatively dose to the soundwall. 2. Irrigated landscaping along the trail. Landscaping should consist entirely of native, drought-tolerant vegetation. Recommended species include laurel sumac (Mafosma laurtna) lemonadeberry (Rhus imegrifolia), Cleveland's sage (Salvia ctcvetandit), black sage (Salvia meUifera). flat-top buckwheat (Eriogonum fasciculatum), and bush monkey flower (Mimuius auranrtacus) . 3. A protective chain-link fence, west of the trail, at the edge of the railroad right-of-way. The fence would serve as a barrier between the pools and the trail. The fence should be located/sited in conformance with MCTD's Memorandum of Understanding with the California Department of Fish and Game. The fence should be far enough from die trail as to not distract from the enjoyment of the trail, but should provide adequate protection to Che vernal pool habitat. The enclosed exhibit illustrates the overall concept. It is my understanding that HSL/BP/Michan has offered to place interpretive si^is at certain (.___ points along the trail. 1 strongly recommend acceptance of this proposal, and you may want to incorporate this feature into the Specific Plan. A vernal pool display/interpretative signage program is being developed for the N'CTD Potnsettia Station, and you may want to draw from their final design, language, and specifications. This letter should serve as an addendum to the DUDEK report on Poinsettia Properties, If you have any questions or need additional information, please feel free to call me at (619) 942-5147, Very cruly yours, Dudek & Associates. Inc. W. Brown, Ph. S'enjor Biologist Jim Dice. CDFG Patricia Wolf. CDFG Brian Murphy, Benchmark Pacific Doua Avis. Benchmark Pacific \\ - / / / I. />. \/"/' '/' 'A-./ / / L - , f. or- IBS -' ft o - ceujt.niif Li. -TT" "r~r"",'' — 'r T» -_x '^"'Vr'Tr;"5'?:T?^'i':.'?" POiNSETTIA PROPERTIES PEDESTRIAN BUFFER EXHIBIT / r—W.-IW IV _ ___//- '* /C A I /""^••//l ^"/-«««>>-AH. fl f'CX—Ji^rj^-JWI.J-._ / - : II-- '--,..-.-trrr... Ji.«—*iv _^.i.,i .-,..,../:,,— ,t .. j y^^-Vl.^. •—r " /'"\ .-^•'•'•' • --- -~ ' '^ '-^ \"ix' , ' SECTION SUM I f « ?(y.O- ruitem »* or DETAIL PLAN SCMK r - »•»' 03 I •6 I o j. CJ From: <Kurt_Robtek@r1.fws.gov> To: "Mike Howes" <mhowes@hofmanplanning.com> Date: 8/31/041:24PM Subject: Re: Vernal Pool Watershed Mike - Thank you for passing along the information. This letter has been in our files and I have read it before. Our intention when requesting the delineation of the boundaries, size, and hydrology of the vernal pool watershed(s) was to gain a more accurate picture of the area. We do not have any information justifying the boundaries of the watershed and believe that it may extend beyond the trail. Watershed delineations are commonly done by "eye-balling" the topography and not with more accurate means. Given todays site status with the developments of NCTD and Water's End, and with the existing draining ditch extending from Poinsettia Commons, we feel that the watershed may have been altered. With this in mind we would like to minimize or negate any future impacts to the vernal pools. We would still like to review any of the information that can be gathered and look forward to continuing our efforts together in preserving this vernal pool complex. Thank you, Kurt J. Roblek Biologist U.S. Fish and Wildlife Service 6010 Hidden Valley Road Carlsbad, CA 92009 (760) 431-9440 ext 308 "Mike Howes" <mhowes@nofmanpla To: "Kurt Roblek" <Kurt Roblek @r1 .fws.gov>, "Jonathan Snapp-Cook" nning.com> <jonathan_snapp-cook@r1 .fws.gov> cc: "Barbara Kennedy" <bkenn@ei.carlsbad.ca.us> 08/25/200404:08 Subject: Vernal Pool Watershed PM Kurt & Jonathan, Did you receive the information I sent to your office last week regarding the watershed boundary for the vemat pool near the Poinsettia properties site? I believe that it provided the information you needed to determine that the drainage from the proposed Poinsettia Commons project does not impact the vernal pool adjacent to Water's End. Mike Howes CC: "Barbara Kennedy" <bkenn@ci.carlsbad,ca.us>, "Jonathan Snapp-Cook" <jonathan_snapp-cook@r1 .fws.gov> CITY OF CARLSBAD Engineering Department CONFERENCE NOTES Page: of_ DATE l>(3i^% TIME ?*&&* BY J>. A. LOCATIONS PROJECT NUMBER(S) PROJECT TITLE C-y 0 H SUBJECT ATTENDEES. UNDERSTANDING__ _ /) A T/* ^^.v- gg ^tfg^u,^.^ QjJ efa-K l*> >W to twr T/t. 3\ A HA J^.T /v^/v-^g; pjp /A/ tf^gfrt //»-o FOLLOW-UP REQUIRED ( ) ( ) For continued discussion and/or agenda, see attached sheet(s) Applicant Representative(s) City Representative(s) Form A HowesWeiler& Associates LAND USE PLANNING AND CONSULTATION TRANSMITTAL LETTER DATE: July 30, 2007 TO: David Rick, John O'Donnell, Steven Plyler, Brad Perozzi FROM: Mike Howes SUBJECT: Water Meters in Carlsbad We appreciate the time you spent with us last Thursday discussing the water meter issue. Accompanying this transmittal is a memo documenting the results of a review of all 50 City ordinances relating to Water District rules and regulations pertaining to the issuance of water meters, rates and reimbursements. This research showed that contrary to what most people believe, the existing ordinances did not appear to mandate that each unit would have to have an individual water meter. I have been involved with projects in Carlsbad since 1980 and everyone has always said that the Water District regulations mandate that each unit must have an individual meter. As shown by our research, the language is quite ambiguous and if anything, favors one meter instead of individual meters for each unit. If you have any questions or need any additional information, please feel free to contact me. RECEDED JUL 3 0 2007 CITY OF CARLSBAD PLANNING DEPT fel. 760.929.2288 Fax. 760.929.2287 Email. mfo@hwplai 5927 Balfour Court, Suite 202. Carlsbad. CA 92008 City of Carlsbad Finance Department July 19, 2007 Joan E. Cox, P.E. Harris & Associates 34 Executive Park Suite 150 Irvine, CA 92614-4705 Dear Joan: Here is the map showing the street lights on Embarcadero Lane. This street is going from a public street to a private street. Therefore, we need to change the street light assessment for the property owners on either side of the street. There are currently four public lights (highlighted in blue) that will be going from public lights to private lights. I have also had our CIS Department print out a map showing the individual parcels that front either side of the street. If you have any questions, you can contact me at (760) 602-2418 or the Project Engineer, David Rick, at (760) 602-2781. Thank you for your prompt attention to this matter. Kevin Branca Assistant Finance Director C: David Rick 1635 Faraday Avenue • Carlsbad, CA 92008-7314 • (76O) 602-2430 • FAX (76O) 602-8553 www.ci.carlsbad.ca.us • Business License (760) 602-2495 • Utility Billing (76O) 6O2-2420 • Purchasing (76O) 602-246O - FAX (76O) 602-8556 - Bid Line (76O) 6O2-2464 r a ^ 4U pa1^' n ' ; LvP h*-iJ a i-^e» >' '"—H^Z- h ^ ft z 3<i **r- f., M ?)j^/'>| N y (^ . J* C ?L •y SURVEY TO BF RETRACED. (SEE LEGEND AND MONUMENTATION NOTES ON ShL .T NO. 2) ~ ^AND „'<S> ^—\ 3/stf^Sfa Exp. 9/30/08 ) 30 j GARY A. LINTVEDT, LS 4593 LICENSE EXPIRES 9/30/2008 ^yh. is KK/+ ^roV^ CITY ENGINEER'S STATEMENT I, ROBERT T. JOHNSON, JR., ACTING CITY ENGINEER OF THE CITY OF CARLSBAD, CALIFORNIA, HEREBY STATE THAT I HAVE EXAMINED THIS MAP. THIS MAP DOES NOT APPEAR TO BE A MAP OF A MAJOR SUBDIVISION" FOR WHICH A FINAL MAP IS REQU«ED PURSUANT TO SECTION 66426 OF THE SUBDIVISION MAP ACT. I FURTHER STATE THAT THIS PARCEL MAP CONFORMS TO THE TENTATIVE PARCEL MAP AMD APPROVED ALTERATIONS THEROF AND THAT ALL PROVISIONS OF THE SUBW/tSIQN MAP ACT OF THE STATE OF CALIFORNIA AND ANY LOCAL ORDINANCE APPLICABLE AT THE TIME OF THE APPROVAL OF THE TENTATIVE PARCEL MAP, IF REQUIRED, HAVE BEEN COMPLED WITH, AND AM SATISFIED THAT THIS PARCEL MAP IS TECHjNK2M-iX CORRECT, A!p HAVE REJECTED ON BEHALF OF THE PimM^^mi&SX&ate OffilCT»'tiPi&lEjHBteEMi FOR PUBLIC STRESr jfS^^ffiffijftr 'PURPOSES. OClAtTSTRSET; AND HWE RlJECTED ON BEHALF OF THE CITY OF CARLSBAD THE IRREVOCABLE OFFER OF DEDICATION OF THE PUBLIC ACCESS AND RECREATION EASEMENT AS SHOWN HEREON. NOTE: SECTION 66477.2 OF THE GOVERNMENT CODE OF THE STATE OF CALIFORNIA PROVIDES THAT A REJECTED OFFER SHALL REMAIN OPEN AND SUBJECT TO FUTURE ACCEPTANCE BY THE CITY. HEREBY APPROVE AND RECOMMEND SAID MAP. BY: ROBERT T. JOHNSON, JR., RCE 28515 ACTING CITY ENGINEER REGISTRATION EXPIRES 3-31-08 DATE S CERTIFICATE RLE NO. 2007- OWNER'S STATEMENT WE, THE UNDERSIGNED, BEING ALL THE PARTIES HAVING ANY RECORD TITLE INTEREST tN THE LAND COVERED ON THIS MAP, DO HEREBY CONSENT TO THE PREPARATION AND RECORDATTON OF THIS PARCEL MAP. CARLSB, D WE HEREBY^OFFER TO DEDICATE AN EASEMENT FOR PUBLIC STREET AMD UTILITY. EASEMENT PURPOSES, OCEAN STREET, AS SHOWN HEREON. WE HEREBY MAKE AN tRREVOCABLE OFFER OF DEDICATION OF AN EASEMENT FOR PUBLIC ACCESS AND RECREATION PURPOSES, AS SHOWN HEREON. PETER C. DONALD ESTABLISHED M ALD FAMILY TRUST BY: PETER AMERICAN TITLE COMPANY AS TRUSTEE UNDER AUGUST 17, 2005 AS INSTRU* 2Q05-070375rW^QFnCIAL RECORDS. BY: STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO) ) SS LEGAL BEING A ! THAT POR ACCORDHM FEBRUARY HUNDRED! ALSO THA SOUTHWES SOUTH 57 OF THE P EXCEPTING HIGH TIDE A PARCEL THIS MAP STATE OF NO. 6178, TOTAL AR BEFORE ME, STATE OF CALIFORN COUNTYbfc^SAN DIE A NOTARY PUBLIC, PERSONALLY APPEARED PERSONALLY KNOWN TO ME (OR PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE) TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE WITHIN INSTRUMENL^ND ACKNOWLEDGED TO ME THATCSEXSHE EXECUTED THE SAME INmjS>HER AUTHORIZED CAPACITY, i ir% ^^^L* -n r%v^^^T^^^/i tr^i™* r^i/^k i A TI if%^ ^vk i ^^^^^ ON A NOTARY PUBLIC^ PERSONALLY KNOWN SATISFACTORY EVIDf SUBSCRIBED TO THE THAT HE/SHE EXECl A h ir\ -n i A T mvy i. JJ«T* /L Page 1 of 1 David Rick - Encroachment Agreement for Poinsettia Commons From: David Rick To: Nicholas Psyhogios Date: 06/27/2007 4:12 PM Subject: Encroachment Agreement for Poinsettia Commons I will need six copies of the legal description of the proposed PUE OR six copies of the final map showing the proposed easement. Reduced 11" X 17" versions can be used as long as they are legible. I also need copies of the signed improvement and grading plans. You can just ask for them when prints sets are requested by us. I will use these exhibits to send to the utility companies for their review and comment. Have you or anyone else involved with the project contacted the utility companies and informed them of the development plans for Poinsettia Commons? At this stage, things could get complicated if any of them were to object to the proposed encroachments. file://C:\Documents and Settings\DRICK\Local Settings\Temp\XPgrpwise\46828C78GW... 06/28/2007 Ronald Roth From: Ronald Roth [ronaldr@projectdesign.com] Sent: Monday, June 11, 2007 1:46 PM To: Drick@ci.carlsbad.ca.us Cc: Tomas Gonzales; Nicholas Psyhogios Subject: Poinsettia Commons Final map David: Attached find the following with explanation messages for each item: Final Map Title Sheet: We removed the "reserve an easement for Private Reciprocal Drainage over all of Lots 1, 2, 3, 4 and 5 for the benefit of of Lots 1, 2, 3, 4 and 5", since said reservations are reserved in the attached recorded documents recorded 5-31-2007 as Doc.# 2007-0369208 and 2007-0369209 collectively. Final Map Sheet 5 of 5 Sheets (Non-Title Sheet) , We modified Notes D. and E. to address the items called for in the Conditions of Approval \S and are tied to the above referenced recorded documents. Please review and comment. Thank you Ronald E. Roth, PLS Associate Project Design Consultants 619-881-2544, x2128 619-234-0349 FAX ronaldr@proj ectdesign.com www.proj ectdesign.com 3153 Msht01.pdf 3153FMsht05_Non-Doc.2007-0369208.Doc.2007-0369209. Title_rev.pdf pdf pdf Q&V SQ J V! - U (06/06/2007) David Rick - Exhibit D Drain ^easement at Poinsettia Commons _ Page 1 From: "Ronald Roth" <ronaldr@projectdesign.com> To: "drick@ci.carlsbad.ca.us" <drick@ci.carlsbad.ca.us> CC: "Nicholas Psyhogios" <nicholasp@projectdesign.com> Date: 06/05/2007 3:50 PM Subject: Exhibit D Drainage easement at Poinsettia Commons David: I reviewed your comments made to the legal description and have the following comments: from the POB, I traverse down a bearing and distance (L1 - 8 feet); then I depart and traverse to an angle point in the boundary of Lot 239 (it's a "to-call"; i.e. an angle point in the boundary of Lot 239); thence I CONTINUE from the last BEARING call of south 69-32-04 west. I see only two items that could be considered an error; i.e. Line 17, the direction should be "southwesterly", but it's qualified with a bearing in the correct direction and the bearing closing back to the POINT OF BEGINNING being 4 seconds off is held by "the northwesterly line of Lot 227" and then continues back to the POB. The 4 seconds in 275.84 feet is 0.005', but is controlled by the "northwesterly line of lot 227 and the continuing bearing. Please advise Ronald E. Roth, PLS Associate Project Design Consultants 619-881-2544, x2128 619-234-0349 FAX ronaldr@projectdesign.com www.projectdesign.com HowesWeiler& Associates LAND USE PLANNING AND CONSULTATION TRANSMITTAL LETTER DATE: May 31, 2007 TO: David Rick FROM: Theresa Brassington SUBJECT: Poinsettia Commons/Bluwater Crossing Please find attached the redlined and revised versions of the Poinsettia Commons/Bluwater Crossing CC&R's, including the Operational and Maintenance Plan and reduced BMP map. Also included are the redlined Reciprocal Easement and Reciprocal Maintenance Agreements. Trammel Crowe's attorney has made the following comments on the CC&Rs: On Exhibit F, the cost of shared maintenance of the CDS unit is not part of the elements of variable assessments. This cost is covered in the Mutual Benefit Agreement. Exhibit D-page 5 See Section 1.1.21 (a) which defines Association Property as including Private Streets and storm drains and drainage facilities, and Section 2.1.3 which requires the Association to maintain the Association Property. Please call me at (760) 929 2288 if you have any questions or need further information. Regards, Theresa Brassington Page 1 of 1 Rick Boyer From: David Rick [Drick@ci.carlsbad.ca.us] Sent: Wednesday, May 31 , 2006 1 0:56 AM To: RickB@projectdesign.com Subject: Re: SWPPP Fees - City of Carlsbad The 15 loft and 51 live/work units are considered multi-family residential and fees will be assessed accordingly per unit. The commercial and retail portion of the project will be assessed under the commercial/industrial fee. >» Rick Boyer <RickB@projectdesign.com> 05/31/06 10:39 AM >» David - Good Morning. I have a question regarding the City of Carlsbad fee schedule as it relates to the SWPPP fee. The project we will be submitting includes 1 commercial unit, 1 retail unit, 15 lofts, and 51 live/work units. I figure that the retail and commercial will fall into the Commercial/Industrial category, but I am not sure how the City would like the 15 lofts and 51 live/work units to be represented. Would they be single family detached or multi family attached? The intitial costs for the units are the same, but the subsequent costs are different. Please let me know. Thank you - j Rick Richard J. Boyer / 4 Design Engineer ' PROJECT DESIGN CONSULTANTS 619.881.2573 Direct rickb@projectdesign.com www.projectdesign.com .UN 06 m ENGINEERING DEPARTMENT 5/31/2006 CITY OF CARLSBAD ENGINEERING DEPARTMENT LAND USE REVIEW May 30, 2007 TO: Barbara Kennedy - Associate Planner FROM: David Rick - Assistant Engineer COMPLETENESS REVIEW PROJECT ID: CD 07-12 Poinsettia Commons/Bluewater Crossings The Engineering Department has completed its review of the above referenced project for application completeness and has determined that the application and plans submitted for this project are complete and suitable for continued review. Engineering staff does not have any comments to add to the project. Please add the following conditions to the approving resolution/letter: 1. The driveway widths in the garage shall be a minimum of 24 feet, unless a narrower width is approved by the City Engineer. 2. Each parking space within the garage shall be an assigned space. The CC&R's shall disclose that each unit and business that is served by the garage will be assigned their required number of parking spaces and said spaces will be clearly marked. If you or the applicant has any questions regarding the above, please either see or call me at extension 2781. David Rick Assistant Engineer - Public Works Department, Development Services Division H:\LIBRARY\ENG\WPDATA\MISC\COMPREV DATE: TO: FROM: o HowesWeiler& Associates LAND USE PLANNING AND CONSULTATION TRANSMITTAL LETTER May 24, 2007 David Rick Mike Howes SUBJECT: Reciprocal Easement Agreement- Poinsettia Commons Please find attached a copy of the Reciprocal Access Agreement for the Waters End Homeowners Association, as well as for the Bridge Housing Corporation. Please feel free to call with any questions. 760.929.2288 Fax. 760.929.2287 Email. info@hwplanninc 5927 Balfour Court, Suite 202, Carlsbad. CA 92008 Embarcadero Lane Page 1 of 1 David Rick - Embarcadero Lane From: "Peacock, Connie" <CPeacock@semprautilities.com> To: <Drick@ci. carlsbad. ca.us> Date: 05/21/2007 2:39 PM Subject: Embarcadero Lane David, per your voice-mail, you indicated that Embarcadero Lane will now be a General Utility Easement. If that is correct SDG&E does not have a conflict with the Street Vacation of Embarcadero Lane. Connie P. Peacock San Diego Gas & Electric (858)650-4117 (619) 819-4113 Fax file://C:\Documents and Settings\DRICK\Local Settings\Temp\XPgrpwise\4651AF22G... 05/22/2007 HowesWeiler& Associates LAND USE PLANNING AND CONSULTATION May 18, 2007 David Hauser Deputy City Engineer 1635 Faraday Avenue Carlsbad, CA 92008 RE: Grading Prior to Final Map for CT 04-11 Poinsettia Commons Dear David, Trammell Crow would like to request permission to grade prior to the final map approval of Poinsettia Commons, CT 04-11. We have been working diligently with David Rick and Barbara Kennedy for over 6 months to address all conditions of approval. At this time we have addressed all conditions of approval, bonds have been signed & submitted to the City and David is ready to schedule the street vacation of Embarcadero Lane for its first hearing with the City Council. David has told us that the street vacation must be heard twice and at the second hearing the final map will also be put on the agenda for City Council approval. Trammell Crow is ready to start grading immediately, and the second hearing for the street vacation will not occur for six weeks at a minimum. We realize that we can not grade or modify Embarcadero Lane until the street vacation process has been completed. Trammell Crow wants to start the excavation of the underground parking garage and podium structure that will be located on the lot to the west of Embarcadero Lane. The attached exhibit shows the area that will be graded and the cross section on the exhibit shows that it will have no adverse impact on Embarcadero Lane (no shoring). Trammell Crow is paying extremely high daily interest costs on this site and the ability to start grading prior to the final map and finalization of the street vacation would represent a significant cost savings. We believe that this proposal is reasonable and request that you allow the grading of Poinsettia Commons to start prior to final map approval. If you have any questions or need any additional information please feel free to contact me. Sincerely, Mike Howes Cc Barbara Kennedy David Rick Attachment *>r 760-929.22 760.929.2287 5927 Balfour Court, Suite 202. Carlsbad. CA 92008 CJf PROPERTY LINC GROUND PODIUM WALL TYP SECTION A-A PROPERTY EMBARCADERO LANE (PRIVATE) r. linn inn NCTD PROPERTY r.WATERS END PROPERTY GRADING EXHIBIT ox ir 5///o;ro occw pmoff ro STREET VACATION RECORDATION CT Page 1 of2 David Rick - RE: Poinsettia Commons From: "Perozzi, Brad" <bperozzi@tcresidential.com> To: "David Rick" <Drick@ci.carlsbad.ca.us> Date: 05/18/2007 4:08 PM Subject: RE: Poinsettia Commons CC: "Donna Harvey" <Dharvey@ci.carlsbad.ca.us>, <mikehowes@hwplanning.com>, <CRStJohn@pbsj .com>, "Nicholas Psyhogios" <nicholasp@projectdesign.com>, "Barbara Kennedy" <Bkenn@ci.carlsbad.ca.us>, "LaFever, Robert A." <rlafever@tcresidential.com> David- Thank you for allocating so much of your time to our project over the last couple weeks, we appreciate your time and your staff's time. I wanted to take a moment and provide a brief summary of where TCR is in relation to the "Final Six" items we need to accomplish prior to being scheduled for our public hearings. 1. TCR is revising the CC&R's per your comments and Barbara Kennedy's (which we received yesterday). We should have a revised set of CC&R's on Monday or Tuesday. 2. We have the Water's End Reciprocal Easement signed and are making some of the requested changes to that document and the Bridge Housing Reciprocal Easement where signing is eminent. -3i—We turned in the signed BMP maintenance agreement to Donna yesterday. —4r« We turned in the 2 traffic bonds into Donna yesterday as well. 5. As mentioned, we are making CC&R's changes that Barbara requested and at that point I think she will be in position to approve us. (I know you will catch up with each other internally.) —{r-> Our dry utility consultant is in the process of trying to draw a conclusion to the SDG&E issue. In a nutshell, the CC&R's will be back into the city early next week along with the reciprocal easements. I hope we are able to clear the SDG&E issue by then as well and be placed on the appropriate council agenda's. Thanks again, have a nice weekend. Brad Perozzi, Managing Director, Trammell Crow Residential From: David Rick [mailto:Drick@ci.carlsbad.ca.us] Sent: Tuesday, May 15, 2007 3:40 PM To: Perozzi, Brad Cc: Donna Harvey; mikehowes@hwplanning.com; CRStJohn@pbsj.com; Nicholas Psyhogios file://C:\Documents and Settings\DRICK\Local Settings\Temp\XPgrpwise\464DCF72G... 05/22/2007 Page 2 of 2 Subject: Poinsettia Commons The FM is being circulated for signature. It is currently with our Treasurer awaiting his signature. Next will be the Attorney's Office signature but they will not sign until all the conditions are met which leads me to the following: I just finished reviewing the revised CC&R's and easement agreements and I still have changes that need to be made. These redlined documents are at the counter under Mike Howes name for pickup. I believe my comments are self-explanatory but if you or Mike wish to meet and go over them, please let me know. Once they are corrected, you will need to obtain the necessary signatures, record the easements and agreements and provide me with a copy of the recorded documents. The BMP maintenance agreement that I gave Nick needs to be signed with notary and returned to me or Donna Harvey. The two traffic signal bonds and agreements that Mike Howes received need to be signed with notary and returned to Donna Harvey if they have not already been returned yet. Planning Department approval is needed. I'm still trying to contact Connie Peacock of SDG&E to determine if the easement reservation described in the attached letter is still applicable. I don't recall who, but either you or someone representing you said that they spoke to Connie and said that she said she no longer needed that reservation. I just need to get written confirmation (an email is fine) that this is true so if you want to follow up on this and have her email me, that would be helpful as I have been unsuccessful in my attempts to contact her. The above items need to be completed before the map and vacation is scheduled for City Council hearing. Once these items are met, all conditions of approval will have been satisfied and I can schedule for City Council. file://C:\Documents and Settings\DRICK\Local Settings\Temp\XPgrpwise\464DCF72G... 05/22/2007 HowesWeiler& Associates LAND USE PLANNING AND CONSULTATION May 10,2007 Re: Poinsettia Commons/Bluwater Crossing CC&Rs Dear David, Attached is the final revision to the Bluwater Crossing CC&Rs. Included are a redline version showing the changes made to the CC&Rs to address all of the items the City wants in connection with the BMPs and the CDS units. A clean copy of the revised CC&Rs is also attached for your use. Exhibit F will now be the Operational and Maintenance Guildelines for CDS Units. Exhibit E will now be the BMPs entitled Spill Prevention and Control (WM-4). Please call if you have any questions. Regards, Mike Howes RECEIVED MAY 102007 ENGlNbtRtNG DEPARTMENT 760.929.2288 Fax. 760.929.2287 5927 Balfour Court. Suite 202. Carlsbad, CA 92008 Page 1 of 1 ^ , H"'' ' S< David Rick - Corner Sight Distance (CT 04-11) From: Brandon Miles To: David Rick Date: 05/09/2007 3:05 PM Subject: Corner Sight Distance (CT 04-11) Dave, Based on the Engineering and Traffic Survey, the posted speed limit is 30 mph. Since the project is not changing the roadway geometries or lane configuration, I wouldn't expect the speed limit to change after this project has completed the required improvements. The recommended corner sight distance is 330 feet as shown in the Highway Design Manual (Table 405.1A). Brandon Miles, P.E. Associate Engineer - Transportation City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008 760-602-2745 760-602-8562 (Fax) file://C:\Documents and Settings\DRICK\Local Settings\Temp\XPgrpwise\4641E32BG... 05/09/2007 Page 1 of2 Donna Harvey - RE: UPDATE Poinsettia Commons From: Donna Harvey To: Brad Perozzi Subject: RE: UPDATE Poinsettia Commons Brad, I left at noon yesterday with a migraine. I will review the paperwork again later today and get back with you. Donna >» "Perozzi, Brad" <bperozzi@tcresidential.com> 05/07/2007 1:03 PM >» I believe Bob LaFever in our office provided sufficient documentation with the bond submittal to conclude that my signature can bind the applicant entity. If this is not clear, he can stop by anytime this week to provide a secondary signature. From: Donna Harvey [mailto:Dharvey@ci.carlsbad.ca.us] Sent: Friday, May 04, 2007 8:23 AM To: David Rick; mikehowes@hwplanning.com; Nicholas Psyhogios Cc: CRSOohn@pbsj.com; Perozzi, Brad Subject: RE: UPDATE Poinsettia Commons Nick, I have a copy of the TCR Southern California III, Inc. Certificate of Corporate Officer dated 10/10/06. This document lists the officers by name and title. The previously processed agreements were signed by both Brad Perozzi as VP and Robert LaFever as Assistant Secretary. The signature of two officers is sufficient authorization for a corporation. If you are asking whether the City will accept a single signature, Brad Perozzi, we require an official document (Corporate Resolution) specifically stating that Brad has authority to bind the corporation by his signature alone. I hope this answers your question. Donna Harvey Associate Analyst City of Carlsbad Engineering Dept 1635 Faraday Ave Carlsbad CA 92008 >» David Rick 05/03/2007 3:09 PM >» Nick, regarding your phone message about maintenance of the CDS unit, the City is not maintaining this BMP. It about:blank L, / OJ~ - / / 05/08/2007 Page 2 of2 is (or should be) maintained by the Waters End HOA. Before this project went to City Council for approval, we discussed this issue with the developer at that time. The Poinsettia Commons HOA will share the cost and responsibility of this CDS unit. I recall some specifics being incorporated into the SWMP. Regarding the signature, I forgot to check with Donna. She should have the paper work for signature authorization since she needed it for the bonds. Unfortunately, she is out the rest of the day but she will be back tomorrow. I am out tomorrow, so perhaps Donna can look at the authorization to sign and get back to you tomorrow as to whether Brad can be the sole signature for Poinsettia Commons LLC. If not, I will talk to her Monday about it. esign.com> 05/03/2007 11:51 AM »> David, Thanks for the update. We will make the changes to the final map and also send you a copy of the agreements which contain the private access language for Lots 2, 3, 4, and 5. The other outstanding issue was the signatures on the title sheet of the final map. Have we confirmed that Brad Perozzi is the only owners signature required on the title sheet? Thanks, Nick From: David Rick [mailto:Drick@ci.carlsbad.ca.us] Sent: Tuesday, May 01, 2007 3:55 PM To: mikehowes@hwplanning.com; Nicholas Psyhogios Cc: Donna Harvey; CRStJohn@pbsj.com Subject: UPDATE Poinsettia Commons Here is what I've found out: Donna Harvey is drafting two separate Security Agreements for each traffic signal at the two separate connections between Embarcadero and Avenida Encinas as they were not prepared with the original agreements. The park in-lieu fee bond was sent to Bob Lafever on April 26th. The general utility and access easement and public utility and access easement are the same according to Rick St. John and he does not see any reason to have both offered for dedication. Make sure that whichever one is kept that leaders point to the portion for the water meters. Regarding the private access easement granted to the neighboring owners within the Poinsettia Properties Master Plan, Rick does not recall seeing such an easement. Once you've checked the agreement and easement that was being drafted for Lot 4 as we taleked about in our meeting, let me know if language has been added for all the planning areas. If not, language will need to be added or a separate access easement will need to be drafted and recorded. aboutblank 05/08/2007 v HowesWeiler& Associates LAND USE PLANNING AND CONSULTATION ? MEMORANDUM DATE: May 3, 2007 TO: David Rick FROM: Mike Howes SUBJECT: Revised Water's End Easement Enclosed is the blackline execution copy of the revised Water's End reciprocal easement and maintenance agreement. The blackline reflects the changes necessary to include the City's easement over Embarcadero Lane. c /*JA kv Sempra Energy utility" RECEIVED APR 132007 A -i < onrw ENGINEERINGApnl 5,2007 DEPARTMENT City of Carlsbad Engineering Department Attn: David Rick 1635 Faraday Ave Carlsbad, CA 92008 Re: 06-06: Poinsettia Commons - Street Vacation of a Portion of Embarcadero Lane This letter is in response to your request to comment on any conflicts San Diego Gas & Electric Company might have regarding the vacation mentioned above. SDG&E currently has existing underground gas and electric facilities in the area proposed to be vacated. When processing this, please place a reservation in the closing resolution over the Northerly 60.00 feet of the Southerly 205.00 feet for these facilities. Please provide this office with a copy of the Final Closing Resolution. Should you have any question, please contact me at (858) 650-4117. Thank you. Sincerely, Connie P. Peacock Administrative Associate Real Estate & Facilities at&t Right of Way / Liaison AT&T California 4220 Arizona Street Room 200 San Diego, CA 92104 March 16,2007 David Rick City of Carlsbad Engineering Department 1635 Faraday Ave Carlsbad, CA 92008 Re: STV 06-06, Poinsettia Commons Thank you for your notice regarding the proposed street vacation in the vicinity of: A portion of Embarcadero Lane Pacific Bell Telephone Company dba AT&T California has no objection to the proposed street vacation. Yours truly, Tiffany Lowery Right-of-Way Agent Pacific Bell Telephone Company dba AT&T California 4220 Arizona St., Room 200 San Diego, CA 92104-1715 (619)574-2804 29 200? RECEIVED MAR 29 2007 HowesWeiter ' *?& Associates LAND USE PLANNING AND CONSULTATION MEMORANDUM DATE: February 8, 2007 TO: Barbara Kennedy FROM: Mike Howes, AICP SUBJECT: Status of Conditions for Poinsettia Commons CT-04-1 I/PUD 04-10/SDP 04-09 Condition 7 - Tentative Tract Map mylars previously submitted by PDC. Condition 8 - Approving Resolutions previously submitted on exhibits prepared by PDC. Condition 13 - March 21,2006 Water and Sewer Facilities Availability letter attached. Conditions 14,15 - Affordable Housing Agreement to be supplied by Debbie Fountain. Trammell Crow has provided the appropriate wording for this agreement. Conditions 16,17 - Final Landscape and Irrigation Plan previously submitted. Conditions 18a-h - See attached MBA and CC&Rs. The attached Jackson, DeMarco, Tidus & Peckenpaugh letter dated February 2, 2007 refers to the applicable sections of the CC&Rs. Condition 19 - See CC&Rs 2.4. 2.5.1 Condition 24 - Notice of Restriction dated January 18, 2007 Condition 27 - Notice of Proximity to Transportation Corridor dated January 18, 2007 Condition 28 - Multi-Impact Notice for Air/Rail/Transit dated January 18, 2007 Condition 30a-d - Paleontological report and mitigation monitoring letter dated January 31, 2007 attached. Condition 31 - Agricultural conversion fee was paid by the previously approved Final Map CT 00-16. Condition 32 - Remediation measures are addressed in the URS report dated November 27, 2006 and the December 22, 2006 Albus-Keefe letters attached. - HowesWeiler& Associates LAND USE PLANNING AND CONSULTATION Condition 41 - Trail Easement Dedication to City of Carlsbad. Please see final map documents prepared by PDC Condition 42 - The September 1, 2006 NCTD License Agreement is attached. Condition 43 - Dirt haul route attached. Condition 44 - See MBA 6.1 attached. Condition 51 - Albus-Keefe Preliminary Geotechnical Investigation letter dated October 5, 2006 attached. Condition 52 - See CC&R 6.1 Public Utility Easement. HowesWeiler& Associates LAND USE PLANNING AND CONSULTATION DECEIVED 18 2007 January 17,2007 Barbara Kennedy ENGINEERING City of Carlsbad DEPARTMENT 1635 Faraday Avenue Carlsbad, CA 92008 RE: Poinsettia Commons Dear Barbara: Per your direction, Trammell Crow Residential would like to request an extension for the other discretionary approvals permits that were approved concurrently with the Tentative Map for Poinsettia Commons, PUD 04-10/SDP 04-09/CUP 04-15/CDP 04-26. Two checks accompany this letter: $780.00 for the extension of CUP 04-15, and $765.00 for the extension of CDP 04-26. It is my understanding that there are no additional fees required for the extension of PUD 04-10 and SDP 04-20. All of the findings required by section 20.12.110 of the Carlsbad Municipal Code for the extension of a Tentative Map can be made as follows: 1. The development permitted by the Tentative Map and other approved discretionary permits for Poinsettia Commons is in conformance with the General Plan. 2. The project is in conformance with Chapters 20 & 21 of the Carlsbad Municipal Code. 3. The project is in conformance with Carlsbad's Growth Management Program. 4. The applicant, Trammell Crow Residential, is actively pursuing a final map for the project. They have gone through several plan checks, have been addressing the conditions of approval and hope to obtain final map approval and a grading permit in the next 30-60 days. They plan to submit building plans in the next few weeks. 5. As stated in the first paragraph, we are requesting that all discretionary permits approved per Chapter 21 of the Municipal Code are also being extended concurrently with the extension of the Tentative Map. HowesWHter& Associates LAND USE PLANNING AND CONSULTATION In conclusion, we believe that this letter and the checks that accompany it will allow you to deem the application for the extension of CT 04-11 complete and schedule it for the first available Planning Commission hearing with a recommendation of approval. Please feel free to contact me if you have any questions or need any additional information. Sincerely, Mike Howes AICP Cc David Rick Brad Perrozzi Robert LaFever 50.929.2288 Fax. 760.929.2287 5927 Balfour Court, Suite 202, Carlsbad. CA 92008 CARLSBAD FIRE DEPARTMENT Fire Protection Services PROJECT CONDITION REPORT PROJECT NAME: Poinsettia Commons Date: 01/09/07 Project number: CT 04-11 / DWG: 442-4 Staff Planner: Engineer: D. Rick Project conditions: (Note: The following identifies specific conditions necessary to achieve Fire Department approval.) Fire has reviewed this request and has no additional comments or conditions other than those already approved, and agree to the request to extend the Tentative Map. GR INTER-OFFICE REQUEST FOR COMMENTS Tentative Map Extension DATE: December 26, 2006 TO: ASSISTANT PLANNING DIRECTOR, Don Neu DEPUTY CITY ENGINEER - DEV SERVICES, David Mauser DEPUTY CITY ENGINEER -INSPECTION DIV., Pat Vaughan DEPUTY CITY ENGINEER - DESIGN DIV., Bill Plummer FIRE MARSHAL - James Weigand PW/MAINT. & OPERATIONS - Joe Adams FROM: PROJECT ENGINEER, David Rick We have received a request to extend the subject map. Please reviev' the attached tentative map and conditions of approval and return your comments and/or new conditions to me by January 9th, 2007. REPLY: fl/ff Date: / H:\Development SetvicesVPROJECTS\CT FILESVCT 04\CT 04-11 Poinsettia Transit Village - RickVCT 04-11X1\CT 04-11X1 Poinsettia Commons TENTATIVE MAP EXTENSION REQUEST FOR COMMENTS-INTEROFFICE.doc INTER-OFFICE REQUEST FOR COMMEND Tentative Map Extension DATE: December 26, 2006 TO: ASSISTANT PLANNING DIRECTOR, Don Neu DEPUTY CITY ENGINEER - DEV SERVICES, David Hausel DEPUTY CITY ENGINEER -INSPECTION DIV., Pat Vaughan DEPUTY CITY ENGINEER - DESIGN DIV., Bill Plummer FIRE MARSHAL - James Weigand PW/MAINT. & OPERATIONS - Joe Adams FROM: PROJECT ENGINEER, David Rick We have received a request to extend the subject map. Please review the attached tentative map and conditions of approval and return your comments and/or new conditions to me by January 9th, 2007. REPLY:j uJT of By:Date: H:\Development Services\PROJECTS\CT FILESXCT 04\CT 04-11 Poinsettia Transit Village - RickVCT 04-11X1\CT 04-11X1 Poinsettia Commons TENTATIVE MAP EXTENSION REQUEST FOR COMMENTS-INTEROFFICE.doc DATE: TO: FROM: INTER-OFFICE REQUEST FOR COMMENTS Tentative Map Extension December 26, 2006 'U x ASSISTANT PLANNING DIRECTOR, DEPUTY CITY ENGINEER - DEV SERVICES, David Mauser DEPUTY CITY ENGINEER -INSPECTION DIV., Pat Vaughan DEPUTY CITY ENGINEER - DESIGN DIV., Bill Plummer FIRE MARSHAL - James Weigand PW/MAINT. & OPERATIONS - Joe Adams PROJECT ENGINEER, David Rick eived We have received a request to extend the subject map. Please review the attached tentative map and conditions of approval and return your comments and/or new conditions to me by January 9th, 2007. REPLY'' \. SDP 01-0*1 Cup c^c Date: H:\Development Services\PROJECTS\CT FILESVCT 04VCT 04-11 Poinsettia Transit Village - RickVCT 04-11X1\CT 04-11X1 Poinsettia Commons TENTATIVE MAP EXTENSION REQUEST FOR COMMENTS-INTEROFFICE.doc INTER-OFFICE REQUEST FOR COMMENTS Tentative Map Extension DATE: December 26, 2006 TO: ASSISTANT PLANNING DIRECTOR, Don Neu DEPUTY CITY ENGINEER - DEV SERVICES, David Mauser DEPUTY CITY ENGINEER -INSPECTION DIV., Pat Vaughan DEPUTY CITY ENGINEER - DESIGN DIV., Bill Plummer FIRE MARSHAL - James Weigand PW/MAINT. & OPERATIONS - Joe Adams FROM: PROJECT ENGINEER, David Rick We have received a request to extend the subject map. Please reviev; the attached tentative map and conditions of approval and return your comments and/or new conditions to me by January 9th, 2007. REPLY: / By: Date: H:\DeveIopment Services\PROJECTS\CT FILESXCT 04\CT 04-11 Poinsettia Transit Village - Rick\CT 04-11X1\CT 04-11X1 Poinsettia Commons TENTATIVE MAP EXTENSION REQUEST FOR COMMENTS-INTEROFFICE.doc HowesWeiterft Associates LAND USE PLANNING AND CONSULTATION DATE: December 15, 2006 TO: David Mauser, Frank Jimeno, Pam Drew, Pat O'Day, Bob Sommers, Water District FROM: Mike Howes SUBJECT: Water Meter Requirements The data provided on the attached charts and in-this memo are the result of a review of all 50 city ordinances related to Water District rules and regulations pertaining to the issuance of water meters, rates and reimbursements. The discussion below includes a brief ordinance review and an attempt to determine a logical progression and intent of the ordinances when adopted. Exhibit A lists the relevant ordinances with the pertinent language quoted directly from the adopting documents. Exhibit B includes copies of the relevant ordinances in total. Exhibit C provides a survey of water meter requirements by jurisdiction. Ordinance No. 10 states that each house or building under separate ownership must be provided with its own service connection or connections. A sentence in this ordinance also states that two or more houses or buildings under new ownership and on the same lot or parcel of land may be supplied through one service connection or a separate connection can be provided for each building. Although Ordinance No. 10 does not specifically address the issue of multiple ownerships in one building or commonly known now as, condominium ownership, the argument could be made that that condition is implied. The ordinance does address multiple ownerships on one lot and offers the ability to have a single meter or multiple meters. Ordinance No. 22 repeals No. 10 but only when there are inconsistencies. Apparently, there was confusion regarding connections made to various types of ownership. In Ordinance No. 22, individual, multiple, and condominium ownerships are now defined and acknowledged. The fact that "condominium" is identified and defined as "a connection to serve a joint ownership property which contains single ownership properties within its boundaries" leads one to believe that this definition was intended to refine the "or connections" issue raised in Ordinance No. 10. Ordinance No. 26 restates the same definitions found in No. 22 validating that the city wanted to retain the same terms and conditions. In No. 26, the city further acknowledges condominium ownerships when they state that rates shall be charged against the property on which it [the water] is furnished and against the owner and a charge against the owner and the occupant using the water. Both the owner and occupant are deemed responsible for money due and unpaid. Further, the District is required to charge, on a living unit basis, each connector to such water line a pro-rata amount equal to the cost of the line divided by the number of living units. Ordinance 37 seems to have accepted the types of ownerships because the issue is no longer addressed. Now No. 37 simply states that with the issuance of a valid permit, application, and Tel. 760.929.2288 Fax. 760.929.2287 Email. info@h< HowesWeilep& Associates LAND USE PLANNING AND CONSULTATION payment of fees, a water meter may be issued by the District Manager. This is even more simply stated than the previous ordinances addressing type of ownerships. Based on a review of existing City documents, the argument could easily be made that the existing ordinances allow the City the ability to approve one meter for a condominium project. It appears that the City has always indirectly provided for different types of ownerships although it was never succinctly or clearly stated. It makes logical sense to have master meters for non-residential projects when for years the City has accepted Owner's Associations for industrial and office complexes with the Association having the responsibility to pay the water bill for the maintenance of commonly-owned landscape areas and parking lots. Apartments frequently pay all water bills for residents; HOAs address common issues and already often collect other fees, such as cable connections. In large, high rise complexes it would be impossible to provide separate meters for each unit due to space requirements. This fact is substantiated from the data on Exhibit C that indicates that all other cities surveyed, including those with high rise structures, allow one master meter and do not require individual meters for condominium ownership. Electronic copies of all the ordinances are available from the City on CD or Zip. If additional copies of these documents are needed, please call Dee Landers at 929-2288, extension 405. Tel. 760.929.2288 Fax. 760.929.2287 5927 Balfour TC PIK Skip Hamman City Engineer Engineering Department City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008-7314 CT 04-11 - Request for Tentative Map Extension Due to the economy and for financial reasons we would like to request a one-year extension of our tentative map approved by the City on February 1, 2005. It is our intention to diligently pursue the completion of Foinsettia Commons. At this time, our grading plans are being finalized and we expect to pull grading permits the first quarter of 2008. Building plans are also being finalized with the expectation that construction will begin once the grading for the underground parking garage has been completed. We are applying for an extension as a precautionary measure should the process be delayed for any reason. Thank you tor your consideration Sincerely, Brad Pero/zi Vice President Poinscttia Commons, L.L.C. 949 South Coast Drive, Suite 400 Costa Mesa, Ca 92626 CITY OF CARLSBAD ENGINEERING - DEVELOPMENT SERVICES DIVISION REQUEST FOR PROJECT REVIEW Inter-Office Correspondence DATE: TO: SUBJECT: 12/04/06 D IEI D IEI D D IEI D D D Planning Fire Parks Eng/Traffic Eng/Design Eng/P & P PW/MTCE & Ops PW/Streets Building Other Barbara Kennedy Greg Ryan Mike Bliss Bob Johnson Bill Plummer Josh Nimetz Joe Adams .ui Nick Rogue Mike Peterson Improvement Plans (Precise) Grading (& Erosion Control) Plans Final / Parcel Map Other Project Id: CT 04-11 DWG No.: 442-4 Project Name: Poinsettia Commons Plancheck No.: 3 Please review and return comments by 12/13/06 to Linda Ontiveros who will route to: Engineer of Work: PDC Contact Name: Nick Psyhogios Project Engineer: RickPlanchecker: PBS&J DEPARTMENT COMMENTS; If comments are written on plans, please indicate as such (Signature) Project Engineer - please initial after reviewing comments:^Entered (Date) ax Date: Distribution: Original to Project Engineer, then to file; copy to plan checker; copy to~£ngineer of Work H:\Development ServicesVPROJECTSVST FILES\CT 04\CT 04-1 1 Poinsettia Transit Village - RicMAdministrative DocumentsWEQUEST FOR PROJECT REVIEW - INTEROFFICE TRANSMITTAL(CT0411) doc 11-17-05 February 2, 2007 To: Terie Rowley From: Joe Adams, Water Operations Re: Plan check #3, Poinsettia Commons Terie, In review of plans for the Commons I do not see the valve package assignments for the (2) add on fire detector units located at approx. sta: 10+62 & 10+72, (single valve package?) and I don't care much for the existing valve clusters ending up in the curb & gutter ( hi- light area). Also, I've notice that some comments from Kurt Musser were not address, Remove valve and blind flange tee out let and the abandon pipe (refer to plan check #\) Should you like verbal explanation Please contact me via ext 7135 Thank you jw CITY OF CARLSBAD ENGINEERING - DEVELOPMENT SERVICES DIVISION REQUEST FOR PROJECT REVIEW Inter-Office Correspondence DATE: TO: 12/04/06 SUBJECT: D D D D D Dnnn nn Planning Fire Parks Eng/Traffic Eng/Design Eng/P&P PW/MTCE & Ops PW/Streets Building Other Barbara Kennedy Greg Ryan Mike Bliss Bob Johnson Bill Plummer O Josh Nimetz Kurt Musser Nick Roque Mike Peterson Improvement Plans (Precise) Grading (& Erosion Control) Plans Final / Parcel Map Other Project Id: CT 04-1 1 DWG No.: FM 04-11 Project Name: Poinsettia Commons PlancheckNo.: Please review and return comments by 12/13/06 to Linda Ontiveros who will route to: Engineer of Work: PDC Contact Name: Nick Psyhogios Project Engineer: RickPlanchecker: PBS&J DEPARTMENT COMMENTS; If comments are written on plans, please indicate as such \ U^ (Signature) Project Engineer - please initial after reviewing comments:Entered Distribution: Original to Project Engineer, then to file; copy to plan checker; copy to Engineer of Work, H:\Development Sefvices\PROJECTS\CT FILES\CT 04\CT 04-11 Poinsettia Transit Village - RicMAdministrative DocumentsWEQUEST FOR PROJECT REVIEW - INTEROFFICE TRANSMITTAL (CT0411 ).doc 11-17-05 .«**" • CITY OF CARLSBAD ENGINEERING - DEVELOPMENT SERVICES DIVISION REQUEST FOR PROJECT REVIEW Inter-Office Correspondence DATE: TO: SUBJECT: Project Id: Project Nam 12/04/06 D IE! D DD El DD D m D D D CT 04-1 Planning Fire Parks Eng/Traffic Eng/Design Eng/P & P PW/MTCE & Ops PW/Streets Building Other Improvement Plans (Precise) Grading (& Final / Parcel Map Other 1 e: Poinsettia Commons Barbara Kennedy Greg Rvan Mike Bliss Bob Johnson Bill Plummer Josh Nimetz Joe Adams Nick Roque Mike Peterson Erosion Control) Plans DWG No.: 442-4 PlancheckNo.: 3 Lil (£ U. Please review and return comments by 12/13/06 to Linda Ontiveros who will route to: Engineer of Work: PDC Contact Name: Nick Psyhogios Project Engineer: RickPlanchecker: PBS&J DEPARTMENT COMMENTS; If comments are written on plans, please indicate as such Enterec (Dajtf. EmaiWanrtJJrrer (Signature) Project Engineer - please initial after reviewing comments: D Distribution: Original to Project Engineer, then to file; copy to plan checker; copy to Engineer of Work H^Development Services\PROJECTS\CT FILES\CT 04VCT 04-11 Poinsettia Transit Village - RickVAdministrative DocumentsVREQUEST FOR PROJECT REVIEW - INTEROFFICE TRANSMITTAL (CT0411 ).doc 11-17-05 CARLSBAD FIRE DEPARTMENT Fire Protection Services PROJECT CONDITION REPORT PROJECT NAME: Poinsettia Commons Date: 12/20/06 Project number: CT 04-11 / DWG: 442-4 Staff Planner: Engineer: D. Rick Project conditions: (Note: The following identifies specific conditions necessary to achieve Fire Department approval.) I have reviewed the Improvement Plans for CT 04-11 DWG: 442-4 Poinsettia Commons, and am still concerned that the applicant has yet to indicate that each of the buildings will be provided with fire sprinklers. Each fire sprinkler system will require a backflow prevention device which shall be placed along embarcadero or Avenida Encinas. In addition a fire hydrant shall be provided within 90 feet of each backflow. These plans do not indicate the proposed locations of the backflow devices. This is essential in establishing the proper number and location of fire hydrants. I do not recommend the approval or further consideration of these plans until such time as the applicant responds to these questions. GR CITY OF CARLSBAD ENGINEERING - DEVELOPMENT SERVICES DIVISION REQUEST FOR PROJECT REVIEW Inter-Office Correspondence DATE: TO: SUBJECT: Project Id: Project Nam 12/04/06 i ; n IEIn n IEInnn IEIn n CT 04-1 Planning Fire Parks Eng/Traffic Eng/Design Eng/P & P PW/MTCE & Ops PW/Streets Building Other Improvement Plans (Precise) Grading (& Final / Parcel Map Other 1 e: Poinsettia Commons Barbara Kennedy Greg Rvan Mike Bliss Bob Johnson Bill Plummer Josh Nimetz Joe Adams Nick Roque Mike Peterson Erosion Control) Plans DWG No.: 442-4 PlancheckNo.: "*• /; ~- • o ul1 V- 3 Please review and return comments by 12/13/06 to Linda Ontiveros who will route to: Engineer of Work: PDC Contact Name: Nick Psyhogios Planchecker: PBS&J Project Engineer: Rick DEPARTMENT COMMENTS; If comments are written on plans, please indicate as such (Signature) Project Engineer - please initial after reviewing comments: / (Date) Entered Ed Email/Fax Date: Distribution: Original to Project Engineer, then to file; copy to plan checker; copy to Engineer of Work H:\Development Services\PROJECTS\CT FjLESCT 04\CT 04-11 Poinsettia Transit Village - RickVAdministrative DocumemsVREQUEST FOR PROJECT REVIEW - INTEROFFICE TRANSMITTAL (CT0411) doc 11-17-05 .w- PROJECT DESIGN CONSULTANTS DATE: November 21,2006 PDCJOBNBR: 3153.00 TO: City of Carlsbad CARLSBAD TRACT NBR: 9710 FROM: Darlene Szczublewski, Project Design Consultants SUBJECT: Storm Water Management Plan for Poinsettia Commons 2nd Plan Check, dated 10/10/06 by CA ___„ Redline Comments Redline Comment #1 on Title Page: "Storm Water Management Plan" Response: Title of report has been changed as requested. Redline Comment #2 on Title Page: "Sig" Response: Report has been signed by the RCE as requested. Redline Comment #3 on back of Title Page: "This is a post-construction document. Do not include items listed already in SWPPP or the drainage report Make reference to these stand alone documents as necessary." Response: As per our conversation with Mr. David Rick, only short summaries of the SWPPP and the drainage report have been included to show that water quality is being protected and the impacts to the hydrologic regime as required in the storm water standards manual. RECEIVED NOV 23 2006 ENGINEERING 5 CL cro4-li PROJECT DESIGN CONSULTANTS 701 B STREET, SUITE 800 SAN DIEGO, CA 92101 619.235.6471 TEL 619.234.0349 FAX WWW.PROJECTDESIGN.COM File: 3153.10 October 19, 2006 Mr. David Rick CITY OF CARLSBAD 1635 Faraday Carlsbad, CA 92008 SUBJECT: Poinsettia Commons (CT 04-11) Final Map Dear Mr. Rick: In compliance with Section 66496 of the Subdivision Map Act requiring the Subdivider to furnish to the City a security guaranteeing payment of cost of setting final monuments, I hereby estimate the cost for setting the final monuments on the above referenced subdivision to be $ 3,000.00 e: «•' Sincerely, Ronald E. Roth LS 5506 Expiration Date 09-30-08 T:Mapping\3153.10\monumentbonddeposit SAN DIEGO • PHOENIX • TEMECULA • BAKERSFIELD ALBUS-KEEFE & ASSOCIATES, INC. GEOTECHNICAL CONSULTANTS October 5, 2006 J.N.: 1286.01 Mr. Brad Perozzi Poinsettia Commons, LLC 949 South Coast Drive, Suite 400 Costa Mesa, California 92626 Subject: Beach Replenishment Material, Poinsettia Commons, Avenida Encinas and Embarcadero Way, City of Carlsbad, California. Reference: "Preliminary Geotechnical Investigation, Proposed Carlsbad Transit Village, City of Carlsbad, California", prepared by Albus-Keefe & Associates, Inc., dated January 9, 2004, (J.N.: 1286.00). Dear Mr. Perozzi; Pursuant to your request, Albus-Keefe & Associates, Inc., has reviewed the City of Carlsbad criteria for beach replenishment material and we have reviewed our boring logs and laboratory test results from our referenced geotechnical report for the site. Our review indicates the upper 10 feet of the onsite earth materials are comprised primarily of fine-grained Silry Sand that contains some silt and clay lenses. These materials are various shades of light brown, gray and reddish-brown in color. Based on our understanding of the City's beach replenishment criteria, it is our opinion that the anticipated export soil from the site would not meet the criteria established by the City. We appreciate this opportunity to be of service to you. If you should have any questions pertaining the contents of this report, please do not hesitate to call our office. Sincerely, ALBUS-KEEFE & ASSOCIATES, INC Patrick M. Keefe Principal Engineering Geologist CEG 2022 1011 North Armando Street, Anaheim CA 92806-2606 (714) 630-1626 FAX (714) 630-1916 Driving Directions from Avenida Encinsjv& Embarcadero Ln, Carlsbad, CA to Ir vation Way & Palo... Page 2 of 2 *? Pacific Ocean 9 2007 MapQuest, Inc. Start: Avenida Encinas & Embarcadero Ln Carlsbad, CA 92011, US ©2007 NAVTEQ End: Innovation Way & Palomar Airport Rd Carlsbad, CA 92009, US alrni » 2007 MapQuest, Inc.7NAVTEQ All rights reserved. Use Subject to License/Copyright These directions are informational only. No representation is made or warranty given as to their content, road conditions or route usability or expeditiousness. User assumes all risk of use. MapQuest and its suppliers assume no responsibility for any loss or delay resulting from such use. 7K, L\2> h11p://www.mapquest.com/directions/main.adp?do^i1&mo:=ma&src=maps&lgi=0&un=m&go=l&la=A 2/1/2007 Driving Directions from Avenida EnciiF- & Embarcadero Ln, Carlsbad, CA to I vation Way & Palo... Page 1 of 2 Start: Avenida Encinas & Embarcadero Ln Carlsbad, CA 92011, US End: Innovation Way & Palomar Airport Rd Carlsbad, CA 92009, US Notes: Directions Total Est. Time: 8 minutes Total Est. Distance: 5.05 miles 1: Start out going NORTHWEST on AVENIDA ENCINAS toward PALOMAR AIRPORT RD / CR-S12. 2: Turn RIGHT onto PALOMAR AIRPORT RD / CR-S12 E. 3: End at Innovation Way & Palomar Airport Rd Carlsbad, CA 92009, US Total Est. Time: 8 minutes Total Est. Distance: 5.05 miles Distance 0.9 miles 4.1 miles JYLEMOL Tylenol GoTabs. Fast pain relief for people on the go. http://www.mapquest.com/directions/main.adp?do^rt&mo=ma&src=maps&lgi=0«feun=m&go=l&la=Av... 2/1/2007 PROJECT DESIGN CONSULTANTS 701 B STREET, SUITE 800 SAN DIEGO, CA 92101 619.235.6471 TEL 619.234.0349 FAX WWW.PROJECTDESIGN.COM September 13, 2006 The City of Carlsbad Engineering Department 1635 Faraday Avenue Carlsbad, CA 92008-7314 Reference: Letter of Request for Street Vacation - Carlsbad Tract CT 04-11 Poinsettia Commons Dear Sir; On behalf of our Client, Poinsettia Commons, LLC, we herewith make request for the vacation of a portion of Embarcadero Lane within Lot 5 of Carlsbad Tract No. 97-10, according to Map No, 13785. The purpose for the request for Vacation is based on the on-street parking requirements as a Condition of Approval of the Final Map. Sincerely, PROJECT DESIGN CONSULTANTS fiald E. Roth, PLS P:\3153\Mapping\Correspondence\09-13-06_ltr.of_request_St.Vac.doc SAN DIEGO • PHOENIX • TEMECULA • BAKERSFIELD cram t? iiis.- -)(>!) ,>-,{;) MOM. r.V>>.V.. March 2, 2006 Ken Nishikawa John Laing Homes 1917 Palomar Oaks Way, Suite 200 Carlsbad, CA 92008 Mr. Nishikawa, With regard to the Sewer Lift Station Reimbursement Agreement (Recorded Document #2001- 0534380) between WL Homes LLC (dba John Laing Homes), HSL/BP/Michan LP, Strata/Poinsettia, HSL Properties, Inc and Strata Equity Corporation, it is agreed that the reimbursement amount due to John Laing Homes from the 5,92 acre site know as Poinsettia Commons (APN: 214-450-26,27,28,30) under the agreement will be calculated using the following assumptions: Poinsettia Commons Dwelling Units: 78 (26.3% of total dwelling units) Total Cost of Sewer Lift Installation: $1,186,972.86 Principal Amount Owed to John Laing Homes: $311,730.25 Interest Rate: Prime +1 % (as referenced in the Reimbursement Agreement) Please indicate your approval with your signature below. Brad Perozzi TCRSC Development LP Agreed to by John Laing Homes: K«n Nishikawa PriniedNaml0c» President Planning * D«v»tepm«nt CC: David DiRienzo, Urban-West Development WL Homes LLC Sewer Lift Station Reimbursement As of 05/09/07 Adjustments: EDUs from 89 to 78 Adjust allowable interest irnprovemfot Cosjartv;: Construction: Plan Check Fee Engineering Costs: Performance Bond: Insurance: j,i_,^ 1,0157148.68" 19,085.00 148,739.18 2,000.00 2,000.00 Per Job Cost, see attached Per Job Cost, see attached Per Job Cost, see attached Estimated Estimated Total Improvement Costs:1,186.972.86 A tf (Prorata based on EDUs for both Properties, per #7. of page 4 of agreement) JLH Waters End EDUs Teak Developer EDUs Total EDUs 219 78 297 73.7% 26.3% B 100.0% Total Improvement Costs: Prorata share: Urban West share of costs: =W«RJL» ^ B ,186,972.86 26.3% 311,730.25 Interest rate: prime +1% Time period: First payment, 9/25/02 thru 5/31/07: Allowable Interest: 6.81% 4.68 99,431.27 Urban West share of costs: Allowable Interest: Total Reimbursable to WL Homes LLC: 311,730.25 99,431.27 411,161.52 ; David Rick - poinsettia commons modifjprf condition - 2nd draft Page jfij From: David Rick To: mhowes@hofmanplanning.com Date: 12/27/2004 3:30:06 PM Subject: poinsettia commons modified condition - 2nd draft I made additional modifications and started from scratch. Please read and give me input. Also, I changed the last four words of the second paragraph on Page 14 of the staff report from "issuance of grading permits" to "commencment of grading the underground garage". Thanks. Prior to issuance of a grading permit, the developer shall test for suitability of export sand/soil for beach sand replenishment per established City guidelines and offer to transport excavated sand/soil from the project site to a coastal location designated by the City Engineer. The City may reject or accept said offer. Said offer shall remain open until soil exported from the site for the underground garage has commenced. Developer may negate said offer if the City delays development of the project by failing to establish or adopt any procedures, requirements or programs for coastal sand/soil replinishment or obtain necessary permits for coastal sand/soil replinishment. Transport of soil/sand is subject to a City approved haul route permit. CC: Barbara Kennedy; Steve Jantz CITY OF CARLSBAD ENGINEERING DEPARTMENT PROJECT REVIEW November 5, 2004 TO: Barbara Kennedy - Associate Planner - Planning Department FROM: David Rick - Assistant Engineer - Development Services Division VIA: Deputy City Engineer - Development Services Division CT 04-11, PUD 04-10, SDP 04-09, CUP 04-15, CDP 04-26: POINSETTIA COMMONS PROJECT REPORT AND CONDITIONS TRANSMITTAL Engineering Department staff has completed the review of the above-referenced project and are recommending: X That the project be approved subject to the conditions as listed on the attached sheet. That the project be denied for the following reasons: X The following is a final Land Development Section project report for inclusion in the staff report for this project. DEVELOPMENT SERVICES DIVISION Project Report LOCATION: Adjacent to and west of Poinsettia Properties PA 5 Apartments, east of the Poinsettia Transit Station, south of Avenida Encinas and north of Poinsettia Properties PA 4 (Water Ends Single Family Development). BRIEF DESCRIPTION : 51 Live/Work, 15 market rate town home lofts, 12 affordable "loft style" apartments, a 3,296 square foot daycare that will accommodate 60 children and 18,337 square feet of retail/commercial, and underground garage. ENGINEERING ISSUES AND DISCUSSION: TRAFFIC AND CIRCULATION: Projected Average Daily Traffic (ADT): 3,437 A Traffic study was not required because anticipated traffic impacts were already analyzed in the Poinsettia Properties Specific Plan. Under this plan, 5,370 Average Daily Trips were expected. Under the current proposal, 3,437 ADT is anticipated. The surrounding streets were projected to be able to accommodate the anticipated traffic generated per the Specific Plan. Because the proposed project is projected to generate less traffic than originally anticipated, additional 1 impacts are not anticipated and therefore, any additional mitigation to the surrounding streets would not be necessary. Comment: All frontage and project related roadways are conditioned to be designed and constructed concurrent with development of this project. SEWER: Sewer District: Carlsbad Municipal Water District Sewer EDU's Required: 89.18 (1) 1 edu/dwelling x 51 live/work dwellings =51 EDU's (2) 1 edu/dwelling x 12 affordable apartment dwellings = 12 EDU's (3) 18,337 sq. ft. retail/1800 sq ft. = 10.18 EDU's (4) 1 edu/60 children X daycare w/ 60 children = 1 EDU's (5) 1 edu/dwelling X 15 Condominiums = 15 EDU's TOTAL = 89.18 EDU's Comment: Sewer facilities exist in Embarcadero Lane, which is currently a public street. The developer is proposing to vacate the street and redesign as a private street. The sewer facilities, however, will remain public with a newly dedicated public utility and access easement. The developer will remove an abandoned sewer main along the southerly portion of Embarcadero Lane and retain the northerly aligned main. All the units will gravity flow to this main via laterals installed for each building. WATER: Water District: Carlsbad Municipal Water District GPD Required: 220 gpd/edu x 89.18 edu's = 19,619 GPD Comment: No major water issues are associated with this proposed project. All uses will connect into an existing water main in Embarcadero Street. Reclaimed water lines are also located in Embarcadero Street. These lines are expected to be filled with reclaimed water within the next year and will be utilized by the project. Separate meters will be installed for each condominium unit, live/work condominium unit, retail building and the daycare/apartment. Meters will primarily be located at the end of the parking stalls and within City or CMWD easements. SOILS & GRADING: Quantities: Cut: 35,260 cy Fill: 7,260 cy Export: 28,000 cy Import: 0 cy Permit required: Yes Off-site approval required: No Hillside grading requirements met: N/A Preliminary geo-technical investigation performed by: Albus-Keefe & Associates, Inc. Comment: The majority of excavation is from the underground garage. From a geotechnical point of view, the proposed development is considered feasible. However, moist sandy conditions and groundwater were observed between depths of 18 to 34 feet. Nevertheless, the potential for liquefaction is very low. In addition, differential settlement is considered within tolerable limits for the proposed structures. The garage floor is proposed at an 2 elevation approximately 9-10 feet above groundwater level. DRAINAGE AND EROSION CONTROL: Drainage basin: D Preliminary hydrology study performed by: Project Design Consultants Erosion Potential: Low Comment: Drainage from Lots 1, 3 and 4 will drain to the existing storm drains in Embarcadero Lane as was anticipated in the February 2002 Waters End Drainage Report CT 00-16, DWG No. 396-7 (Waters End Report). No increase in unaccounted runoff is anticipated and the storm drain system with additional proposed inlets is expected to adequately carry the hundred-year storm underground. With the proposed project, drainage from Lot 2 will continue to flow to the existing bio-swale located on the Waters End Project as it currently flows today. This channel directs drainage to the vernal pools located between the Waters End project and the Railroad Tracks. The Waters End Report anticipated that drainage from Lot 2 would continue to flow in this direction once Planning Area 6 was developed. The amount of runoff anticipated in the Report (6.9 cfs) is nearly the same amount expected under this project proposal (6.6 cfs). Therefore, the vernal pools will be replenished with a supply of water previously expected. Some minor off-site grading of the channel may be required once proper sizing of the bio- swale is determined during final construction design. The only diversion of drainage will occur on Avenida Encinas. Approximately 0.69 acres of Avenida Encinas drainage will be diverted from entering Lot 2 to flowing westward on Avenida Encinas. The drainage ultimately flows to the railroad easement as does existing drainage from other portions of Avenida Encinas. LAND TITLE: Conflicts with existing easement: the existing slope easements dedicated to the City of Carlsbad will be quitclaimed as these slopes will be removed under the proposed development. The project has been conditioned accordingly. Easement dedication required: The developer is proposing to vacate Embarcadero Lane, a public street, to a private street maintained by the Poinsettia Commons Home Owners Association. Access rights for residents of Poinsettia Planning Areas 2, 3, 4 and 5 will be reserved in perpetuity. The existing street pavement and sidewalk will be removed and a new street with angled parking will be constructed in a slightly different alignment. A public utility easement will be proposed over the newly aligned street. Site boundary coincides with land title: Yes Comment: No major land title issues are associated with this project. IMPROVEMENTS: Off-site improvements: Curb, gutter and pavement widening improvements will be required on Avenida Encinas fronting the project. In addition, public water services, sewer laterals and fire hydrants are proposed along Embarcadero Street. Private improvements include the new Embarcadero Lane with angled street parking, 8 inch sewer line for the condominium live/work units and market rate townhome lofts, street lights on Embarcadero Lane, the trail fronting Avenida Encinas, and all proposed and existing storm drains within the subdivision. The existing storm drain within Lot 3 will be converted from a public to a private facility. The project is conditioned to require a drainage easement over Lot 3 for the benefit of the Apartment 3 Development in Planning Area 5 which currently drains to Embarcadero Lane. Standard variance required: No. Comment: No major improvement issues are associated with this proposed project. ENGINEERING CONDITIONS OF APPROVAL ENGINEERING CONDITIONS NOTE: Unless specifically stated in the condition, all of the following conditions, upon the approval of this proposed tentative map, must be met prior to approval of a final map, building or grading permit whichever occurs first. General 1. Prior to hauling dirt or construction materials to or from any proposed construction site within this project, Developer shall apply for and obtain approval from, the City Engineer for the proposed haul route. 2. Developer shall provide to the City Engineer, an acceptable means, CC&Rs and/or other recorded document, for maintaining the private easements within the subdivision and all the private improvements: streets, sidewalks, street lights, and storm drain facilities located therein and to distribute the costs of such maintenance in an equitable manner among the owners of the properties within the subdivision. 3. Developer shall install sight distance corridors at all street intersections in accordance with Engineering Standards. Fees/Agreements 4. Developer shall cause property owner to execute and submit to the City Engineer for recordation the City's standard form Drainage Hold Harmless Agreement regarding drainage across the adjacent property. 5. Prior to approval of any grading or building permits for this project, Developer shall cause Owner to give written consent to the City Engineer to the annexation of the area shown within the boundaries of the subdivision into the existing City of Carlsbad Street Lighting and Landscaping District No. 1 and/or to the formation or annexation into an additional Street Lighting and Landscaping District. Said written consent shall be on a form provided by the City Engineer. Grading 6. Prior to the issuance of a grading permit or building permit, whichever occurs first, Developer shall submit to the City Engineer proof that a Notice of Intention for the start of work has been submitted to the State Water Resources Control Board. 7. This project requires off site grading. No grading for private improvements shall occur outside the limits of this approval unless Developer obtains, records and submits a recorded copy to the City Engineer a grading or slope easement or agreement from the owners of the affected properties. If Developer is unable to obtain the grading or slope easement, or agreement, no grading permit will be issued. In that case Developer must either apply for and obtain an amendment of this approval or modify the plans so grading will not occur outside the project and apply for and obtain a finding of substantial conformance from both the City Engineer and Planning Director. 8. Based upon a review of the proposed grading and the grading quantities shown on the tentative map, a grading permit for this project is required. Developer shall apply for and obtain a grading permit from the City Engineer prior to issuance of a building permit for the project. 9. Prior to issuance of a grading permit, the developer shall offer and agree to transport excavated sand/soil from the project site to a coastal location designated by the City Engineer if the City chooses to accept said offer. Said offer shall remain open until grading is completed. Transport of soil is subject to a City approved haul route permit. Dedications/Improvements 10. Developer shall cause Owner to make an irrevocable offer of dedication to the City and/or other appropriate entities for public utility and access easement shown on the tentative map The offer shall be made by a certificate on the final map. All land so offered shall be offered free and clear of all liens and encumbrances and without cost. All street, parking, curb, gutter and other surface facilities as well as underground drainage facilities within said easement shall be privately maintained by the property owner or their representative. Provisions for said maintenance shall be incorporated into the CC&R's. 11. Additional drainage easements may be required. Developer shall dedicate and provide or install drainage structures, as may be required by the City Engineer, prior to or concurrent with any grading or building permit. 12. Developer shall provide the design of all private streets and drainage systems to the satisfaction of the City Engineer. The structural section of all private streets shall conform to City of Carlsbad Standards based on R-value tests. All private streets and drainage systems shall be inspected by the City. Developer shall pay the standard improvement plancheck and inspection fees. 13. Developer shall execute and record a City standard Subdivision Improvement Agreement to install and secure with appropriate security as provided by law, public improvements shown on the tentative map and the following improvements including, but not limited to paving, base, signing & striping, trails, curbs and gutters, grading, removal or relocation of utilities, sewer, water, and fire hydrants to City Standards to the satisfaction of the City Engineer. The improvements are: a) Curb and gutter on Avenida Encina b) Transitional Asphalt Concrete Pavement and Base on Avenida Encinas c) Fire Hydrant, water meters and service lines on Avenida Encinas and Embarcadero Lane. d) Sewer laterals and removal of abandoned sewer main between Access Hole No. 1 and No. 3. e) Concrete Trail fronting Avenida Encinas and pedestrian ramps at the intersection of Avenida Encinas and Embarcadero Lane. A list of the above shall be placed on an additional map sheet on the Final Map per the 5 provisions of Sections 66434.2 of the Subdivision Map Act. Improvements listed above shall be constructed within 18 months of approval of the subdivision or development improvement agreement or such other time as provided in said agreement. 14. Developer shall cause Owner to waive direct access rights on the final map for Lots 4 and 5 abutting Avenida Encinas. 15. Prior to the issuance of grading permit or building permit, whichever occurs first, Developer shall submit for City approval a "Storm Water Pollution Prevention Plan (SWPPP)." The SWPPP shall be in compliance with current requirements and provisions established by the San Diego Region of the California Regional Water Quality Control Board and City of Carlsbad Requirements. The SWPPP shall address measures to reduce to the maximum extent practicable storm water pollutant runoff during construction of the project. At a minimum, the SWPPP shall: a. include all content as established by the California Regional Water Quality Control Board requirements; b. include the receipt of "Notice of Intent" issued by the California Regional Water Quality Control Board; c. recommend source control and treatment control Best Management Practices (BMPs) that will be implemented with this project to avoid contact or filter said pollutants from storm water to the maximum extent practicable before discharging to City right-of-way or natural drainage course; and d. establish specific procedures for handling spills and routine clean up. Special considerations and effort shall be applied to employee education on the proper procedures for handling clean up and disposal of pollutants. 16. Prior to the issuance of grading permit or building permit, whichever occurs first, Developer shall submit for City approval a "Storm Water Management Plan (SWMP)." The SWMP shall demonstrate compliance with the City of Carlsbad Standard Urban Stormwater Mitigation Plan (SUSMP), Order 2001-01 issued by the San Diego Region of the California Regional Water Quality Control Board and City of Carlsbad Municipal Code. The SWMP shall address measures to avoid contact or filter said pollutants from storm water, to the maximum extent practicable, for the post-construction stage of the project. At a minimum, the SWMP shall: a. identify existing and post-development on-site pollutants-of-concern; b. identify the hydrologic unit this project contributes to and impaired water bodies that could be impacted by this project; c. recommend source controls and treatment controls that will be implemented with this project to avoid contact or filter said pollutants from storm water to the maximum extent practicable before discharging to City right-of-way; d. establish specific procedures for handling spills and routine clean up. Special considerations and effort shall be applied to resident and employee education on the proper procedures for handling clean up and disposal of pollutants; e. ensure long-term maintenance of all post construct BMPs in perpetuity; and f. identify how post-development runoff rates and velocities from the site will not exceed the pre-development runoff rates and velocities to the maximum extent practicable. 17. Developer shall have design, apply for and obtain approval of the City Engineer, for the structural section for the access aisles with a traffic index of 5.0 in accordance with City Standards due to truck access through the parking area and/or aisles with an ADT greater than 500. The structural pavement design of the aisle ways shall be submitted together with required R-value soil test information and approved by the City Engineer as part of the building or grading plan review whichever occurs first. 6 .-**, 18. Prior to approval of the final map, the City of Carlsbad slope easements recorded with the San Diego County Recorder per Doc No. 2002-0033831 shall be quitclaimed. 19. An easement for private reciprocal drainage shall be reserved on the final map over all of Lots 1, 2, 3,4 and 5 for the benefit of Lots 1, 2, 3,4 and 5. 20. Prior to the approval of the final map, Embarcadero Lane between the northern and southern boundary of Lot 3 shall be vacated to the underlying property owner. The proposed Embarcadero Lane shall be privately owned and maintained. 21. A vehicular and pedestrian access easement shall be granted over Lot 3 to all property owners and residents within Poinsettia Properties Planning Areas 2, 3, 4 and 5. 22. Vehicular gates or similar obstructions are prohibited on Embarcadero Lane. A gate is permissible for the underground garage as shown on the tentative map. A sign shall be posted at the driveway entrance to said underground parking stating that parking is for resident use only. 23. Prior to recordation of the final map, a drainage easement shall be recorded over portions of Lot 3 for the benefit of Poinsettia Properties Planning Area 5 (Lot 4 of CT 97-10, Map 13785). Said easement shall encompass areas on Lot 3 that will receive surface and subsurface drainage. 24. Developer shall execute a Traffic Signal Improvement Agreement to design and install to City standards and post appropriate security as provided by law, two traffic signals to be constructed to the satisfaction of the City Engineer. The improvements consist of: a. Design and construct a new fully actuated traffic signal at both Avenida Encinas and Embarcadero Lane intersections. Developer acknowledges the necessity of this signal is to serve only this project and Developer will bear all costs associated with the design and construction of this signal, if warrants are met. The signal shall be interconnected with adjacent signals to facilitate signal coordination. Developer shall post security for the design and construction of said improvements. The Agreement shall be kept in force and security kept valid for a period of 5-years after the last certificate of occupancy has been issued within this Development The traffic signal shall be installed only when written approval is received by the City Engineer. Final Map Notes 25. Developer shall show on Final Map the net developable acres for each parcel. 26. Note(s) to the following effect(s) shall be placed on the map as non-mapping data A. All improvements are privately owned and are to be privately maintained with the exception of the following: /. Curb and gutter on Avenida Encina II. Transitional Asphalt Concrete Pavement and Base on Avenida Encinas III. All Fire Hydrant, water, and sewer facilities within the Avenida Encinas public right-of-way and the public utility and access easement over Embarcadero Lane. B. Building permits will not be issued for development of the subject property unless the appropriate agency determines that sewer and water facilities are available. C. No structure, fence, wall, tree, shrub, sign, or other object over 30 inches above the street level may be placed or permitted to encroach within the area identified as sight distance corridors. D. (Easement recording information.) Special Conditions 27. The Average Daily Trips (ADT) and floor area contained in the staff report and shown on the tentative map are for planning purposes only. Developer shall pay traffic impact and sewer impact fees based on Section 18.42 and Section 13.10 of the City of Carlsbad Municipal Code, respectively. Carlsbad Municipal Water District 28. Prior to approval of improvement plans or final map, Developer shall meet with the Fire Marshal to determine if fire protection measures (fire flows, fire hydrant locations, building sprinklers) are required to serve the project. Fire hydrants, if proposed, shall be considered public improvements and shall be served by public water mains to the satisfaction of the District Engineer. 29. The Developer shall design and construct public facilities within public right-of-way or within minimum 20-feet wide easements granted to the District or the City of Carlsbad. At the discretion of the District Engineer, wider easements may be required for adequate maintenance, access and/or joint utility purposes. 30. Prior to issuance of building permits, Developer shall pay all fees, deposits, and charges for connection to public facilities. Developer shall pay the San Diego County Water Authority capacity charge(s) prior to issuance of Building Permits. 31. The Developer shall prepare a colored recycled water use map and submit this map to the Planning Department for processing and approval by the District Engineer. 32. The Developer shall design landscape and irrigation plans utilizing recycled water as a source. Said plans shall be submitted to the satisfaction of the District Engineer. 33. The Developer shall install (potable water and/or recycled water services) and meters at a location approved by the District Engineer. The locations of said services shall be reflected on public improvement plans. 34. The Developer shall install sewer laterals and clean-outs at a location approved by the District Engineer. The locations of sewer laterals shall be reflected on public improvement plans. 35. The Developer shall design and construct public water, sewer, and recycled water facilities substantially as shown on the (Tentative Map/Site Plan) to the satisfaction of the District Engineer. Proposed public facilities shall be reflected on public improvement plans. 36. The Developer shall provide separate potable water meters for each separately owned unit. 8 37. This project is approved upon the express condition that building permits will not be issued for the development of the subject property, unless the District Engineer has determined that adequate water and sewer facilities are available at the time of occupancy. A note to this effect shall be placed on the Final Map, as non-mapping data. 38. Prior to Final Map approval or issuance of building permits, whichever is first, the entire potable water, recycled water, and sewer system shall be evaluated in detail to ensure that adequate capacity, pressure, and flow demands can be met to the satisfaction of the District Engineer. 39. The Developer shall submit a detailed sewer study, prepared by a Registered Engineer, that identifies the peak flows of the project, required pipe sizes, depth of flow in pipe, velocity in the main lines, and the capacity of the existing infrastructure. Said study shall be submitted concurrently with the improvement plans for the project and the study shall be prepared to the satisfaction of the District Engineer. 40. The Developer shall submit a detailed potable water study, prepared by a Registered Engineer that identifies the peak demands of the project (including fire flow demands). The study shall identify velocity in the main lines, pressure zones, and the required pipe sizes. Said study shall be submitted concurrently with the improvement plans for the project and the study shall be prepared to the satisfaction of the District Engineer. 41. The Developer shall submit a detailed recycled water study, prepared by a Registered Engineer that identifies the peak demands of the project. The study shall identify velocity in the main lines and the required pipe sizes. Said study shall be submitted concurrently with the improvement plans for the project and the study shall be prepared to the satisfaction of the District Engineer. Code Reminder The project is subject to all applicable provisions of local ordinances, including but not limited to the following: A. The tentative map shall expire twenty-four (24) months from the date this tentative map approval becomes final. B. Developer shall exercise special care during the construction phase of this project to prevent offsite siltation. Planting and erosion control shall be provided in accordance with Carlsbad Municipal Code Chapter 15.16 (the Grading Ordinance) to the satisfaction of the City Engineer. C. Some improvements shown on the tentative parcel map and/or required by these conditions are located offsite on property which neither the City nor the owner has sufficient title or interest to permit the improvements to be made without acquisition of title or interest. The Developer shall immediately initiate negotiations to acquire such property. The Developer shall use its best efforts to effectuate negotiated acquisition. If unsuccessful, Developer shall demonstrate to the City Engineer its best efforts, and comply with the requirements of the Carlsbad Municipal Code Section 20.16.095 to notify and enable the City to successfully acquire said property by condemnation. CITY OF CARLSBAD ENGINEERING DEPARTMENT DEVELOPMENT SERVICES September 3, 2004 TO: Barbara Kennedy - Associate Planner FROM: David Rick - Assistant Engineer ISSUES REVIEW PROJECT ID: CT 04-11/CDP 04-26/CUP 04-15/PUD 04-10/SDP 04-09 Poinsettia Transit Village, Second Review The Engineering Department has completed its review of the above referenced project for compliance with the previously determined issues. The project still has issues that must be addressed. The following is a list of these issues: 1. Identify which surface parking spaces on Embarcadero Lane are designated for the daycare. The spaces for the daycare should be the closest spaces. To accommodate peak hour pickup and drop off for the daycare without disrupting longer term parking for the retail uses, consider restricting the 15-minute time restrictions djjring the peak hours. Also, sheet C-2.0 indicates that 48 students, 6 employees will attend but the Parking Management Plan indicates that the facility will accommodate 60 children. Please clarify. 2. Extend the depth of the compact parking spaces to standard depths to avoid vehicle encroachment into the street travel way. 3. Add CB EL and IE on the catch basins located near Section D-D. 4. Realizing that the discussions to allow pedestrian access are still in progress with NCTD, we would nevertheless like to see proof, in writing, that gives the City assurance that access between the properties can be maintained in one form or another in perpetuity. The statement that management for NCTD is willing to allow access on a temporary basis is a concern. What happens when the access is no longer granted? Are the stairs removed? Is there a reason why only temporary access is being considered? According to the preliminary title report and CT 97-10, it appears that no pedestrian or trail easement exists over the trails fronting Avenida Encinas. A note on Sheet C-3.0 states "Pedestrian Easement over Lots 4 and 5..." but it does not specify if the easement exists or is proposed. Please specify. The easement shall be offered as an irrevocable offer of dedication to the City. In addition, a portion of the trail extends beyond the boundary of Lot 4 and likewise, the easement. Also, align the trail with the existing trail fronting PA 5. H:\LIBRARY\ENG\WPDATA\MISC\COMPREV Also, the slope easement to be quitclaimed extends along Avenida Encinas frontage east of Embarcadero Lane according to DOC 2002-0033831 yet the plans do not identify the easement in this location nor is a quitclaim proposed. Include this area with the quitclaim. VB. Remove the gate from the underground parking structure or provide adequate turn around for drivers that are not able to open the gate. Also, the profile shown on Sheet A-6.2 plots 5 foot "ramps". Instead, plot 10-foot vertical curves at the bottom and top of the driveway. CL Address the parking structure drainage. Will sump pumps be used? Drain inlets? Etc. L/8. Locate the trash receptacle area for Building 2 on the south side of the building and extend < an access ramp to Embarcadero Lane. The location as shown would force the trash trucks to stop at the intersection causing more disruption to traffic entering and exiting the project , site than if the truck were stopped further into the project. .. • Submit the exhibits showing the truck turning radii. The response letter from Hofman , Planning stated that the exhibits were submitted but no such exhibits were in the submittal ' package. Locate all street/pedestrian lights outside the^venida Encinas public right-of-way. The BM2 lights as shown on Sheet C-4.0 and £D-pjps are currently proposed in the right-of- way. ? '11. Dimension the depth of the parking space on Detail A of Sheet C-2.0. $' O^t P o K Maintain a minimum 10-foot separation between the easement boundary line and water main. The separation is only 5 feet at the circular portion of the street. Add a note to remove the sewer line, manholes, etc. that are to be abandoned rather than plug the lines.\. G>J o' y^- Specify that the portion of sewer line fronting buildings 2 through 8 is private. Add a note ^ that this line is to be privately maintained by the property owner. One additional meter is needed for the market rate units (50 currently proposed + 1 more = 51) and one additional for the market rate town home lofts (14 currently proposed + 1 more = 15). Locate the 12-inch RCP identified as private outside the public utility easement by realignment of the pipe and/or easement boundary. If this cannot be accomplished, then the property owner shall enter into an encroachment agreement with the City and a note shall be added to the plan stating such. The end of the rgclaifned wafer line fronting Building 4 appears to be conflicting with the water meters/water pipes.Tteiise revise. I V18. In Embarcadero Lane between Building 1 and 2, there appears to be a water line connection between the potable and reclaimed mains. Please clarify and revise as needed. As is already being investigated, determine whether project site drainage must be H:UBRARY\ENG\WPDATA\MISC\COMPREV redirected for preservation of existing off-site vernal pools. Revise drainage report and/or plans as necessary. 20. Be aware that the project will be conditioned to require that the property owner enter into an encroachment agreement with the City for any and all pavement graphics and other improvements not constructed to City Standards that are installed within the proposed public easement. 21. Change utility to Adelphia Cablevision and SBC telephone on the title sheet. 22. Add the corner site distance lines to the landscape plan and remove any plants over 30 inches in height within the line of site. 23. Provide proof that the property owner of PA 5 (Apartment complex) will authorize the proposed improvements on their property. 24. In the SWMP, include high trafficked areas for permeable asphalt and concrete. According to Site BMP's described on page 9 and the notes on Exhibit C, porous pavement is to be used where practicable in low traffic areas. However, the diagram on Exhibit C shows it covering Embarcadero Lane and another portion of the text recommends that UNI Eco- Stone be used on Embarcadero Lane. Revise to be consistent and so that porous pavement is used where vehicles travel and park, as shown on Exhibit C. Adding UNI Eco-stone porous pavement on the street and parking surface would more efficiently address the removal of heavy metals, oils, bacteria and viruses than the CDS unit utilized downstream. 25. Provide several flow line elevations along the proposed street gutter on Avenida Encinas to illustrate that flow will continue along the improvements and beyond without ponding. If you or the applicant has any questions regarding the above, please either see or call me at extension 2781. David Rick Assistant Engineer- Engineering Development Services Division 3,6 <• 2,1, M •• " • ' » •J 'T . j *A »K{ "^CAT H:\LIBRARY\ENG\WPDATA\MISC\COMPREV • From: <Kurt_Roblek@r1.fws.gov> To: "Mike Howes" <mhowes@hofmanplanning.com> Date: 8/31/041:24PM Subject: Re: Vernal Pool Watershed Mike - Thank you for passing along the information. This letter has been in our files and I have read it before. Our intention when requesting the delineation of the boundaries, size, and hydrology of the vernal pool watershed(s) was to gain a more accurate picture of the area. We do not have any information justifying the boundaries of the watershed and believe that it may extend beyond the trail. Watershed delineations are commonly done by "eye-balling" the topography and not with more accurate means. Given today's site status with the developments of NCTD and Water's End, and with the existing draining ditch extending from Poinsettia Commons, we feel that the watershed may have been altered. With this in mind we would like to minimize or negate any future impacts to the vernal pools. We would still like to review any of the information that can be gathered and look forward to continuing our efforts together in preserving this vernal pool complex. Thank you, Kurt J. Roblek Biologist U.S. Fish and Wildlife Service 6010 Hidden Valley Road Carlsbad, CA 92009 (760) 431-9440 ext 308 "Mike Howes" <mhowes@hofmanpla To: "Kurt Roblek" <Kurt_Roblek@r1.fws.gov>, "Jonathan Snapp-Cook" nning.com> <jonathan_snapp-cook@ r1 .fws.gov> cc: "Barbara Kennedy" <bkenn@ci.carlsbad.ca.us> 08/25/2004 04:08 Subject: Vernal Pool Watershed PM Kurt & Jonathan, Did you receive the information I sent to your office last week regarding the watershed boundary for the vernal pool near the Poinsettia properties site? I believe that it provided the information you needed to determine that the drainage from the proposed Poinsettia Commons project does not impact the vernal pool adjacent to Water's End. Mike Howes CC: "Barbara Kennedy" <bkenn@ci.carlsbad.ca.us>, "Jonathan Snapp-Cook" <jonathan_snapp-cook@r1.fws.gov> Hofman Planning Associates Planning Fiscal Services Environmental MEMO Date: August 19, 2004 To: Kurt Robleck & Jonathan Snapp-Cook From: Mike Howes Subject: Vernal Pool Watershed for the Poinsettia Properties Specific Plan Accompanying this memo is a letter dated March 12, 1996 from John Brown of Dudek & Associates addressing the vernal pools along the railroad tracks, adjacent to the Poinsettia Properties Specific Plan. According to the letter, John Brown reviewed the site with Jim Dice, of the California Department of Fish & Game, and they agreed that the vernal pool watershed did not extend east of the existing dirt road at the edge of the property. The buffers for the Water's End project have been provided in accordance with the requirements of this letter to protect the watershed of the vernal pools. Hopefully this letter provides the information you needed to address your concerns regarding the watershed of the vernal pools prior to the development of this area. Please give contact me if you need any additional information. Cc David DiReinzo Barbara Kennedy Don Rideout David Rick Debby Reece attachment 59QO Pasteur Court • Suite 150 • Carlsbad • CA 92008 • (760)438-1465 • Fax: (760)438-2443 Hofman Planning Associates JUL23201HPlanning Fiscal Services Environmental 23, 2004 PUNNING Ms..-Barbara Kennedy City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 RE: CT 04-1 I/PUD 04-10/SDP 04-09/CUP 04-15/CDP 04-26 - POINSETTIA TRANSIT VILLAGE Dear Barbara: This letter constitutes our response to the City of Carlsbad planning and engineering comments dated June 14, 2004. This letter also serves as a formal resubmittal of the Tentative Map, Turning Exhibits, Landscape Concept Plan, Architectural Floor Plans and Elevations, Site Plan, Drainage Report and Stormwater Management and Maintenance Plan for the Poinsettia Transit Village. For the sake of clarity and convenience, we have structured our letter to respond to each of the City's incomplete items and issues of concern. We have noted where changes to the plans have been made and provide clarification or additional information where requested. The revised drawings are dated July, 2004. List of Items Needed to Complete the Application: 1. David DiRienzo is not the only individual owning more than 10% of the shares of t° „* Teak Investors, LLC. Arlen Capital, LLC and Mauretania Partners LLP also own -^ more than 10% of the shares of Teak Investors, LLC. Sheet C-l of the Tentative ^ Map has been revised to indicate that Teak Investors, LLC is the owner of the site. \s2. Three copies of the current preliminary title report have been included with this resubmittal. V 3. Two copies of the revised Drainage Report have been included. All issues raised by the Engineering Department have been addressed. . Two copies of the revised Storm Water Management Plan have been included. All issues raised by the Engineering Department have been addressed. 5900 Pasteur Court • Suite 150 • Carlsbad • CA 92008 • (760)438-1465 • Fax: (760)438-2443 Ms. Barbara Kennedy July 23, 2004 Page 2 5.J An acoustical analysis is in the process of being prepared. The report has not yet been completed, but we will submit the finalized report to you within the next couple of weeks. ). A Sign Program has been prepared and five copies are included in this resubmittal. l. A Lighting Plan has been prepared and five copies are included in this resubmittal. 8. A Preliminary Geotechnical Report was prepared by Albus-Keefe & Associates on January 9, 2004. This report was submitted on May 12, 2004 as part of the original project submittal. Detailed soils testing and analysis was included in the report. If you need additional copies of the report, please let us know and we will forward them to you. The Carlsbad Unified School District has determined that facilities will be available to serve students living in the Poinsettia Transit Village. A letter dated June 28, 2004 stating these finding has been included. i/lO. Coast Waste Management has determined that the site can be serviced for refuse collection as proposed. A letter dated June 29, 2004 stating these findings has been included. Issues of Concern Planning: 1. The parking layout on Embarcadero Lane has been revised and is shown on the Tentative Map and Landscape Concept Plan. Per Section 21.53.120(c) of the Carlsbad Municipal Code, we are asking for a reduction of the parking requirements for the affordable units from 1.5 spaces per unit to 1 space per unit. The project is in conformance with the General Plan and the Poinsettia Properties Specific Plan, and the reduction of the parking requirements will have no negative effect on public health, safety or welfare. With the reduction in parking requirements for the affordable units, the number of required spaces for the affordable units would be reduced from 18 to 12, and would reduce to total number of required spaces for the project from 256 to 250. With 150 spaces provided in the underground parking garage and 105 spaces now provided on Embarcadero Lane, the parking requirements for the project have been met. ;*'*' v/2. A Parking Management Plan has been prepared and is included as part of this resubmittal. The plan addresses all aspects of the parking proposed for the Ms. Barbara Kennedy July 23, 2004 Page 3 Poinsettia Transit Village, including parking in the underground parking structure, loading and unloading areas for the daycare center, time restricted parking on Embarcadero Drive, and visitor parking. Joint use of the spaces reserved for daycare center employees is also addressed. 3. A separate letter regarding the increased density justification has been prepared and is included as part of this resubmittal. 4. The applicant requests that the child daycare center be allowed to accommodate 60 children and 5 employees. There are no restrictions listed hi the Poinsettia Properties Specific Plan regarding the allowable number of children at the daycare center. The Specific Plan does state that the daycare center is required to meet all restrictions outlined in Chapter 21.83 of the Carlsbad Municipal Code. Per this section of the CMC, the Poinsettia Transit Village has provided five dedicated spaces for employee parking and 6 spaces for loading/unloading of children enrolled at the daycare center. The applicant has also provided adequate square footage to accommodate 60 children and will require the tenant to comply with all California licensing laws. 5. A Comprehensive Site Plan has been prepared and is included with this resubmittal. 6. The building floor plans have been revised to show all dimensions for the building projections. We have also made sure that parking spaces adjacent to a wall are 2 feet wider than other spaces. In addition, upper level columns do not encroach into the required minimum interior dimensions for the garages. 7. The enlarged floor plans for each unit type have been removed from the resubmitted plans. 8. Cross-sections showing the height of the mechanical equipment, height of the parapet and how the mechanical equipment will be screened have been added to the architectural plans. 9. Site Plan/Engineer's Plan a. The parking summary shown on the site plan has been revised to show the square footage of the gross leasable area of retail/commercial for buildings 1 and 2. b. The application numbers have been added to the cover sheet. c. The line between the public and private portions of Embarcadero has been shown on the Site Plan. Ms. Barbara Kennedy July 23, 2004 Page 4 d. Per the SANDAG Traffic Generation Rate Chart, a rate of 8 ADT has been used. e. 50 feet of red curb has been shown on Avenida Encinas, east of Embarcadero. See sheet C-4 for details. f. The sidewalk along Embarcadero Lane will be extended to connect with the existing trail on the southern edge of the site. Sheets C-4 of the Tentative Map and LP-2 of the Landscape Conceptual Plan show additional details regarding the trail and the relationship to the Water's End project. Grades and features of the Water's End project have been shown on the Sheet C-4 of the Tentative Map. g. Additional information has been added to the Site Plan which shows the grades proposed at the northwest and southwest ends of the building. See sheet C-4 for details. h. Additional details regarding the stairway transitions to the Coaster Station parking lot have been provided on Sheet C-4. i. Information showing the percentage of the slope and design of the ramp into the underground parking structure has been provided on the Architectural Site Plan. j. The trash areas for buildings 1 and 2 have been clearly shown on Sheet C-4 of the revised Tentative Maps and on Sheet LP-1 of the Landscape Conceptual Plan. In addition, Sheet LP-2 provides a trash enclosure detail. On trash collections days, the dumpsters will be rolled to the street for pickup. The dumpsters located in the underground parking garage will be rolled up to the street by two employees of Coast Waste Management, or will be pulled to the street by a pickup truck to be provided by the Homeowner's Management Company. The exact details have yet to be determined, but Waste Management has informed us that the site will be able to be served. Additional details regarding trash pickup can be found in the email dated June 29, 2004 from Larry Stevens. k. Sheet C-4 of the Tentative Map shows the existing features of the eastern edge of NCTD's property as well. The east/west pedestrian walkways in the Poinsettia Transit Lofts project have been designed to align with the drive isles in the Coaster parking lot as best as possible, creating lengthy view corridors. Ms. Barbara Kennedy July 23, 2004 Page 5 10. Parking Design a. The layout of the underground parking structure has been changed to provide a handicapped parking space in the parking garage. The majority of the handicapped parking spaces are still located on Embarcadero Drive. b. The parking space layout on Embarcadero Drive has been changed to provide more compact parking spaces near the main retail/commercial areas in buildings 1 and 2. However, since there will be businesses all along Embarcadero Drive in the live-work lofts, some compact parking spaces are still found on Embarcadero Drive, south of the main retail/commercial areas. c. The parking layout has been revised to include raised planters along Embarcadero Lane. The planters will gradually increase in height from the sidewalk towards the middle of the street, reaching a maximum height of six inches. Additional details have been provided on Sheet C-4. d. The walkways have been reconfigured to align with the courtyard areas. The project design does not include any curbs and no raised walkways have been included. See Sheet C-4 for additional details. e. We have examined the realignment of the entrance to the parking structure, and have aligned it to the best of our ability. Any further realignment is infeasible due to building location and orientation. The fact that the driveways are slightly offset should not cause any traffic problems considering that people coming out of the parking garage will not be crossing the street into the Bridge Housing project and vice versa. 11. Architectural Design a. The architectural elevations have been revised to show burnished finish concrete block at the base of all buildings. b. The building heights and materials have been called out on each of the elevations. c. The Key Map has been corrected on the Quadrant 3,4 and 5 buildings. d. The floor plans have been revised to show accurate locations for all balconies, windows and doors. e. Building elevations have been revised to show wall surface materials wrapping around the corners of the buildings. Ms. Barbara Kennedy July 23, 2004 Page 6 12. Mixed Use-Building - Quadrant 1 a. This building has been redesigned and now provides additional • architectural enhancements on the walls facing Avenida Encinas. Additional details including wooden railings, metal canopies and decorative shutters are now shown on Sheet A-l .6. b. The dimensions of the clock tower have been shown on the revised plans. In addition, the materials being used and various elements have been called out on the plans. c. All buildings and other architectural elements over 35' in height have been dimensioned. The projections only occur over the stairwell and elevator shaft. d. Dimensions have been shown for the single-story portions of the building. e. Per your request, we would like to provide clarification on the following project details: • The vertical sign element has been removed from the architectural drawings. Please refer to the Sign Program for sign locations and designs. • Wood railing will be used on all of the balconies. • The Sign Program indicates the location and type of all signage proposed. • The corridor above the day care entrance is open with awnings and railing used to enhance the space. • The brick-like symbol on the columns at the day care center is "burnish finished" CMU veneer. f. The locations of all windows in the residential units have been shown on the revised plans. g. The architectural plans have been revised to correctly show the location of all balconies. Per your request, the small balcony on units 1-5 has been deleted. h. Sheet LP-1 of the revised Landscape Conceptual Plan shows the locations for all residential and commercial trash receptacles. As mentioned in item 9.j., the trash enclosure detail can be found on Sheet LP-2. Ms. Barbara Kennedy July 23, 2004 Page? 13. Mixed Use Building - Quadrant 2 a. The height of the retaining wall on the west elevation has been shown on the revised Tentative Map. b. The Grading Plan has been revised so that the building height is measured from finish grade on the north elevation. c. The height to the peaked roof element has been shown on the revised west and south elevations. d. This building has been redesigned to include the same level of detail as shown on the south facing building elevation. As shown on Sheet A-2.7, the northeast corner of the building has been enhanced with a balcony, while the enhancements to the northwest corner of the building include window pop outs and an architectural recess that will contain artwork. e. All commercial and residential trash areas will be fully enclosed. The two trash areas for the live-work units will be located in the underground parking structure, while the trash areas for buildings 1 and 2 will be located on ground level. The trash area for building 2 will actually be inside of the building, fully enclosed, while the trash area for building 1 will be located adjacent to the building. As shown on Sheet LP-2, this trash enclosure will be fully enclosed by CMU walls and will be covered with an open air heavy timber trellis. We recently spoke with the Fire Department and they informed us that there are no requirements for fireproofing the top of the trash enclosure and that an open air trellis would be acceptable. f. The roll up doors on the loft units will be used on the loft units. This feature has been noted in the architectural drawings. g. Metal siding has been removed from the mixed-use building in quadrant 2, and has been replaced with vertical siding. h. The floor plans have been revised to show the windows on the south elevation. i. The units in this building have been renumbered. All balconies have been shown on both the floor plans and elevations. j. Signage is proposed over the lobby entrance. Please see the Sign Program for more information on the signage that will be used throughout the project. Ms. Barbara Kennedy July 23, 2004 PageS k. Transition from retaining wall to existing grade at north end of the site is measured from the finish grade and is within the 35 foot height limit. 14. Live-Work Building - Quadrant 3 a. Raised planters have been proposed in lieu of a railing at the 18" podium grade split. We feel that this feature adds to the urban character of the project. b. Dimensions have been added to the archway and single story element shown on the north and south elevations of Buildings #4 and #13. In addition, the key maps on Sheets A-3.7 and A-3.8 have been revised. c. The window fenestration and size of the wrap on the north, east and west elevations of Building #3 have been revised to match the locations shown on the floor plans. d. The north elevation has been revised to clearly reflect the bay-window pop-outs. e. Sheet A-3.6 has been revised to show vertical siding on the south and east elevations of Building #3. This material wraps around the southeast corner of the building. f. The north elevation of Building #3 has been revised to show a variety of siding, as shown on the other elevations. The elevation on Sheet A-3.6 incorporates vertical and horizontal siding, as well as smooth stucco and burnished CMU veneer. g. The floor plans have been revised to show all windows and pop-outs on the north elevation. h. The east elevation on Sheet A-3.8 has been revised to show all lines. 15. Live-Work Building - Quadrant 4 a. The plans have been revised and include and elevation that shows the elevator enclosure. Please also refer to the section drawings for garage gate and wall details. b. The exposed face of the building elevations adjacent to the parking structure ramp has been shown. Burnished CMU veneer will be used along this wall and has been called out on Sheets A-4.6 and 4.7. Ms. Barbara Kennedy July 23, 2004 Page 9 c. The location and design of the underground parking garage security gate has been shown on the revised plans. d. A safety railing has been incorporated into the railing at the edge of the first floor platforms above the parking ramp garage. e. Additional dimensions have been added to Sheets A-4.3 and 4.4 to show how far the second and third floor elements project over the first floor level. In addition, dashed lines have been added to the north and south elevations on Sheets A-4.6, 4.7, 4.8 and A-9 to show the relationship of the second and third floor elements to the other buildings. 16. Live-Work Building - Quadrant 5 a. Wood slatted awnings have been incorporated into the elevation for this building. b. The stairwell at the back of unit #47 has been included in order to meet travel distance requirements for emergency access. The door location has been modified. c. Detail to south elevation of unit #55 has been incorporated. 17. Landscape Plans a. An enlarged detail of the public plaza area west of Embarcadero Lane has been provided on Sheet LP-2 of the Landscape Conceptual Plan. Details regarding hardscape, trees and seating areas have been included. b. The plant palette has been revised and is shown on Sheet LP-1 of the Landscape Conceptual Plan c. With the redesign of the parking along Embarcadero Drive, it was determined that the California pepper tree would no longer be an appropriate species for this location. Sheet LP-1 shows London Plane Trees along the entire length of the street, with Magnolias placed around the tower structure and near the day care center. d. Plant palettes for the shrub and ground cover species in Hydrozones 1, 2 and 3 have been shown on Sheet LP-1. e. Groundcovers have been included in the plant palette and have been listed on Sheet LP-1. Ms. Barbara Kennedy July 23, 2004 Page 10 f. Sheet LP-1 of the Landscape Conceptual Plan has been revised to show Washingtonia robusta and Melaleuca along Avenida Encinas. The shrub palette for this area has also been shown on Sheet LP-1. g. No landscaping has been proposed for the daycare play area at this time. h. No trees in the Quadrant 2 buildings are proposed for the second floor. i. Details for raised planters have been shown on Sheets LP-1 and LP-2. The locations of planters are also shown in the architectural plans. j. A cross-section of the western property line has been shown on Sheet LP- 2. As you can see, plantings and a burnished face retaining wall will be located to the west of the existing property line. k. All hardscape materials have been specified. 1. Sheets LP-1 and LP-2 show the proposed outdoor seating locations. The furniture will be iron, although the exact specifications have not yet been determined. m. A bicycle storage area has been shown on Sheet LP-1 of the Landscape Conceptual Plan and Sheets A-SP.l and A-l.l of the architectural plans on the southern side of the affordable housing building. n. All decorative materials, such as retaining walls, raised planters and enhanced paving, have been called out on the Landscape Conceptual Plan. 18. We have obtained a quote from Sign-O-Rama and will continue to work with them to produce the sign and post it at the project site once the application is deemed complete. Engineering: 1 . In order to accommodate parents dropping off/picking up their children at the daycare facility, six (6) parking spaces will be located on Embarcadero Drive adjacent to Building. The spaces will not be designated as drop-off zones, although these spaces will be limited to a maximum of 1 5 minute parking between 7:00 A.M. and 6:00 P.M. on weekdays. This information has been included in the Parking Management Plan. We do not anticipate any queuing issues at the Avenida Encinas/Embarcadero Drive intersection given the relatively small number of children at the center and the varied hours that parents will be dropping off/picking up children. In addition, it is likely that a number of people living in the development will utilize Ms. Barbara Kennedy July 23, 2004 Page 11 the daycare center, as will commuters who ride the Coaster from the Poinsettia Transit Center. We envision these parents will be parking in the Coaster Station parking lot and walking their children to the daycare center before walking back to the station to board a train. 2. All issues raised regarding Sheet C-5.0 have been corrected. See revised Sheets C-2 and C-4 for revisions. 3. The intersection site distance lines at the street intersections have been plotted on Sheet C-4 per Topic 405 of the California Department of Transportation Highway Design Manual using a speed of 40 MPH on Avenida Encinas. 4. We have been working with NCTD to coordinate pedestrian access to the rail station and most recently met on July 7, 2004 to discuss the project. The Poinsettia Station Lofts project has incorporated steps and a ramp that lead to the Poinsettia Coaster Station. These steps are located to the east of the property line, leaving an 8-9 foot strip of dirt between the property line and the paved parking lot. In our discussions, Jim Cunningham, Manager of Real Estate for NCTD stated that the agency is likely to agree to allow the developer to construct sidewalks in order to connect the steps at Poinsettia Station Lofts to NCTD's parking lot on a 7 jtemDorary,.basis. This will further encourage pedestrian activity between the two ' properties. The area between the sidewalks will be filled in with a material that has yet to be determined. The Homeowner's Assocation for the Poinsettia Station Lofts project will be responsible for the maintenance of this area. No agreement has been decided upon, and Mr. Cunningham suggested that we wait until we have finished plans before we attempt to finalize an agreement. We will continue to work with NCTD as the development of the project progresses. 5. As shown on Sheet C-4, the 5-foot wide trail has been extended to the intersection of Embarcadero Lane and Avenida Encinas and has been connected to a pedestrian ramp. 6. We have been working with Bridge Housing to ensure that they are aware of the project and the work that we will be doing in the area. Letter of permission... In addition, the plans have been revised to show a connection to a storm drain on- site. See Sheet C-4 for additional details regarding the storm drain connection. 7. Sheets A-SP. 1, A-SP.2 and A-4.2 have been revised to show grades and the profile of the driveway. 8. The depth of the parking spaces meets the standards set forth by the City of Carlsbad. The spaces are 20 feet deep, which includes a 2 foot overhang. An Ms. Barbara Kennedy July 23, 2004 Page 12 exhibit showing the dimensions of the spaces has been shown on the Landscape Concept Plan as well as on Sheet C-2 of the engineering plans. 9. The project has provided adequate trash areas throughout the project site. Ground level, enclosed trash areas are located on the ngohern side of building 1 and on the western'side of building 2. These dumpsters will be primarily used by the businesses and residences located in these buildings. In addition, two enclosed trash areas have been provided in the underground parking garage for the residents of the live-work lofts. We met with Larry Stevens from Waste Management on June 29, 2004 to discuss the availability of pick-up services in the area. Mr. Stevens indicated that trash pick-up service would be available to the site. On the day that trash pick-up service is scheduled for the area, the dumpsters at buildings 1 and 2 will need to be pushed from their enclosures, out to the curb. We also discussed the retrieval of the dumpsters from the underground parking garage. It is possible that a two- man team could be assigned to this route (there is currently one person on the route) and they could push the dumpsters from the garage out to the street. This is likely to be quite costly for the developer. It would also be possible for a representative of the project's Management Company to hook the dumpsters to a pickup truck and tow them out onto the street. This is currently done at Ocean Pointe in Carlsbad. No final determination was made as to which option would be better for the project. Mr. Stevens requested that the developer work with Waste Management in the future when the project is closer to setting up a service account. 10. Two Turning Exhibits have been provided for your use. One exhibit details the turning ability of a standard 40 foot bus, while the other shows the turning capabilities of a standard fire truck. Both exhibits show that these vehicles will be able to safely maneuver along Embarcadero Lane. 11. Five feet of additional vehicular back up space has been provided at the garage for unit #42. This added room has been shown on the revised garage plan. 12. Existing streetlights that will be removed have been shown on Sheet C-4 of the Tentative Map. The locations of all new streetlights proposed for Embarcadero Lane have been shown on the Conceptual Lighting Plan. 13. As stated on Sheet C-3 of the Tentative Map, we are proposing to grant a private easement rights over Embarcadero Lane to the residents of PA 2, 3, 4 and 5. Access rights will be granted to the residents over the private portion of ,, (h Embarcadero Lane and will be dedicated to the Homeowner's Associations pd the adjacent properties. Ms. Barbara Kennedy July 23, 2004 Page 13 14. The proposed utility easement for Embarcadero Lane is detailed on Sheet C-3 of the Tentative Map. The water line and fire hydrant are located 10 feet within the boundary of the proposed easement. 15. Sheet C-4 of the Tentative Map has been revised to more clearly identify the end boundaries of the proposed sewer line abandonment. 16. Per meeting with David Rick and Pat Guevara on July 7, 2004, the proposed sewer design is adequate and acceptable to City Staff. 17. Water easements will be granted and will pop out from the street to cover the area where water meters are located. There will be a separate water easement for each set of meters. See Sheet C-3 of the Tentative Map for additional information. /! 8. The peak and fire flow demand for each use, and the average water demand for each use is included in a table on Sheet C-2. All live-work units will be equipped with fire sprinklers. Each fire service line has been changed to 6" and the backflow preventers are located at the property lines. See revised Sheet C-4. 19. Existing and proposed potable water service line sizes have been called out on Sheet C-4 of the Tentative Map. Each live-work unit will be services with a 2" line with manifold of 1" pipe and 5/8" meters for each unit, and separate meters will be provided for each condominium unit in building 2. 20. The proposed 18" RCP has been drawn and is shown on Sheet C-4. 21. The proposed cross gutter at Embarcadero Lane and Avenida Encinas has been shown on Sheet C-4. 22. All street trees currently located in the right of way will be removed. The developer will contact the Public Works General Services Division prior to removal to obtain the appropriate permits. ,23. Per discussions with David Rick, the main storm drain line in Embarcadero Lane from the southerly property line to the cleanout north of the Bridge Housing entrance will remain a public system. The 12-inch line north of the cleanout, and all lateral connections to the public main will be private. The system has been so labeled on revised Sheet C-4. 24. On July 7, 2004, we discussed the relocation of the sewer A.H. near the driveway to PA 5 with David Rick. Per our discussions, Mr. Rick agreed that the locations as shown are acceptable. 25. The Drainage Report has been revised and all comments shown on the redlined version have been addressed. Ms. Barbara Kennedy July 23, 2004 Page 14 26. The Storm Water Management Plan has been revised and all comments shown on the redlined version have been addressed. 27. The development will be phased. A phasing plan has been provided in the Storm Water Management Plan. 28. The two parking spaces closest to the intersection of Avenida Encinas and Embarcadero Lane have been removed due to interference concerns. A loading zone has been added in this area to accommodate trash trucks and other service/delivery vehicles. 29. The turning radius for a fire truck has been shown on the Fire Access Road Exhibit. 30. All redlined plans are included in this resubmittal package. Fire: 1. Fire sprinklers will be provided for all building structures. 2. Standpipes shall be provided within the parking structure. 3. Fire alarms will be provided in the day care and residential structures. 4. Magnetic hold devices shall be provided for the atrium doors. 5. All trees proposed for Embarcadero Drive will be planted to meet City of Carlsbad standards and will be maintained to a clear height of 13 feet 6 inches. 6. The parking structure will comply with Carlsbad Fire Department directive #7. 7. Knox boxes and fire extinguishers will be provided. 8. The day care play yard has not yet been designed and it was requested that we hold off designing this area until the submittal of the TI. When the design is prepared, an Emergency access gate can be incorporated. 9. A maintenance agreement shall be established by the owner whereby utilities and fire protection shall be maintained at all times. Ms. Barbara Kennedy July 23, 2004 Page 15 We believe that the above response addresses all of the concerns raised in your letter dated June 14, 2004. Thank you for your assistance with this project. Please feel free to contact me with any questions at (760) 438-1465. Sincerely, Brenna Corson CC: David DiRienzo, Urban+West+Strategies Debby Reece, Project Design Consultants Darin Schoolmeister, MV&P International Mike Schrock, Urban Arena Lee Ayres, Ayres Incorporated Valerie Hardman, Outdoor Dimensions Scott Hatton, Lighting Design Alliance Attachments Parking Management Plan Poinsettia Station Lofts July, 2004 Introduction Poinsettia Station Lofts will be a true transit oriented project that has been designed to reduce the dependence on automobiles. It is anticipated that a substantial portion of the patrons of the future office and commercial uses will come from commuters on the Coaster. They will be able to park at the Coaster parking lot and walk over to coffee shops, cleaners and the day care center rather than making a number of separate trips. In addition to commuters, a strong pedestrian connection will be established between the Water's End project to the south, residential communities, time-share, and beach visitors to the west and the Poinsettia Transit Village to encourage residents, guests, and visitors to stroll over to the future commercial uses. The peak demand for parking will occur during weekdays between 7:00 A.M. and 5:00 P.M. when most of the commercial/office uses will be open and the adjacent Poinsettia Coaster Station parking lot will be fully utilized. Parking on Embarcadero Drive will be strictly monitored and controlled during the peak demand period on weekdays by the HOA management company and commercial property management company. On weekends there will be less demand for parking on Embarcadero and plenty of empty parking spaces in the Poinsettia Coaster Station parking lot. However, this mixed-use community is not relying on any of the existing spaces in the Coaster parking lot to fulfill its parking requirements. Project Description The Poinsettia Station Lofts project consists of 51 live work, 15 market rate townhome lofts, 12 affordable "loft style" apartments, a 3,296 square foot daycare center that will accommodate 60 children and an additional 18,337 square feet of retail/commercial. Project parking will be provided in an underground parking structure located below the live-work and market rate lofts, and along Embarcadero Drive, the private street running through the middle of the project site. The underground parking structure will be accessed from Embarcadero Drive and will contain an enclosed two-car garage for each live-work and market rate loft. The 12 affordable units will have one assigned parking space in the underground parking structure. Six underground parking spaces will be reserved for employees of the daycare facility. Poinsettia Station Lofts Parking Management Plan One hundred six (106) parking spaces will be provided on Embarcadero Drive for commercial/retail parking, visitor parking. The remaining spaces needed for the daycare and affordable units will be accommodated as surface parking on Embarcadero Drive. Seventeen (17) of these spaces will be compact parking spaces which will be located adjacent to the commercial uses in buildings 1 & 2. Underground Parking Garage As previously mentioned, 66 two-car enclosed garages will be located in the underground parking structure for a total of 132 parking spaces. In addition, 18 parking spaces in the structure will be reserved for the affordable units and the daycare facility. No visitor or commercial parking will be provided in the underground parking structure. Gates will be installed at the entrance to the underground parking structure to ensure that these spaces are reserved for residents and daycare employees. Access to the garage will be allowed through the use of key cards. Key cards will be issued to residents at the close of escrow and to daycare employees when they are hired. Residents of the affordable project will be given a key card when they sign their lease. On weekends, residents of the affordable units, live/work units and/or the market rate lofts will be allowed to utilize any of the spaces reserved for the daycare center in the underground parking garage. Embarcadero Drive Poinsettia Coaster Station currently has a parking problem and commuters would likely take any additional parking spaces before most of the businesses in the Poinsettia Transit Village have opened. To ensure that the parking on Embarcadero Drive is not used by commuters heading to the Poinsettia Coaster Station, all parking on Embarcadero Drive will be limited to three (3) hours Monday through Friday. No time limits will be imposed on Saturdays or Sundays. A private company that will enter into a contract with the project's management association will enforce parking space time limits. Because of the privatization of Embarcadero Drive, the City of Carlsbad will not be responsible for the enforcement of any time limits established along this street. Signage will be posted along Embarcadero to inform motorists of the time restrictions. Additional information on the types and sizes of the signs being used can be found in the Poinsettia Transit Village Sign Program. Day Care Parking Six (6) parking spaces will be located on Embarcadero Drive adjacent to Building One to accommodate parents picking up their children at the daycare facility. These spaces will be limited to a maximum of 15 minute parking between 7:00 A.M. and 6:00 P.M. on weekdays. Poinsettia Station Lofts Parking Management Plan Guest Parking Guest parking will be limited to Embarcadero Drive. No parking spaces will be set aside as "guest parking", although residents will be allowed to obtain a temporary parking permit from the Villages' management company for visiting guests that may be staying for more than three hours. The management company will issue the visitor parking permit for the requested number of days. Vehicles parked without a permit or with an expired permit must comply with time restrictions or risk being towed. Loading, Unloading and Deliveries No parking spaces will be dedicated for loading, unloading and/or deliveries. Deliveries will be limited to 7:00 A.M. to 10:00 A.M. on weekdays and 8:00 A.M. to 5:00 P.M. on weekends. Poinsettia Station Lofts Parking Management Plan ; David Rick - Meeting Agenda.doc Paget * CjP Hofman Planning '••i i- i Associate Planning Fiscal Analysis TIME: LOCATION: Environmental Poinsettia Station MEETING AGENDA 1:30 PM Wednesday, June 23, 2004 Carlsbad Planning Department 1635 Faraday Avenue Carlsbad, CA 92008 PERSONS ATTENDING:Barbara Kennedy David Rick David Di Rienzo Debbie Reece Lee Ayers Darin Schoolmeester Mike Schrock City ot Carlsbad City of Carlsbad Urban West Strategies PDC Ayers Inc. MVE Urban Arena AGENDA 1. Format/Scale for large scale exhibits - 2. Sewer Design 3. Embarcadero Parking 4. Connection to NCTD/Trail 5. Phasing/Daycare 6. Architectural Revisions c> Poc 5900 Pasteur Court • Ste 150 Carlsbad CA 92008 760-438-1465 Fax 760-438-2443 DATE: June 22,2004 FILE: 2541.00 TO: City of Carlsbad FROM: C.D.Szczublewski, ProjectDesign Consultants SUBJECT; Poinsettia Transit Village Planning Area 6 SWMP, 1st Plan Check, Response to City Comments Please note that this SWMP is for the Tentative Map level of the project. The SWMP will be updated and amended during final engineering to reflect more detailed site conditions. Comment #1 on title page and page 1: Change WQTR to SWMP. Response: Correction has been made to text. Also note that the name of project has been changed from Poinsettia Station to Poinsettia Transit Village. Comment #2 on page 2: Correct project description so that it corresponds to tentative map. Response: Corrections have been made to the number of lots specified, the gross site acreage, the square footage of the day care center, the total commercial square footage, and the number of affordable housing units. Comment #3 on page 3 and 4: Change receiving water. Response: Since runoff from the site drains into a desiltation basin and then into the Batiquitos Lagoon prior to entering the Pacific Ocean, correction has been made to the text and Tables 2 and 3. Comment #4 on pages 6 and 7: Current city storm drain system to be made private. Response: Changes have been made: "city storm drain system" has been changed to "privatized onsite storm drain system" in proposed conditions on page 7 and to "onsite storm drain system" on Exhibits B & C. The text for existing conditions remains unchanged. Comment #5 on page 7: Existing 10 year - 24 hour storm is 4.0 cfs, proposed is 7.4 cfs per Mello II. Show how post construction runoff will not exceed existing runoff. Response: Calculations were determined using the Advanced Engineering Software system, utilizing the rational method and creating an open channel in Lot 1 for both existing and proposed conditions and an open channel for Lots 2-5 for existing, while pipe flow was used for proposed. The program chose a 'C' value of 0.70 for proposed condition, based on soil conditions and land usage. Calculations were done with and without the flow from Avenida Encinas; the results listed were all without the flow from Avenida Encinas. A precipitation of 1.1 inches was used for the 2-year, 6-hour storm event; 1.7 inches of precipitation was used for the 10-year, 6-hour storm event. The nodes and areas are shown on Exhibit A. Post construction runoff will exceed existing runoff, but the flow will be reduced through use of grass swales and porous pavement, and the remaining excess flow will be controlled within the detention basin prior to discharge into Batiquitos Lagoon, thereby maintaining downstream conditions. Comment #6 on page 7: Clarify length of storm event (24 hour storm?). Response: Text has been clarified to show the length of the length of the storm event (6 hours). Comment #7 on page 8: Show on plans which impervious surfaces will be designedto bejpermeable. CITY OF CARLSBAD PLANNING DEPT City of Carlsbad June 22, 2004 Page 2 Response: Additions have been made to Exhibits B & C, identifying permeable areas (site design BMPs now on page 9). Comment #8 on page 9: Specify outfall location and condition. Response: Correction has been made to text to include offsite and existing outfalls impacted by the Poinsettia Transit Village Project. Comment #9 on page 9: Change "I LIVE DOWNSTREAM" to "DRAINS TO OCEAN." Response: Correction has been made to text. Comment #10 on page 10: Employees and businesses should be involved in storm water education also. Response: Correction has been made to text to include them (now on page 11). Comment #11 on page 11: Plot on Exhibit C the location of each BMP (filters, porous pavement, vegetated swale, etc.). Response: Additions have been made to Exhibits B &C, identifying the locations of the grass swales and the porous pavement. The CDS unit is already located on Exhibit C and no other filtration devices are to be used. Comment #12 on page 12: Move "Notes for Table 4" to same page as table. Response: Correction has been made to table. Comment #13 on page 12: Clarify the term "structure" within the paragraph on infiltration trenches/basins. Response: "Structure" has been changed to "trench/basin" (now on page 13). Comment #14 on page 13: Use porous pavement on Embarcadero Lane and for parking (increases removal of heavy metals, organic compounds, and bacteria). Response: Addition has been made on Exhibits B & C identifying the location of the porous pavement. Specific mention has been made in the text on page 11 that porous pavement will be used for Embarcadero Lane and for the surface parking area. Comment #15 on page 20: Provide calculations as proof that the existing CDS unit has the capacity to treat the runoff from Planning Area 6 as well as the runoff from the other Planning Areas utilizing it. Response: Capacity for the CDS unit was determined in the ProjectDesign Consultants' Drainage Report for Waters End (Poinsettia Properties Planning Areas 2, 3, and 4) and takes into account all offsite 2541-WQTR to SWMP-response to commenls.doc City of Carlsbad June 22, 2004 PageS runoff including runoff from Planning Area 6 (referred to as Lot 5 Map 13785). Excerpts from the report have been included in Appendix 3, behind the AES drainage calculations for Planning Area 6. Comment #16 on page 20: Use 0.83 for new 'C' value as per redlined copy of Poinsettia Transit Village's Drainage Report. Response: The revised drainage report for Poinsettia Transit Village explains why 0.70 has been used for the 'C' value. Comment #17 on page 21: Change 'C' value and correct the flow volume. Response: The 'C' value was not changed, in accordance with the revised drainage report. Comment #18 on page 24: Did not see Operation and Maintenance Plan for CDS unit in Appendix 4. Response: The Operation and Maintenance Plan for the CDS Unit has been moved to the front of Appendix 4 for easier access. Comment #19 on page 25: Is the annual maintenance cost in Table 8 shared by all the planning areas utilizing the CDS unit or is it just this project's portion? Response: Clarification has been added to the table: 'The cost shown is the total cost to be divided among the planning areas utilizing the BMP." Comment #20 on page 25: Is there a Master Association responsible for all of Planning Area 6? Provide evidence that the project will contribute to maintenance and costs for the CDS unit Response: Nothing will be definite until the CC&R for the Poinsettia Transit Village property owners is prepared during the Entitlement Process. Additional Comment 09/21/04: According to Site BMPs described on page 9 and the notes on Exhibit C, porous pavement is to be used where practicable in low traffic areas. However, the diagram on Exhibit C shows it covering Embarcadero Lane and another portion of the test recommends that UNI Eco-Stone be used on Embarcadero Lane. Revise to be consistent and so that porous pavement is used where vehicles travel and park, as shown on Exhibit C. Response: Text and exhibits have been updated to reflect consistency. Porous pavement will be used for all parking areas along Embarcadero Lane. 254I-WQTR to SWMP-response to commeotS-doc David Rick-Re: sewer in Embarcadero Page 1 From: Mark Biskup To: Rick, David Date: 6/16/041:59PM Subject: Re: sewer in Embarcadero David, After speaking some more with Pat Guevara and maintenance the consensus is to have them collect what they can in a private parallel system and then drop into an existing accesshole or new access hole on the existing, deep sewer. The sewer would be private all the way to the access hole, where they could do a drop manhole type connection with a cleanout adjacent to the access hole that the owners association would use to maintain there sewer. The plans should clearly identify the new sewer as private all the way to the accesshole. Water is like we talked about, separate meters manifolded off a larger service line. The service line to the meter should be in a easement if the street is no longer public, same kind of logic with the fire protection lines which as you know should be 6" min to the private point. Keep me posted. Thanks Mark >» David Rick 06/11/04 05:47PM >» I just discoverd that the main is about 20 feet deep. Did you now this when we were requiring them to connect laterals to the main. This might change things. 0 -"• .,**> Looking North Looking East Looking South Looking West 20' RADIUS (TYPICAL) 1 CONNECTOR STREET CURB TO CURBT 60' R.O.W. TRAFFIC CIRCLE CONNECTOR & NEIGHBORHOOD STREET CONCEPT SKETCH (for illustrative purposes only) A planned community In tho City ol Carlsbad. CaHhxtJa IV-21 HIGHWAY DESIGN MANUAL Figure 404.2 Design Vehicles 1 - STAA Design Vehicle 2 - California Design Vehicle 400-5 January, 1987 ^^ ^^ « 20' . ^^ "^ r* 41' » 68' '^^ ^^vu 25' 40' 3 - Bus Design Vehicle STAA DESIGN VEH CM. OU.TRANS I V CALIFORNIA DESIGN VEHICLE V ' Traffic Calming Feature 2: Connector and Neighborhood Street Intersections Where connector and neighborhood streets intersect, sidewalk bulbouts will occur at each corner (Exhibit IV-18 on page IV-26). The bulbouts will serve to calm traffic by providing a shorter crossing distance for pedestrians near intersections. However, as the street actually enters the intersection the travel lanes will be widened to a total of 24' to facilitate turn movements. Traffic Calming Feature 3: Cross Section of Neighborhood and Collector Streets at Intersections Exhibit IV-18 on page IV-27 provides a cross section of the neighborhood and connector streets near intersections, where they flare out to calm traffic. Exhibit IV-16 on Page IV-23 shows where these two cross sections would occur. As shown by Exhibits IV-17 & IV-18, these streets would have non-contiguous sidewalks and a 20' two-way travel lane. At the intersections the travel lane width will increase to 24' to facilitate vehicle-turning movements. These same street cross sections will be used where neighborhood and connector streets enter traffic circles. Traffic Calming Feature 4: 90° Knuckle Detail Where streets make a 90° turn, a 50' minimum turning radius will be provided and a curb bulbout will occur to help slow down traffic making the turn. No parking is allowed along the curb bulbout (see Exhibit IV-20 on page IV-28). Traffic Calming Features 5. 6 & 7: Traffic Circles Traffic circles will be used at several locations within the Master Plan as a traffic- calming device. Exhibit IV-16 on page IV-23 shows the location of traffic circles in the Master Plan. Traffic circles have been located at limited locations, so they will not significantly delay the arrival times for emergency services. A round 40' diameter island will be located at the center of a 50' radius traffic circle. Sidewalk bulbouts will not occur within the traffic circles, but occur outside the traffic circles before on-street parking begins. These traffic circles are designed to allow a fire truck to pass through without having to mount the curb. Exhibits IV-21 & IV-22 on pages IV-29 & IV-30 show two of the traffic circles that will be provided within the Bressi Ranch Master Plan. Both of these traffic circles will have the same dimensions, but one will be located in a residential area, while the other will be located in the Village Center, Planning Area 15. The traffic circle in Planning Area 15 (see Exhibit IV-22 on Page IV-30) will serve to slow traffic and create a sense of entry into the Village Center. Exhibit IV-23 on page IV-31 provides a cross section of the traffic circle that will be located in the Village Center. The IV-25 fay 2002 * MIXED-USE * MIXED-USE 13'SIDEWALK FOCAL POINT - IN CIRCLE PEDESTRIAN CROSSWALK * MIXED-USE * MIXED-USE TRAFFIC CIRCLE AT VILLAGE CENTER CONCEPT SKETCH (for illustrative purposes only) # EDGE CONDITIONS / LAND USES SUBJECT TO CHANGE IV-22 A planned community In the City ol Cartsbad, California FROM"; BEHCHMflRK PfiCIF1C ='HONE NO. : 760 729 20B0 Sep. 03 1997 04:01PM P2 'DUDEK& ASSOCIATES, INC. MMBMHI^HMNMMBV*^ • •-, Engineer! tin <St Environmental Science's CAR K'11' Timvi SU-IM p.nciMirni,. cv «MV) «••»:•.S147 KM ;f>ls> 858-0112 March 1996 Ms. Terri Woods x Planning Department ""'-^-•—- City of Carlsbad 2075 Las Palmas Drive Carlsbad, California 9200$ Subject: Vernal Pools at North County Transit District Poinsettia Rail Station, City of Carlsbad, San Diego County, California. Dear Ms. Woods: The purpose of this letter is to provide you with information regarding a proposed buffer area between the Poinsetm Properties Specific Plan development and the vernal pools located within the railroad right-of-way immediately south of the North County Transit District (NCTD) Poinsettia Rail Station in the City of Carlsbad, San Diego County, California. Dudek & Associates, Inc. (DUDEK), prepared the biological documentation and mitigation plans for :hc NCTD Poinsettia Rail Station, and assisted NCTD obtain the appropriate resource agency permits prior to station construction. DCDEK also prepared the Biological Resources Report (4 August 1995) for the HSL/BP/Michan property which is adjacent to the railroad right-of-way, and we have been in.coordinaiion with NCTD (Bill Farquhar), the California Department of Fish and Game (Jim Dice), and HSL/BP/Michan (Brian Murphy) regarding vernal pool protection. buffers, and permit compliance. site, I concluded that the vernal pools were dated 4 Augujii995hl[al5g_c^nc^udeol^h^ .east resources reoor: I believe that the western edge of the Poinsetiia Properties should be maintained in open space as a buffer between the proposed development and the vernal pool habitat. An appropriate buffer area would extend frofn the edge of the railroad right-of-way eastward to at least the centedine of the existing dirt road. 1^ have reviewed the site with Jim Dice, and he agreed that construction of a soundwaii along tn^^ aooroximaie centerlmecen The no imnarf^ to vemaJ iitaf r\r area DCtNveeri the waif and right-of-way would comprise the buffer. As shown in the attached figure, the trail would be a minimum of 17 feet east of the railroad right-of-way, with drought-tolerant native landscaping and interpretative signage in the intervening area. The sound-wall would be a minimum of ^6 feet east of the railroad right-of-way. FROM : BENCHMARK PACIFIC £ PHONE NO. : 760 729 20S0 ^> Sep. 03 1997 04:02PM P3 Poinsetiia Properties Vernal Pool Buffers p2pe 3 Within the buffer (i.e.. west of soundwall and east of the right-of-way), the following uses may be appropriate; 1. A five- to eight-foot wide pedestrian trail composed of decomposed granite treated with concrete for stabilizing purposes. The trail should be located relatively close to the soundwali. . 2. Irrigated landscaping along the trail, Landscaping should consist entirely of native, drought-tolerant vegetation. Recommended species include laurel sumac (Malosma laurind) lemonadeberry (Rhus imegrifolia), Cleveland's sage (Salvia clevelandii), black sage (Salvia mellifera). flat-top buckwheat (Eriogonum fasciculacum). and bush monkey flower (Mimulus aurannacus). 3. A protective chain-link fence, west of the trail, at the edge of the railroad right-of-way. The fence would serve as a barrier between the pools and the trail. The fence should be located/sited in conformance with NCTD's Memorandum of Understanding with the California Department of Fish and Game. The fence should be far enough from the trail as to not distract from the enjoyment of the trail, but should provide adequate protection to the vernal pool habitat. The enclosed exhibit illustrates the overall concept. It is my understanding that HSL/BP/Michan has offered to place interpretive signs at certain points along the trail. I strongly recommend acceptance of this proposal, and you may want to incorporate this feature into the Specific Plan. A vernal pool display/interpretative signage program is being developed for the NCTD Poinsettia Station, and you may want to draw from their final design, language, and specifications. This letter should serve as an addendum to the DUDEK report on Poinsettia Properties. If you have any questions or need additional information, please fee! free to call me at (619) 942-5147. Very truly yours, Dudek & Associates, Inc. W. Brown, Ph.D Senior Biologist cc: Jim Dice, CDFG Patricia Wolf. CDFG Brian Murphy, Benchmark Pacific Doug Avis, Benchmark Pacific \ \ \ —r / / / \/r 1 MEXSIWG c«r ROAD P01NSETTIA PROPERTIES PEDESTRIAN BUFFER EXHIBIT o tllfltl I.I IV 1 • ., ,"••."/ ' 'M • ^I'lKI l(f . . I / . ' . . ' »'||/'. •/ VT|» l'««l" »l P9^»»l 2.M96 PnOTECTIVE CI1«H INK FENCE . nAiuioAo now. SECTION OF EXIST ING Wlf UOAO L- r DETAH PLAN SCALE r - iv-y ;oo rn n TJIin o 6m o en io'O roen nn C-J IDIP-J TJ.t Jackson I DeMarcol Tidus Peckenpaugh A LAW CORPORATION May 24,2007 Cii-ij: Lfel: 805.418.1915 L-iv.i.:.: stamiya@jdtplaw.com .•;-..,, :o: Westiake Office .-i.^ i ,j: 5194.42305 VIA HAND DELIVERY Ms. Barbara Kennedy City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008-7314 Re: Bluwater Crossing Dear Ms. Kennedy: Enclosed is a redlined copy of the draft Declaration of Covenants, Conditions and Restrictions for Bluwater Crossing, showing the changes made to reflect your comments. The changes, and responses to those of your comments which did not result in a change in the CC&Rs, are addressed below. 1. With respect to your comments relating to the garages (the first of which is at Section 1.1.44 of the CC&Rs), mere will be eight (8) individual garages constructed within the Parking Garage, each containing two (2) parking spaces). These individual garages will provide direct access to the Live-Work Units which are directly adjacent to the individual garages. All other individual garages have been eliminated from the project. 2. With respect to your comment at Section 1.1.64, the Parking Garage will have additional spaces beyond those required for the Units and those reserved for the day care center employees and the apartment tenants. 3. In response to your comments relating to "townhomes," we have removed all references to "townhomes" to eliminate any definitional confusion. All of the residential Units in the Community are condominiums, including the Live-Work Units. 4. Section 2.6 of the CC&Rs has been revised to be consistent with the specific plan and the CT zone. 5. In response to your question at Section 2.7 of the CC&Rs, we believe requiring a portion of the roll-up glass door hi the Live-Work Units to be uncovered at all times potentially Irvine Office 2030 Main Street, Suite 1200 Irvine, California 92614 1949.752.8585 f 949.752.0597 Westiake Village Office 2815 Townsgate Road, Suite 200 Westiake Village, California 91361 1805.230.0023 f 805.230.0087 www.jdtplaw.com Ms. Barbara Kennedy May 24,2007 Page 2 constitutes both a security and privacy issue. The Association has the right to inspect the Units to determine compliance with the CC&Rs (see Section 6.4.1 of the CC&Rs). 6. Section 2.10.5 of the CC&Rs has been revised to clarify the parking requirements, and to eliminate transferability of parking spaces and storage areas. 7. Section 2.10.8 of the CC&Rs has been clarified with respect to the day care drop-off spaces. 8. With respect to the Parking Management Plan, the developer has reviewed it and does not anticipate implementing any major changes to the program. 9. With respect to your question about Section 3.2 of the CC&Rs, this Section has been revised to clarify that all residential Units are part of the Community (also see Section 1.1.44). 10. Section 3.5 of the CC&Rs has been changed to reflect your comments. 11. Exhibit D has been changed to clarify some of the maintenance responsibilities. The maintenance responsibility for the roll-up glass doors to the Business Element of the Live-Work Units is set out on page D-l of Exhibit D under the heading "Roll-Up Security Door." Also enclosed is a redlined copy of the draft Mutual Benefit Agreement, showing the change on Page 7 in response to reflect your comments. The landscape, irrigation, hardscape and exterior lighting within the Community was not included as a shared expense; these items within the Community are the sole responsibility of the Association because the residential Unit Owners are the ones primarily benefiting from these items. Please do not hesitate to call me if you have any questions or additional comments Sincerely, Sharon L. Tamiya SLT:scm Enclosure cc: Mr. Brad Perozzi (via Email) (w/encl) 707190.1 RECORDING REQUESTED BY: FIRST AMERICAN TITLE COMPANY DRAFT WHEN RECORDED, MAIL TO: JACKSON, DeMARCO, TIDUS & PECKENPAUGH (SLT) 2815 Townsgate Road, Suite 200 Westlake Village, CA 91361 (Space Above for Recorder's Use) DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATION OF EASEMENTS FOR BLUWATER CROSSING NOTE: CERTAIN DISPUTES ARISING UNDER THIS DECLARATION, INCLUDING DISPUTES CONCERNING THE DESIGN OR CONSTRUCTION OF THE COMMUNITY, SHALL BE SUBMITTED TO JUDICIAL REFERENCE, A FORM OF ALTERNATIVE DISPUTE RESOLUTION, IN ACCORDANCE WITH SECTION 12.4. 5194-42305\SLT326\ 671527.4 5/9/07 TABLE OF CONTENTS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATION OF EASEMENTS FOR BLUWATER CROSSING Page ARTICLE 1 DEFINITIONS AND INTERPRETATION 2 1.1 Definitions 2 1.2 Interpretation 12 ARTICLE 2 MAINTENANCE COVENANTS AND USE RESTRICTIONS 14 2.1 Repair and Maintenance 14 2.2 Single Family Residence 2.3 Further Subdivision 2.4 Resale and Rental 18 2.5 Business And Commercial Activities Excluding Live-Work Units 18 2.6 Business or commercial activities for live-work units 492Q 2.7 Additional Use Restrictions For Live-Work Units 2421 2.8 Nuisances 2324 2.9 Signs 25 2.10 Parking and Vehicular Restrictions 26 2.11 Animal Regulations 28 2.12 Antenna Restrictions 2822 2.13 Trash 292Q 2.14 Owner-Installed Improvements 2930 2.15 Mechanics' Liens 34-32 2.16 Drainage 32 2.17 Water Supply System 32 2.18 View Obstructions 32 2.19 Solar Energy Systems 32 2.20 Rights of Disabled 2.21 Association Property 2.22 Mineral Exploration and Extraction 32-33 2.23 Post-Tension Concrete Slabs 33 ARTICLES DISCLOSURES 33 3.1 No Representations or Warranties 33-34 3.2 Mixed Use Project 3324 3.3 Mutual Benefit Agreement 3324 3.4 Security and Privacy Disclaimer 34 3.5 Affordable Housing 34 3.6 Special Districts 3.7 Supplemental Real Property Taxes -i-5194-42305\SLT326\ 671527.4 5/9/07 c o TABLE OF CONTENTS (continued) Page 3.8 Electric Power Lines 35 3.9 Urban Environment 3536 3.10 Airport Influence Area Notice 36 3.11 Airport Proximity Disclosure 36 3.12 Property Lines 36 3.13 Utility Improvements 3437 3.14 Reclaimed Water 363J 3.15 Mold 37 3.16 Natural Hazard Zone Disclosures 3238 3.17 Encinas Wastewater Treatment Plant 38 3.18 Adjacent Commercial Centers 38 3.19 Day Care Facility 3S3J 3.20 Change in Plans 3&3J 3.21 Transit 3S3J 3.22 Adjacent Streets 39 3.23 No Enhanced Protection Agreement 39 3.24 Additional Provisions 39 ARTICLE 4 THE ASSOCIATION 39 4.1 General Duties And Powers 39 4.2 Specific Duties And Powers 394Q 4.3 Standard of Care, Non-Liability 4546 4.4 Membership 47 4.5 Voting Rights 48 4.6 Unsegregated Real Property Taxes 49 ARTICLE 5 DESIGN REVIEW COMMITTEE 495Q 5.1 Members Of Committee 495Q 5.2 Powers and Duties 50 5.3 Review of Plans and Specifications 5.4 Meetings and Actions of the Design Review Committee 5.5 No Waiver of Future Approvals 54 5.6 Compensation of Members 54 5.7 Inspection of Work 54 5.8 Variances 55 5.9 Pre-Approvals 55 5.10 Appeals ARTICLE 6 PROPERTY EASEMENTS AND RIGHTS 6.1 Easements 6.2 Additional Easements 58 6.3 Delegation of Use 5&5J 6.4 Right of Entry 5&5J -11-5194-42305\SLT326\ 671527.4 5/9/07 c TABLE OF CONTENTS (continued) Page ARTICLE 7 ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS 59 7.1 Personal Obligation to Pay Assessments 59 7.2 Association Maintenance Funds 5960 7.3 Purpose of Assessments 60 7.4 Waiver of Use 60 7.5 Limits on Annual Assessment Increases 60 7.6 Annual Assessments 6-162 7.7 Capital Improvement Assessments 6263 ARTICLES INSURANCE 6362 8.1 Duty to Obtain Insurance; Types 626^ 8.2 Waiver of Claim Against Association 6364 8.3 Right and Duty of Owners to Insure 64 8.4 Notice of Expiration Requirements 6465 8.5 Trustee For Policies 646J 8.6 Actions as Trustee 65 8.7 Annual Insurance Review 65 8.8 Required Waiver 65 ARTICLE 9 DESTRUCTION OF IMPROVEMENTS 66 9.1 Restoration of the Community 66 9.2 Sale of Community and Right to Partition 666J 9.3 Interior Damage 67 9.4 Notice to Owners and First Mortgagees 67 ARTICLE 10 EMINENT DOMAIN 67-6J 10.1 Property Condemnation 67-68 10.2 Condemnation of Common Property 68 10.3 Condemnation of Exclusive Use Area 68 10.4 Condemnation of Condominiums 68 10.5 Condemnation of Portions of Units 68 10.6 Portions of Awards in Condemnation not Compensatory for Value of Real Property 69 10.7 Notice to Owners and First Mortgagees 6970 ARTICLE 11 RIGHTS OF MORTGAGEES 691Q 11.1 General Protections 692Q 11.2 Additional Rights 692Q ARTICLE 12 ENFORCEMENT AND DISPUTE RESOLUTION 7011 12.1 Enforcement of Governing Documents TO7_L 12.2 Delinquent Assessments 73 12.3 Enforcement of Bonded Obligations 78 12.4 Disputes with Declarant Parties 78 -m-5194-42305\SLT326\ 671527.4 5/9/07 o TABLE OF CONTENTS (continued) Page ARTICLE 13 DURATION AND AMENDMENT 83 13.1 Duration 83 13.2 Termination and Amendment 83 ARTICLE 14 GENERAL PROVISIONS 86 14.1 Mergers or Consolidations 86 14.2 No Public Right or Dedication 868J 14.3 Notices 868J 14.4 Constructive Notice and Acceptance 87 ARTICLE 15 DECLARANT'S RIGHTS AND RESERVATIONS 87 15.1 Construction Rights 87 15.2 Sales and Marketing Rights K78J 15.3 Creating Additional Easements 88 15.4 Architectural Rights 88 15.5 Use Restriction Exemption 88 15.6 Assignment of Rights &&8J 15.7 Amendment 15.8 Power of Attorney 15.9 Participation in Association 89 15.10 Declarant Approval of Actions 8990 15.11 Marketing Name 90 ARTICLE 16 ANNEXATION OF ADDITIONAL PROPERTY 90 16.1 Additions By Declarant 90 16.2 Other Additions 9QSLL 16.3 Added Area Rights and Obligations 909^ 16.4 Notice of Addition 91 16.5 De-Annexation and Amendment 91 LENDER SUBORDINATION EXHIBIT A rJLEGAL DESCRIPTION OF ANNEXABLE AREA EXHIBIT B ^ARTICLES OF INCORPORATION OF THE ASSOCIATION EXHIBIT C ^BYLAWS OF THE ASSOCIATION EXHIBIT D ^SPECIFIC MAINTENANCE OBLIGATIONS EXHIBIT E - BEST MANAGEMENT PRACTICES GUIDELINES EXHIBIT F- ELEMENTS OF VARIABLE ANNUAL ASSESSMENTS 5194-42305\SLT326\671527.4 5/9/07 w DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATION OF EASEMENTS FOR BLUWATER CROSSING This Declaration of Covenants, Conditions, Restrictions and Reservation of Easements is made by POINSETTIA COMMONS LLC, a Delaware limited liability company. The capitalized terms used in the Preamble below are defined in Article 1. PREAMBLE A. Declarant is the owner of real property ("Phase 1") in the City of Carlsbad, San Diego County, California, described as follows: A portion of Lot 5 of Tract No. 97-10, as shown on Map No. 13785, Filed on May 21, 1999, in the Office of the San Diego County Recorder, which portion is described on the Condominium Plan for Phase 1 of Bluwater Crossing, depicting Units to , inclusive, Association Property and Common Area (the "Phase 1 Condominium Plan) recorded on , 20 , as Instrument No. , in the Official Records of San Diego County, California. B. Declarant intends to create a "condominium project," as defined in California Civil Code Section 1351(f), which is also a "common interest subdivision" within the meaning of California Civil Code Section 1351(c), and a "subdivision" as defined in California Business and Professions Code Section 11000. Declarant intends to impose mutually beneficial restrictions under a general plan for subdividing, maintaining, improving and selling the Condominiums in the Community for the benefit of all the Condominiums pursuant to the Davis- Stirling Common Interest Development Act. The general plan of development will include forming an owners association under the California Non-Profit Mutual Benefit Corporations Law to which will be assigned the powers of (1) owning, maintaining and administering the Association Property, (2) administering and enforcing the Governing Documents, and (3) collecting and disbursing the Assessments and charges hereinafter created. Declarant will cause the corporation to be formed to exercise such powers, as required by California Civil Code Section 1363. The Members of the Association will be the Owners in the Community, as further provided in Article 4 herein. The development of the Community shall be consistent with the overall development plan, if any, submitted to the FHA. C. The Community is to be held, conveyed, encumbered, leased, used and improved subject to covenants, conditions, restrictions and easements in this Declaration, all of which are in furtherance of a plan for subdividing, maintaining, improving and selling the Condominiums in the Community. All provisions of this Declaration are imposed as equitable servitudes on the Community. All covenants, conditions, restrictions and easements in this Declaration shall run - 1 - 5194-42305\SLT326\ 671527.4 5/9/07 o with and burden the Community, and be binding on and for the benefit of all of the Community and all Persons acquiring any interest in the Community. ARTICLE 1 DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS. Unless otherwise expressly provided, the following words and phrases when used in this Declaration have the following meanings. 1.1.1 Annexable Area. Annexable Area means the real property described in Exhibit A which may be made subject to this Declaration pursuant to Article 16. Any references in this Declaration to Annexable Area are references to the Annexable Area as a whole and to portions thereof. 1.1.2 Annual Assessment. Annual Assessment means a charge against the Owners and their Condominiums representing their share of the Common Expenses. The Annual Assessment is a regular assessment as described in California Civil Code Section 1366. 1.1.3 Apartment Owner. Apartment Owner means the fee owner of the Apartment Project. 1.1.4 Apartment Project. Apartment Project means the apartment/ commercial development and day care center constructed or to be constructed on property adjacent to the Community. The Apartment Project is not a part of the Community. 1.1.5 Articles. Articles means the Articles of Incorporation of the Association currently in effect. A copy of the Articles is attached as Exhibit B. 1.1.6 Assessment. Assessment means any Annual Assessment, Capital Improvement Assessment, Reconstruction Assessment and Special Assessment. 1.1.7 Association. Association means Bluwater Crossing Community Association, a California nonprofit corporation (formed pursuant to the California Nonprofit Mutual Benefit Corporation Law or successor statutes), and its successors-in-interest. The Association is an "association" as defined in California Civil Code Section 1351 (a). The Association is a "Project Association" as defined in the Master Declaration. 1.1.8 Association Maintenance Funds. Association Maintenance Funds means the accounts created for Association receipts and disbursements pursuant to Article 7. 1.1.9 Association Property. Association Property means real or personal property designated by the Declarant or the Board as Association Property and therefore made subject to the restrictions on Association Property established in the Governing Documents. Any references in this Declaration to Association Property are references to the Association Property as a whole and to portions thereof, as well as to all Improvements thereon. Additional Association Property may be annexed to the Community pursuant to Article 16. The Association Property in Phase 1 is all of the real property shown on the Phase 1 Condominium Plan, except for the Units and the Common Area shown on that Plan. The Association Property includes the -2- 5194-42305\SLT326\ 671527.4 5/9/07 Buildings and the land beneath and around the Buildings, as shown in the Condominium Plan. In addition, Association Property includes all of the easements described in this Declaration and granted to the Association, provided, however, the Association shall only have the responsibility for maintenance of such easements where such maintenance responsibility is given to the Association. The Association Property is "common area" as defined in California Civil Code Section 1351(b). 1.1.10 Board or Board of Directors. Board or Board of Directors means the Association's Board of Directors. 1.1.11 Budget. Budget means a written, itemized estimate of the Association's income and Common Expenses prepared pursuant to the Bylaws. 1.1.12 Building. Building means the structure housing the Units and subterranean parking garage, if any, in a particular Phase. The term Building includes all of the following Improvements: (a) the shell and core of the Building; (b) all structural support elements existing in, on, under and throughout the Building shell and core, including all separate or common footings, girders, columns, braces, foundations, temporary and permanent tieback systems, shared party walls, load bearing walls and other standard support elements, and every wall, column, floor, ceiling, footing, foundation or other vertical or horizontal Improvement in the Building, but not including any demising partition that is not necessary for the structural support of the Building; (c) any fire and life safety systems and security equipment which benefit the entire Building; and (d) all or any portion of any stairway, duct, pipe, line, main, conduit, lighting, flue and any other equipment, fixtures, machinery, system or apparatus which benefits the entire Building. 1.1.13 Bylaws. Bylaws means the Bylaws of the Association as currently in effect. A copy of the Bylaws as initially adopted by the Board is attached as Exhibit C. 1.1.14 Capital Improvement Assessment. Capital Improvement Assessment means a charge against the Owners and their Condominiums representing their share of the Association's cost for installing or constructing capital Improvements on the Association Property. Capital Improvement Assessments shall be levied in the same proportion as Annual Assessments. Capital Improvement Assessments are special assessments as described in California Civil Code Section 1366. 1.1.15 City. City means the City of Carlsbad, California, and its various departments, divisions, employees and representatives. - 3 . 5194-42305\SLT326\ 671527.4 5/9/07 1.1.16 Close of Escrow. Close of Escrow means the date on which a deed is Recorded conveying a Condominium pursuant to a transaction requiring the issuance of a Public Report. 1.1.17 Commercial Condominium Plan. Commercial Condominium Plan means the Condominium Plan recorded over a portion of the Mixed Use Building that shows "units" and "common area" in the Commercial Project. The volumes of real property encumbered by and described in the Commercial Condominium Plan are not part of the Community. 1.1.18 Commercial Project. Commercial Project means the real property and Improvements that are described and depicted in the Commercial Condominium Plan. The Commercial Project is not a part of the Community. 1.1.19 Commercial Owner. Commercial Owner is the owner of the Commercial Project. 1.1.20 Common Area. Common Area means the volumes of airspace described in the Condominium Plan for each Phase, which shall be owned by Owners in each Phase as tenants-in-common. Any references in this Declaration to Common Area are references to the Common Area as a whole and to portions thereof. The Common Area excludes the Commercial Common Area. 1.1.21 Common Expenses. Common Expenses means those expenses for which the Association is responsible under this Declaration. Common Expenses include the actual and estimated costs of and reserves for maintaining, managing and operating the Association Property (including amounts this Declaration imposes on the Association for maintenance), including: (a) Association Property including the Buildings, clustered mailboxes, address identification signs, landscaped and irrigated areas, Private Streets, walls, fences, drainage facilities, detention basins, sidewalks, parkways, medians, street lights, street trees, curbs, gutters, drive approaches and landscaping, replacement, maintenance and operation of street lights on Private Streets, regular replacement and maintenance of fossil filters and grease traps in the storm drain inlets in the Community in accordance with the requirements of the City, and gardening and other services benefiting the Association Property; (b) Maintenance of the vegetated swale located on property adjacent to the Community, pursuant to the Easement and Maintenance Agreement Recorded . 200 . as Document No. . in the Official Records in accordance with the requirements of the City, and payment of a share of the costs of maintaining the CDS unit on adjacent property pursuant to such agreement: (c) Maintenance of the concrete stair landings located within the Poinsettia Lane Coaster Station parking lot, pursuant to the License Agreement with North County Transit District, including the cost of insurance as provided in the License Agreement; - 4 - 5194-42305\SLT326\ 671527.4 5/9/07 (d) (b)-The cost of all utilities (including sewer and water) and mechanical and electrical equipment serving the Association Property, utilities which serve individual Condominiums but which are subject to a common meter, and trash collection and removal; (e) (e}-Shared Costs allocated to the Association pursuant to the Mutual Benefit Agreement; (f) (d)—The costs and fees attributable to managing and administering the Association, compensating the Manager, accountants, attorneys and employees, all insurance covering the Community and the Directors, officers and agents of the Association, and bonding the members of the Board; (g) (e)-The cost to repair damage to public utility Improvements if caused by the Association during installation, maintenance or repair of private utility Improvements; (h) (f)-Unpaid Special Assessments, Reconstruction Assessments and Capital Improvement Assessments; (i) (g)-Taxes paid by the Association; £jQ (fef-Amounts paid by the Association for discharge of any lien or encumbrance levied against the Community, and (i)—All other expenses incurred by the Association for the Community, for the common benefit of the Owners. 1.1.22 Common Property. Common Property means the Common Area, the Association Property and the Improvements constructed thereon. Any references to the Common Property are references to the Common Property as a whole and to portions thereof. 1.1.23 Community. Community means (a) Phase 1 and (b) each Phase described in a Notice of Addition. The Community is a "condominium project" as defined in California Civil Code Section 1351(f), and a "common interest development" as defined in California Civil Code Section 1351(c). Any references in this Declaration to the Community are references to the Community as a whole and to portions thereof. If all Phases of the Community are annexed as presently planned, the Community will include 66 Units. 1.1.24 Condominium. Condominium means an estate in real property as defined in California Civil Code Section 1351(f). A Condominium consists of an undivided fee simple ownership interest in the Common Area in a Phase, together with a separate ownership interest in fee in a Unit and all easements appurtenant thereto. Subject to the provisions of Section 10.5, the undivided fee simple interest in the Common Area in a Phase is appurtenant to each Unit in such Phase and is a fraction having one (1) as its numerator and the number of Units in that Phase as its denominator; and shall be held by the Owners of Condominiums in that Phase as tenants-in-common. - 5 - 5194-42305\SLT326\ 671527.4 5/9/07 o 1.1.25 Condominium Plan. Condominium Plan means the Recorded plan, as currently in effect, for a Phase consisting of (a) a description or survey map of the Phase or portion thereof, which shall refer to or show monumentation on the ground, (b) a three dimensional description of the Phase or portion thereof, one or more dimensions of which may extend for an indefinite distance upwards or downwards in sufficient detail to identify the Association Property, Common Area and each Unit, and (c) a certificate consenting to the Recordation thereof signed and acknowledged by the record owner of fee title to the Phase or portion thereof, and by either the trustee or the Mortgagee of each Recorded Mortgage encumbering the Phase or portion thereof. The Condominium Plan for each Phase shall also approximately show and describe any Private Street in that Phase. 1.1.26 County. County means San Diego County, California, and its various departments, divisions, employees and representatives. 1.1.27 Declarant. Declarant means Poinsettia Commons LLC, a Delaware limited liability company, its successors and any Person to which it shall have assigned any of its rights by an express written assignment. As used in this Section, "successor" means a Person who acquires Declarant or substantially all of Declarant's assets by sale, merger, reverse merger, consolidation, sale of stock or assets, operation of law or otherwise. Declarant shall determine in its sole discretion the time, place and manner in which it discharges its obligations and exercises the rights reserved to it under this Declaration and the other Governing Documents. Declarant is a "builder" as described in California Civil Code Section 1375. 1.1.28 Declaration. Declaration means this instrument as currently in effect. 1.1.29 DRE. DRE means the California Department of Real Estate and any department or agency of the California state government which succeeds to the DRE's functions. 1.1.30 Design Guidelines. Design Guidelines mean the rules or guidelines setting forth procedures and standards for submission of plans for Design Review Committee approval. 1.1.31 Design Review Committee or Committee. Design Review Committee or Committee means the Design Review Committee created in accordance with Article 5. 1.1.32 Exclusive Use Area. Exclusive Use Area means the Association Property over which exclusive easements are reserved for the benefit of specified Owners including for patios, balconies, decks, parking spaces, garages, storage areas, and internal and external telephone wiring designed to serve a single Unit but located outside the boundaries of that Unit, in accordance with California Civil Code Section 1351(i). The approximate location of the Exclusive Use Areas in each Phase is shown on the Condominium Plan for that Phase, however, the as-built location of such Exclusive Use Areas shall control. The Exclusive Use Area patios, and balconies/decks in each Phase are assigned on the Condominium Plan for that Phase. Parking spaces, garages, and storage areas will be shown on the Condominium Plans and assigned in the deeds conveying Units to purchasers. _ 6 - 5194-42305\SLT326\ 671527.4 5/9/07 o 1.1.33 Family. Family means natural individuals, related or not, who live as a single household in a Residence. 1.1.34 Fannie Mae. Fannie Mae means the Federal National Mortgage Association, a government-sponsored private corporation established pursuant to Title VIII of the Housing and Urban Development Act of 1968 and its successors. 1.1.35 FHA. FHA means the Federal Housing Administration of the United States Department of Housing and Urban Development and its successors. 1.1.36 First Mortgage. First Mortgage means a Mortgage with first priority over other Mortgages on a Condominium. 1.1.37 First Mortgagee. First Mortgagee means the Mortgagee of a First Mortgage. 1.1.38 Fiscal Year. Fiscal Year means the fiscal accounting and reporting period of the Association. 1.1.39 Freddie Mac. Freddie Mac means the Federal Home Loan Mortgage Corporation created by Title II of the Emergency Home Finance Act of 1970 and its successors. 1.1.40 Ginnie Mae. Ginnie Mae means the Government National Mortgage Association administered by the United States Department of Housing and Urban Development and its successors. 1.1.41 Governing Documents. Governing Documents means the Declaration, this Declaration, the Articles, Bylaws, Mutual Benefit Agreement, Architectural Standards, Rules and Regulations, Supplemental Declarations and Notices of Addition. 1.1.42 Improvement. Improvement means any structure and any appurtenance thereto. The Design Review Committee may identify additional items that are Improvements. 1.1.43 Include, Including. Whether capitalized or not, include and including means "includes without limitation" and "including without limitation," respectively. 1.1.44 Live-Work Units. The Units in the Community identified on a Condominium Plan as Live-Work Units. A Live-Work Unit includes an area which may be used for business or professional purposes as a "Business Element" identified on the Condominium Plan for such Unit, an area identified on the Condominium Plan for residential purposes, and for some of these Units, a garage element. 1.1.45 Local Government Agency. Local Government Agency means the City, the County, a public school district, a public water district, and any other local or municipal governmental entity or agency, including any special assessment district, maintenance district or community facilities district. - 7 - 5194-42305\SLT326\ 671527.4 5/9/07 o 1.1.46 Maintain, Maintenance. Whether capitalized or not, maintain and maintenance mean "maintain, repair and replace" and "maintenance, repair and replacement," respectively; provided however, that maintain or maintenance shall not include repair and replace(ment) where the context or specific language of this Declaration provides another meaning. 1.1.47 Maintenance Guidelines. Maintenance Guidelines means any current written guidelines, setting forth procedures and standards for the maintenance and operation of Association Property or the Condominiums. Maintenance Guidelines may be provided by Declarant, by the Association, or by any governmental agency. Maintenance Guidelines include any maintenance manual initially prepared at Declarant's direction and containing recommended frequency of inspections and maintenance activities for components of the Association Property or pertaining to a Condominium. 1.1.48 Manager. Manager means the Person retained by the Association to perform management functions of the Association as limited by the Governing Documents and the terms of the agreement between the Association and the Person. 1.1.49 Membership. Membership means the voting and other rights, privileges, and duties established in the Governing Documents for Association members. 1.1.50 Mixed Use Building. Mixed Use Building means the mixed-use structure housing fifteen (15) townhome Units and the Commercial Units (such townhome Units and Commercial Units, are not, however, a part of the Mixed Use Building for purposes of this definition). The term Mixed Use Building includes all of the following Improvements: (a) the shell and core of the Mixed Use Building; (b) all structural support elements existing in, on, under and throughout the Mixed Use Building shell and core, including all separate or common footings, girders, columns, braces, foundations, temporary and permanent tieback systems, shared party walls, load bearing walls and other standard support elements, and every wall, column, floor, ceiling, footing, foundation or other vertical or horizontal Improvement in the Mixed Use Building, but not including any demising partition that is not necessary for the structural support of the Mixed Use Building; (c) the elevators and related machinery; (d) loading docks and trash rooms; (e) any HVAC systems which benefit the entire Mixed Use Building; (f) any fire and life safety systems and security equipment which benefit the entire Mixed Use Building; and (g) all or any portion of any elevator shaft, stairway, trash chute, dumpster pad, vault, loading dock, air shaft, mechanical shaft, duct, pipe, line, main, conduit, -g- 5194-42305\SLT326\671527.4 5/9/07 lighting, flue and any other equipment, fixtures, machinery, system or apparatus which benefits the entire Mixed Use Building. 1.1.51 Model Condominium. Model Condominium means a Condominium that is being used by Declarant as a sales model, office, design center, or for a similar purpose under a model leaseback agreement. 1.1.52 Model Condominium Sale. Model Condominium Sale means the initial sale of a Model Condominium by Declarant to a buyer subject to a model leaseback agreement with the buyer, under which Declarant has the right to use and occupy the Model Condominium as a sales model during the marketing of the Community. 1.1.53 Model Phase. Model Phase means a Phase that contains one or more Model Condominiums. A Model Phase may include one or more Production Condominiums in addition to the Model Condominiums. 1.1.54 Mortgage. Mortgage means any Recorded document, including a deed of trust, by which a Condominium, Condominiums, or Association Property is/are hypothecated to secure performance of an obligation. 1.1.55 Mortgagee. Mortgagee means a Person to whom a Mortgage is made, or the assignee of the Mortgagee's rights under the Mortgage by a recorded instrument. For purposes of this Declaration, the term Mortgagee includes a beneficiary under a deed of trust. 1.1.56 Mortgagee Majority. Mortgagee Majority means fifty-one percent (51%) or more of the First Mortgagees. For purposes of any provisions of the Governing Documents which requires the vote or approval of a Mortgagee Majority, such vote or approval is determined based on one (1) vote for each Condominium encumbered by a First Mortgage held by an First Mortgagee. 1.1.57 Mortgagor. Mortgagor means a person who has mortgaged his property. For purposes of this Declaration, the term Mortgagor shall include a trustor under a deed of trust. 1.1.58 Mutual Benefit Agreement. Mutual Benefit Agreement means the Recorded agreement(s) between the Association and the Commercial Owner and the Apartment Owner, pursuant to the provisions of California Civil Code Section 1468, to (a) reimburse the Association for shared expenses related to maintenance of the Association Property, (b) create certain easements and rights appurtenant to the Community and the Commercial Project and Apartment Project, (c) impose certain use restrictions on the Community and Commercial Project and Apartment Project, (d) to establish a working relationship between the Association and the Commercial Owner and the Apartment Owner, and (e) provide for other matters in connection with the interface between the Community and the Commercial Project and Apartment Project. 1.1.59 Notice and Hearing. Notice and Hearing means written notice and a hearing before the Board as provided in the Bylaws. - 9 - 5194-42305\SLT326\ 671527.4 5/9/07 o 1.1.60 Notice of Addition. Notice of Addition means an instrument Recorded pursuant to Article 16 to annex additional real property to the Community. 1.1.61 Official Records. Official Records means the Official Records of the County. 1.1.62 Operating Fund. Operating Fund means that portion of the Common Expenses allocated for the daily operation of the Association. 1.1.63 Owner. Owner means the Person or Persons, including Declarant, holding fee simple interest to a Condominium. Each Owner has a Membership in the Association. The term "Owner" includes sellers under executory contracts of sale but excludes Mortgagees. The term "Owner" may be expanded in a Supplemental Declaration to include other Persons. 1.1.64 Parking Garage. Parking Garage means the subterranean parking garage[s] located beneath certain Buildings, as shown on the Condominium Plans. The Parking Garage contains the Exclusive Use Area parking spaces and storage areas. In addition, the Parking Garage contains six (6) parking spaces which will be reserved for use by employees of the day care center located in the Apartment Project, twelve (12) parking spaces which will be reserved for use by the residential tenants in the Apartment Project, and other parking spaces, some of which may be assigned to the Commercial Owner and its tenants in the Mutual Benefit Agreement. 1.1.65 Party Wall. Party Wall means any wall or fence that separates adjacent Condominiums. 1.1.66 Person. Person means a natural individual or any legal entity recognized under California law. When the word "person" is not capitalized, the word refers only to natural persons. 1.1.67 Phase. Phase means each of the following: (a) Phase 1, and (b) all the real property covered by a Notice of Addition for which a Public Report has been issued by the DRE. Declarant may otherwise define the term "Phase" in a Notice of Addition or Supplemental Declaration. 1.1.68 Phase 1. Phase 1 means all of the real property described in Paragraph A of the Preamble of this Declaration. 1.1.69 Private Street. Private Street means any private street and associated unassigned parking in a Phase, as approximately shown on the Condominium Plan for that Phase. 1.1.70 Production Condominium. Production Condominium means a Condominium that is not a Model Condominium. 1.1.71 Public Report. Public Report means the Final Subdivision Public Report issued by the DRE for any Phase. -10- 5194-42305\SLT326\671527.4 5/9/07 1.1.72 Reconstruction Assessment. Reconstruction Assessment means a charge against the Owners and their Condominiums representing their share of the Association's cost to reconstruct any Improvements on the Association Property. Such charge shall be levied among all Owners and their Condominiums in the same proportions as Annual Assessments. Reconstruction Assessments are "special assessments" as described in California Civil Code Section 1366. 1.1.73 Record or File. Record or File means, concerning any document, the entry of such document in Official Records. 1.1.74 Reserve Fund. Reserve Fund means that portion of the Common Expenses allocated (a) for the future repair and replacement of, or additions to, structural elements, mechanical equipment and other major components of Association-maintained Improvements, and (b) amounts necessary to cover the deductibles under all insurance policies maintained by the Association. 1.1.75 Residence. Residence means the living element of the Unit and excludes the appurtenant Exclusive Use Areas and the garage element of the Unit, if any. 1.1.76 Right to Repair Law. Right to Repair Law means California Civil Code Sections 895 through 945.5. 1.1.77 Right to Repair Law Claim. Right to Repair Law Claim means any claim brought by one or more Owners or by the Association against one or more Declarant Parties (as defined in Section 12.4) on any design construction defect matters that are governed by the Right to Repair Law. 1.1.78 Rules and Regulations. Rules and Regulations or "Rules" means the current rules and regulations for the Community. 1.1.79 Special Assessment. Special Assessment means (a) a reasonable monetary penalty imposed against an Owner and the Owner's Condominium in accordance with California Civil Code Section 1367.l(e), as a disciplinary measure for the failure of an Owner to comply with the Governing Documents, or (b) a monetary charge imposed against an Owner and his Condominium in accordance with California Civil Code Section 1367.1(d) to recover costs incurred by the Association for reimbursement of costs incurred in the repair of damage to Common Property, all as further described in this Declaration. 1.1.80 Supplemental Declaration. Supplemental Declaration means an instrument executed, acknowledged and Recorded by Declarant which imposes conditions, covenants, or restrictions or reserves easements for all or a portion of the Community in addition to the conditions, covenants, restrictions and easements established by this Declaration. A Supplemental Declaration may modify this Declaration only as it applies to the property encumbered by the Supplemental Declaration. 1.1.81 Telecommunications Facilities. Telecommunications Facilities means Improvements constructed in the Community, including cables, conduits, ducts, vaults, connecting hardware, wires, poles, transmitters, towers, antennae and other devices now existing - 11 - 5194-42305\SLT326\671527.4 5/9/07 o or that may be developed in the future to provide Telecommunication Services to the Community. 1.1.82 Telecommunications Services. Telecommunications Services means the reception, distribution or transmission of video, audio, data, telephony, all related vertical services, and any other similar services now existing or that may be developed in the future. Declarant may expand this definition in any Supplemental Declaration. 1.1.83 Unit. Unit means a separate interest in space as defined in California Civil Code Section 1351(f). Each Unit is a separate freehold estate, as separately shown, numbered and designated in the Condominium Plan. Each Unit includes the hardware on entry doors and the glass portions of the windows and sliding glass doors that are constructed at Unit boundaries, the first layer of dry wall, gas, water and waste pipes, ducts, chutes, conduits, wires and other utility installations that extend into the Units. The Unit shall not include those portions of the gas and water pipes, ducts, chutes, conduits, wires or other utility installations which serve more than one Unit. The boundaries of the Unit are approximately shown in the Condominium Plan. In interpreting deeds, the Declaration and the Condominium Plan, the actual boundaries of each Unit shall be deemed to extend to (a) the unfinished surface of the bottom of the ceiling slab, (b) the unfinished surface of the top of the floor slab, and (c) the first layer of dry wall which establishes the perimeter walls of the Unit, as constructed or reconstructed in substantial accordance with the original plans for the Unit. Load bearing and utility bearing walls at the perimeter of the Unit are not part of the Unit. Duct work which leads outside the Building and the fire sprinkler system are not part of the Unit. The foregoing interpretation shall apply notwithstanding any description expressed in the deed, the Condominium Plan or the Declaration, regardless of settling or lateral movements of Improvements, and regardless of variances between Unit boundaries shown in the Condominium Plan or deed and those of the Improvement. 1.1.84 VA. VA means the Department of Veterans Affairs of the United States of America and any department or agency of the United States government which succeeds to the VA's function of issuing guarantees of notes secured by Mortgages on residential real estate. 1.2 INTERPRETATION. 1.2.1 General Rules. This Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for subdividing, maintaining, improving and selling the Community. As used in this Declaration, the singular includes the plural and the plural the singular. The masculine, feminine and neuter each includes the other, unless the context dictates otherwise. Any reference in this Declaration to time of performance of obligations or to elapsed time means consecutive calendar days, months or years, as applicable, unless otherwise expressly provided. 1.2.2 Articles, Sections and Exhibits. The Article and Section headings are inserted for convenience only and may not be considered in resolving questions of interpretation or construction. Unless otherwise indicated, any references in this Declaration to articles, sections or exhibits are to Articles, Sections and Exhibits of this Declaration. Exhibits A, D and -12- 5194-42305\SLT326\ 671527.4 5/9/07 E attached to this Declaration are incorporated in this Declaration by this reference. The locations and dimensions of any Improvements shown on the Exhibits attached hereto and to any Notice of Addition are approximate only and the as-built location and dimension of any such Improvements shall control. 1.2.3 Priorities and Inconsistencies. (a) Governing Documents and Condominium Plan. If there are conflicts or inconsistencies between this Declaration and the Articles, Bylaws, Rules and Regulations, or a Condominium Plan, then the provisions of this Declaration shall prevail; however, the conflicting documents shall be construed to be consistent with the Declaration to the extent possible. (b) Notice of Addition. If there are any conflicts or inconsistencies between this Declaration and any Notice of Addition, the provisions of the Notice of Addition shall prevail; however, the conflicting documents shall be construed to be consistent with the Declaration to the extent possible. (c) Supplemental Declarations. If there are any conflicts or inconsistencies between this Declaration and a Supplemental Declaration, the Supplemental Declaration shall control with respect to those Condominiums encumbered by the Supplemental Declaration; however, the conflicting documents shall be construed to be consistent with the Declaration to the extent possible. (d) Mutual Benefit Agreement. If there are any conflicts between this Declaration and any Mutual Benefit Agreement, the Mutual Benefit Agreement shall control; provided however that the conflicting documents shall be construed to be consistent to the extent possible. 1.2.4 Supplemental Declarations. As each Phase of the Community is developed, Declarant may, concerning that Phase, Record one (1) or more Supplemental Declarations, which shall designate the use classifications within the areas affected and which may supplement this Declaration with such additional covenants, conditions, restrictions and land uses as Declarant may deem appropriate for the real property being annexed thereby. The provisions of any Supplemental Declaration may impose such additional, different or more restrictive conditions, covenants, restrictions, land uses and limitations as Declarant may deem advisable, taking into account the particular requirements of each Phase. 1.2.5 Severability. The provisions of this Declaration are independent and severable. If for any reason, any provision of this Declaration becomes invalid, partially invalid, unenforceable, illegal, null and void, or against public policy, or if for any reason, a court of competent jurisdiction determines that any provision of this Declaration is invalid, partially invalid, unenforceable, illegal, null and void, or against public policy, the validity and enforceability of the remaining provisions of this Declaration shall remain in effect to the fullest extent permitted by law. -13- 5194-42305\SLT326\ 671527.4 5/9/07 c o 1.2.6 Statutory References. All references made in this Declaration to statutes are to those statutes as currently in effect or to subsequently enacted replacement statutes. 1.2.7 FHA/VA Requirements. All of the requirements set forth in (a) Department of Housing and Urban Development (HUD) Condominium Regulations (see 24 CFR 234) and (b) HUD Revised Legal Policy attached to Appendix 27 of HUD Handbook 4265.1, entitled Home Mortgage Insurance Condominium Units Section 234(c) (collectively, the "FHA/VA Requirements") are incorporated herein by reference. The FHA/VA Requirements shall control and prevail over all other provisions of the Declaration to the extent of any inconsistency between them. ARTICLE 2 MAINTENANCE COVENANTS AND USE RESTRICTIONS The Community shall be held, used and enjoyed subject to the provisions of the Declaration, and the following restrictions and subject to the exemptions of Declarant set forth in the Governing Documents. 2.1 REPAIR AND MAINTENANCE. 2.1.1 Maintenance Standards. The Association shall maintain everything it is obligated to maintain in a clean, sanitary and attractive condition reasonably consistent with the level of maintenance reflected in the most current Budget, and in conformance with all applicable Maintenance Guidelines. Unless specifically provided in any Maintenance Guidelines, the Board shall determine, in its sole discretion, the level and frequency of maintenance of the Association Property and Improvements thereon. Each Owner shall maintain everything the Owner is obligated to maintain in a clean, sanitary and attractive condition and in conformance with all applicable Maintenance Guidelines; provided, however, that only Declarant (and not the Association or any other Owner) shall have the right to determine and enforce conformance with Maintenance Guidelines. 2.1.2 Specific Maintenance Obligations. The specific items listed in Exhibit D to this Declaration shall be maintained by either the Association or the Owners, as indicated. If an item is not listed in Exhibit D, then it shall be maintained in accordance with the general rules established in Section 2.1.3 or as provided in Section 2.1.3 and 2.1.5, as applicable. The maintenance obligations imposed in Exhibit D can be varied as provided in Section 2.1.4. 2.1.3 General Maintenance Obligations. Unless Exhibit D provides otherwise or the maintenance obligation is changed pursuant to Section 2.1.4, the Association shall maintain the Association Property (excluding the Exclusive Use Areas) and the Owners shall maintain the Units and the Exclusive Use Areas. Any maintenance of roof mounted air conditioning compressors or other roof mounted equipment shall be at Owner's expense using Association approved vendors. The Owner and the vendors of Owner must contact the Association for access to the roof to perform such maintenance. Each Owner shall immediately notify the Association of any dangerous, defective or other condition which could cause injury to person or property in such Owner's Unit or Exclusive Use Area. Unless other arrangements are -14- 5194-42305\SLT326\671527.4 5/9/07 c approved by the Board, all Improvements an Owner installs in any area of the Community must be maintained by the Owner who installed the Improvements. If the Owner fails to maintain the Improvements and the Board determines that the Improvements significantly interfere with the Association's ability to fulfill its obligations, the Association may remove any Improvement installed by an Owner. 2.1.4 Variations in Maintenance Obligations. The specific and general maintenance obligations established in Sections 2.1.2 and 2.1.3 may be varied as described in this Section. (a) If an Owner fails to maintain any Improvement the Owner is obligated to maintain, the Association has the power but not the duty to perform the maintenance. In a situation that the Association determines is an emergency, the Association may perform the maintenance immediately; in all other cases, the Association may perform the maintenance after Notice and Hearing. For purposes of this Section, an "emergency" is any situation where there is an imminent risk of injury to Persons or damage to property. The cost of all corrective work shall be charged to the Owner as a Special Assessment after Notice and Hearing. (b) If any portion of a Condominium that an Owner is obligated to maintain is (1) damaged as a result of the Association's gross negligence or willful misconduct, and (2) has not been upgraded from the original Improvements installed in the Condominium, then the Association is responsible for repairing the damage; otherwise, the Owner is responsible for repairing the damage. If anything an Owner is obligated to maintain causes damage to any Condominium or the Association Property, the Owner is responsible for paying the cost of repairs. Neither the Association nor any Owner is responsible for paying consequential damages. 2.1.5 Disputes Regarding Maintenance Obligations. If a dispute arises between Owners or between an Owner and the Association regarding any maintenance obligation, the Board, in its reasonable discretion, shall determine who is responsible for the maintenance obligation and that decision shall be binding on the Association and all Owners. 2.1.6 Inspections. The Board shall periodically cause a compliance inspection of the Community to be conducted by the Design Review Committee to report any violations thereof. The Board shall also cause condition inspections of the Association Property and all Improvements thereon to be conducted in conformity with the applicable Maintenance Guidelines, and in the absence of inspection frequency recommendations in any applicable Maintenance Guidelines at least once every three (3) years, in conjunction with the inspection required for the reserve study to be conducted pursuant to the requirements of the Bylaws, to (a) determine whether the Association Property is being maintained adequately in accordance with the standards of maintenance established in Section 2.1.1, (b) identify the condition of the Association Property and any Improvements thereon, including the existence of any hazards or defects, and the need for performing additional maintenance, refurbishment, replacement, or repair, and (c) recommend preventive actions which may be taken to reduce potential maintenance costs to be incurred in the future. The Board shall, during its meetings, regularly determine whether the recommended inspections and maintenance activities set forth in any - 15 - 5I94-42305\SLT326\ 671527.4 5/9/07 applicable Maintenance Guidelines have been followed and, if not followed, what corrective steps need to be taken to assure proper inspections and maintenance of the Association Property. The Board shall keep a record of such determinations in the Board's minutes. The Board shall keep Declarant fully informed of the Board's activities under this Section. The Board shall employ, consistent with reasonable cost management, such experts, contractors and consultants as are necessary to perform the inspections and make the reports required by this Section. 2.1.7 Reporting Requirements. The Association shall prepare a report of the results of the inspection required by this Section. The report shall be furnished to Owners and Declarant within the time set for furnishing the Budget to the Owners. The report must include at least the following: (a) a description of the condition of the Association Property, including a list of items inspected, and the status of maintenance, repair and need for replacement of all such items; (b) a description of all maintenance, repair and replacement planned for the ensuing Fiscal Year and included in the Budget; (c) if any maintenance, repair or replacement is to be deferred, the reason for such deferral; (d) a summary of all reports of inspections performed by any expert or consultant employed by the Association to perform inspections; (e) a report of the status of compliance with the maintenance, replacement and repair needs identified in the inspection report for preceding years; and (f) such other matters as the Board considers appropriate. For a period of ten (10) years after the date of the last Close of Escrow in the Community, the Board shall also furnish to Declarant (a) the report of each Condition Inspection performed for the Board, whenever such inspection is performed and for whatever portion of the Association Property that is inspected, within thirty (30) days after the completion of such inspection, and (b) the most recent Condition Inspection report prepared for any portion of the Association Property, no later than the date that is ten (10) days after the Association receives Declarant's written request. 2.1.8 Termite Eradication. If determined by the Board to be economically feasible, the Association shall adopt an inspection and prevention program for the prevention and eradication of infestation by wood-destroying pests and organisms in the Community. If the Association adopts such a program, the Association, on no less than fifteen (15) nor more than thirty (30) days' notice, may require each Owner and the occupants of the Owner's Condominium to vacate such Condominium to accommodate the Association's efforts to eradicate such infestation. The notice must state the reason for the temporary relocation, the date and time of the beginning of treatment, the anticipated date and time of termination of treatment, and that the occupants will be responsible for their own accommodations during the temporary relocation. Any damage caused to a Condominium by such entry by the Association or by any -16- 5194-42305\SLT326\ 671527.4 5/9/07 person authorized by the Association shall be repaired by the Association as a Common Expense. All costs involved in operating the inspection and preventive program as well as repairing and replacing the Association Property and Improvements thereon when the need for such maintenance, repair or replacement is the result of wood-destroying pests or organisms are a Common Expense. 2.1.9 Damage by Owners. Each Owner is liable to the Association for all damage to the Association Property that is sustained due to the negligence or willful act of the Owner, the Owner's Family, tenants or invitees, and any other Persons who derive their use of the Association Property from the Owner or from the Owner's Family, tenants or invitees. The Association may, after Notice and Hearing, levy a Special Assessment against the Owner representing a monetary charge imposed as a means of reimbursing the Association for costs incurred by the Association in the repair of damage to Association Property and facilities for which the Owner or the Owner's Family, tenants or invitees were responsible. The amount of the Special Assessment may include (a) the amount of any deductible payable on the insured portion of the loss (if the Association elects to make a claim under its insurance policy), (b) all costs and expenses actually incurred by the Association to correct damage that is not covered by the Association's insurance or for which no claim has been made, and (c) the amount of the increase in premiums payable by the Association, to the extent the increase is directly caused by damage that was attributed to the Owner or the Owner's Family, tenants or invitees, hi accordance with California Civil Code Section 1367. l(d), the Association shall have the power to impose a lien for the foregoing Special Assessment. If a Condominium is jointly owned, the liability of its Owners for damage to Association Property is joint and several, except to the extent that the Association and the joint Owners have otherwise agreed in writing. 2.1.10 Stormwater Pollutant Control. The Community is subject to the provisions of the federal Clean Water Act by appEcation of its municipal component known as the National Pollutant Discharge Elimination System ^NPDES"). NPDES is implemented by the State of California (through its statewide general NPDES permits) and the City^ (through its V Standard Urban Storm Water Mitigation Plan), each of which impose procedures known as best / management practices ("BMPs") for the handling and discharge of runoff from the Community into storm drains and waterways. BMPs govern activities on the Community before, during, and after construction. The Association and the Owners shall comply with any NPDES requirements and post-construction BMPs that may apply to the Community, including without limitation, the BMPs described in the Operation and Maintenance Plan for Post-Construction BMPs attached as Exhibit E. The Association shall implement an education and enforcement program to prevent the discharge of pollutants into the storm water system serving the Community. The storm drain system does not treat waste, and accordingly no hazardous materials, oils, grease, paint, solvents or similar materials, or trash shall be put into the storm drains or allowed to enter the storm drains. The Association shall conduct routine maintenance of all private storm drain systems within the Community in such a manner as to prevent discharge of pollutants to the public storm water conveyance system serving the Community and surrounding areas.. Records of the Association's storm drain maintenance activities shall be kept for no less than ten (10) years, and shall be available for inspection by the City to determine compliance with NPDES requirements and BMPs applicable to the Community. -17- 5!94-42303\SLT326\ 671527.5 5/22/07 o 2.2 SINGLE FAMILY RESIDENCE. The Residence shall be used as a dwelling for a single Family and for no other purpose, except for home based business use for all Units as permitted in Section 2.5. The Business Element of Live-Work Units may be used for residential purposes, home-based business use as provided in Section 2.5, or Small Business as permitted in Section 2.6. 2.3 FURTHER SUBDIVISION. Except as otherwise provided in this Declaration, no Owner may physically or legally subdivide the Owner's Condominium in any manner, including dividing such Owner's Condominium into time-share estates or time-share uses. This provision does not limit the right of an Owner to (a) rent or lease the Owner's entire Condominium by a written lease or rental agreement subject to this Declaration, (b) sell such Owner's Condominium, or (c) transfer or sell any Condominium to more than one (1) Person to be held by them as tenants-in-common, joint tenants, tenants by the entirety or as community property. Any failure by the tenant of the Condominium to comply with the Governing Documents constitutes a default under the lease or rental agreement. 2.4 RESALE AND RENTAL. Nothing in this Declaration shall be deemed to (a) prevent an Owner from selling the Condominium or (b) prevent an Owner from entering a written lease or rental agreement for occupancy of the Residence by a single Family, provided that the lease or rental agreement is made expressly subject to this Declaration and is for a term of at least twenty-six (26) days. The garage element of a Unit may not be sold or leased separately from the Residence. The Business Element of a Live-Work Unit may not be sold or leased separately from the Residence. Owners may also rent Condominiums to Declarant for use as sales offices, model homes and parking areas. All lessees, tenants, and their Families, agents and invitees are bound by the Governing Documents when present in the Community, and any violation of the Governing Documents constitutes a default under the lease or rental agreement. Declarant may not lease any portion of the Common Property to the Owners or the Association. 2.5 BUSINESS AND COMMERCIAL ACTIVITIES EXCLUDING LIVE- WORK UNITS. 2.5.1 Generally. Excluding Live-Work Units which shall be governed by Section 2.6, no Owner or other occupant of the Community may undertake any activity in any Condominium or on any portion of the Association Property for business, commercial or non- residential purposes nor for any other purpose that is inconsistent with the Governing Documents, including manufacturing, storage, vending, auctions, vehicle or equipment repair, any lease or rental agreement under which the Residence would be occupied by numbers of persons in excess of the maximum occupancy permitted under applicable law, and transient occupancy purposes (such as vacation rental, hotel, motel, inn, or similar temporary lodging). Any lease or rental agreement for a term of fewer than twenty-six (26) days or pursuant to which the lessor provides any services normally associated with transient occupancy shall be deemed to be for transient purposes and prohibited under this Declaration. All of the foregoing activities are prohibited whether they are engaged in full-time or part-time, whether they are for-profit or non-profit, and whether they are licensed or unlicensed. -18- 5194-42305\SLT326\671527.4 5/9/07 c 2.5.2 Exceptions. This Section shall not be interpreted to prohibit any of the following home-based businesses or trades (with the exception of businesses involving transient occupancy), provided that all of the following apply: (a) The hiring of employees or contractors to provide maintenance, construction or repair services that are consistent with the Governing Documents; (b) Rental or leasing of a Residence to Declarant for use as a sales office, model homes or parking area for any period of time; (c) Exercise by Declarant of any rights reserved to it under Article 15; (d) The provision of in-home health care or assisted-living services to any resident of the Community; (e) The provision of family home child care services as defined in California Health and Safety Code Section 1597.40, et seq., so long as such services comply with all applicable state and local laws, including licensing, inspection and zoning requirements. Provided, however, that the Association has the power to limit or prohibit use of recreational facilities and other common amenities in the Association Property by clientele of the business; (f) The operation of small home-based service businesses that comply with all of the following: (1) The operator of the business lives in the Residence on a permanent, full-time basis; (2) When conducted in the Community, business activities take place solely inside the Residence; (3) The Owner or occupant does not erect, install, place, or maintain any signs, logos, billboards, or other advertising materials or devices in the windows of the Condominium, or on the exterior of the Building, or on any Association Property, to advertise the activity, which is inconsistent with the signage standards of the Association; (4) Visits by clientele or suppliers are limited to regular business hours and clientele and suppliers park their vehicles only in the street; (5) The activity complies with all laws, regulations and ordinances applicable to the Community, including zoning, health and licensing requirements; (6) The activity otherwise complies with the Declaration and is consistent with the residential character of the Community; (7) The activity does not generate noise or odors that are apparent outside the Residence; and -19- 5194-42305\SLT326\671527.4 5/9/07 (8) The business does not increase the Association's liability or casualty insurance obligation or premium; or (g) Other activities that have been determined by governmental authorities to be consistent with the single-family residential uses in the Community, including, for example, residential care facilities that are operated in accordance with California Health and Safety Code Section 1566.5. 2.6 BUSINESS OR COMMERCIAL ACTIVITIES FOR LIVE-WORK UNITS. Except as otherwise provided herein, the Live-Work Units shall be held, used and enjoyed subject to the following restrictions and the exemptions of Declarant set forth in this Declaration. The Board may adopt separate, fair and reasonable Rules and Regulations to apply solely to the Live-Work Units to take into account the unique aspects of the Live-Work Units. 2.6.1 Permitted Uses. In addition to the residential uses authorized under this Declaration and the home-based business uses authorized under Section 2.5 above, each Live-Work Unit may be used for "Small Business" uses as described below. Small Businesses must meet the following conditions: The operator of the business lives in the Residence on a permanent, full-time basis; the business is consistent with City zoning ordinances and other governmental conditions of approval of the Community, as such ordinances and conditions may be amended from time to time; and the business does not generate odors that are apparent outside the Unit. The four types of Small Businesses are defined as "Public Access Businesses," "Mobile Businesses," "Casual Public Access Businesses" and "Secluded Businesses." An acceptable Small Business may fall into one or more of these categories. If a proposed business use is not clearly in one or more of these categories, then it is prohibited unless the Board approves such proposed use in writing. The following descriptions are not all-inclusive: (a) Public Access Businesses. Public Access Businesses typically have frequent personal interaction with individuals which meet in the Business Element in the Live-Work Units. Examples, without limitation, of permitted Public Access Businesses are: • Light Retail; • Architect/Landscape Architect/Engineer/Land Planner; • Interior Decorator; • Photography Studio/Portraiture/Bridal Services; • Planning Consultant; • Attorney; • Income Tax Service/Accounting; • Estate Planner; • Consulting and Business Services; • Music Teacher; " Tutor; • Kitchen and Bath Designer; • Real Estate Developer/Specialty Contractor; and • Dance Teacher. - 20 - 5194-42305\SLT326\ 671527.4 5/9/07 o (b) Mobile Businesses. Mobile Businesses typically involve a significant time away from the Live-Work Unit where work is either acquired or performed away from the Live-Work Unit. Mobile Businesses may also involve services arising out of shipments or deliveries to the Live-Work Unit. There are basically two subcategories of Mobile Businesses. One subcategory is characterized by the fact that principal operations are conducted entirely away from the Live-Work Unit, and the Business Element is principally used for storage and management activities. This subcategory includes such activities as follows: • Pick-up and Delivery Services; • Cleaning Services; • Pool Maintenance (provided no pool chemicals are stored on-site); • Building Contracting (provided no construction materials or vehicles are stored on-site); and • Landscaping. The second subcategory is characterized by the fact that much less of the principal operations are conducted away from the Live-Work Unit. This subcategory includes such activities as follows: • Electronic/Computer Equipment Repair and Fix-it Services; • Catering Services; • Flower Arranging and Plant Services; • Specialty Food Products and Delivery; and • Business Consulting. (c) Casual Public Access Businesses. This category typically involves occasional one-on-one interaction with individual client groups. Some meetings with clients will occur in the Business Element, and sporadic meetings with clients will occur away from the Live-Work Unit. Examples of this category of Small Business include the following: • Video Producer; • General Business Consultant; • Public Relations Consultant; • Copyrighter; • Photographer; and • Artist. (d) Secluded Businesses. Functionally, this category takes place in the Business Element of the Live-Work Unit, and it involves few or no meetings with the public or with clients. Communication with clients typically takes place electronically. Examples of this category of Small Business include the following: • Internet or Web-oriented Business/Service Provider; • Secretary/Communication Service Provider; • Billing Service Provider; and • Telecommuter. -21- 5194-42305\SLT326\ 671527.4 5/9/07 c 2.6.2 Other Permitted Uses. Notwithstanding the specific examples of permitted uses outlined in Sections 2.6.1 (a), 2.6.1(b), 2.6. l(c) and 2.6. l(d), and subject to the right of Declarant to prohibit a use, the Board may authorize other uses, using reasonable discretion, so long as such other uses do not detract from the overall image of the Community, and are not otherwise precluded by law. The Board will consider the effect on Units in the Community, and the Board will not approve a use in a Live-Work Unit that has a materially adverse impact on any other Unit in the Community. The Board may fairly and reasonably define the permitted uses, from time to time, more specifically than the guidelines outlined above. The Board may establish special Rules and Regulations to apply only to the Live-Work Units. Moreover, the Board may adopt Rules and Regulations establishing procedures allowing Owners and Persons under contract to purchase a Live-Work Unit in the Community to apply to the Board for written authorization of a proposed business use. 2.6.3 Prohibited Uses. Prohibited uses are those uses that are not compatible with the permitted uses for the Community, as well as all uses which are contrary to any City ordinance or other governmental condition of approval for the Community and uses which are disapproved by the Board. Specifically, prohibited uses include: (a) Medical; (b) Dental; (c) Veterinarian; (d) Tattoo parlors; (e) Churches, schools or political organizations; (f) Wholesale sales or manufacturing; (g) Body piercing services; (h) Kennels or other animal care facilities; (i) Storage or refining of hazardous materials and petroleum or other products; (j) Sales, repair or maintenance of vehicles, including automobiles, boats, motorcycles, aircraft, trucks or recreation vehicles, provided that light maintenance of commercial vehicles used in the Owner's Small Business shall be allowed so long as such maintenance is conducted entirely within the interior of a garage element of the Owner's Live- Work Unit; (k) Any business that is primarily sexually-oriented, such as a business offering nude, or semi-nude entertainment, a massage parlor, escort service, adult theater, adult bookstore or similar businesses; - 22 - 5194-42305\SLT326\ 671527.4 5/9/07 C 3 (1) Other uses (other than permitted uses under this Section 2.6) that Declarant, or the Board reasonably determines would detract from the overall image of the Community, or which might adversely affect the value of individual Units within the Community. Declarant shall have the right to disapprove a proposed use until Declarant no longer owns a Unit in the Community; and (m) Any business or activity which is contrary to any City or County ordinance then in effect. 2.7 ADDITIONAL USE RESTRICTIONS FOR LIVE-WORK UNITS. In addition to complying with the Use Restrictions in this Article, the Live-Work Units must also comply with the Use Restrictions in this Section. If there is a conflict between this Section and any other provision of this Article, this Section shall control. 2.7.1 Loading Activities. All loading and unloading activities shall be performed in the Live-Work Unit or in designated loading areas, if any, within the Association Property. The Board in its reasonable discretion shall have the right to establish loading and unloading policies for the Live-Work Units. 2.7.2 External Effects. Every Small Business shall be operated (a) so that it does not cause emissions of any obnoxious or dangerous degree of heat, glare, noise, paint, dust or other airborne particulate, radiation, or fumes beyond any boundary line of the Live-Work Unit in which the Small Business is located, and (b) so that ground vibration inherently and recurrently generated is not perceptible, without instruments, at any point on any boundary line of the Live-Work Unit in which the Small Business is located. The Board, exercising reasonable business judgment, shall determine whether or not the foregoing restriction has or has not been violated. No materials or wastes shall be permitted on a Live-Work Unit in such form or manner as to permit its transfer off of a Live-Work Unit by natural causes or forces, and all materials or wastes which might cause fumes or dust or which might constitute a fire hazard or which might be edible by, or otherwise attractive to animals, rodents or insects, shall be stored only in closed containers or within an enclosed structure. 2.7.3 Signs, hi addition to the items authorized to be displayed by Section 2.9 below, each Live-Work Unit shall be entitled to display one or more signs advertising the Small Business operating at the Live-Work Unit so long as (a) each such sign is of such color, size, shape and materials that have been approved by the Board or its authorized agent, and the Design Review Committee, and (b) approved by the City. 2.7.4 Parking and Vehicular Restrictions. No parking may obstruct free traffic flow, constitute a nuisance, or otherwise create a safety hazard. The Board, in its discretion, may waive in writing all or any portion of this Section, and the Board may establish specific Rules and Regulations describing authorized vehicles for the Community, setting rules for the use of guest parking spaces in the Community, limiting times and uses of guest spaces and issuing permits for the use of certain guest spaces, as authorized by Section 2.10.7 of this Declaration. - 23 - 5194-42305\SLT326\ 671527.4 5/9/07 2.7.5 Hours of Operation. Small Businesses are allowed to serve customers on-site (a) between 7:00 a.m. to 7:00 p.m., Monday through Friday, Saturday 8:00 a.m. to 9:00 p.m., and Sunday 9:00 a.m. to 5:00 p.m., and (b) during additional hours approved by the Board and the City. 2.7.6 Lighting. Unless initially installed by Declarant or otherwise authorized by the Design Review Committee, all lighting shall be designed and located to reduce power consumption to its lowest practical level, to direct light rays inward (toward the Live- Work Unit) to the extent practicable, to be compatible with the lighting on adjacent Units in the Community and to be not unreasonably bothersome to other Units in the Community. 2.7.7 Fire Wall Assembly. There shall be no penetration of the wall, ceiling and floor assembly separating the Business Element area of the Live-Work Unit from the balance of the Live-Work Unit without the prior written consent of the Design Review Committee and the City. 2.8 NUISANCES. Noxious or offensive activities are prohibited in the Community and on any public street abutting or visible from the Community. The Board is entitled to determine if any device, noise, odor, or activity constitutes a nuisance. 2.8.1 Nuisance Devices. Nuisance devices may not be kept or operated in the Community or on any public street abutting the Community, or exposed to the view of other Condominiums or Association Property. Nuisance devices include the following: (a) All horns, whistles, bells or other sound devices (except security devices used exclusively to protect the security of a Residence or a vehicle and its contents); (b) Noisy or smoky vehicles, power equipment (excluding lawn mowers and other equipment used in connection with ordinary landscape maintenance), and Restricted Vehicles (defined below); (c) Devices that create or emit loud noises or noxious odors; (d) Construction or demolition waste containers (except as permitted in writing by the Design Review Committee); (e) Devices that unreasonably interfere with television or radio reception to a Condominium; (f) Plants or seeds infected with noxious insects or plant diseases; or (g) The presence of any other thing in the Community which may (1) increase the rate of insurance in the Community, (2) result in cancellation of the insurance, (3) obstruct or interfere with the rights of other Owners or the Association, (4) violate any law or the Governing Documents, or (5) constitute a nuisance or other threat to health or safety under applicable law or ordinance. - 24 - 5194-42305\SLT326\ 671527.4 5/9/07 C 3 2.8.2 Nuisance Activities. Nuisance activities may not be undertaken in the Community or on any public street abutting the Community, or exposed to the view of other Condominiums or Association Property without the Board's prior written approval. Nuisance activities include the following: (a) Hanging, drying or airing clothing, fabrics or unsightly articles in any place that is visible from other Condominiums, Association Property or public streets; (b) The creation of unreasonable levels of noise from parties, recorded music, radios, television or related devices, or live music performance; (c) The creation of unreasonable levels of noise from a barking dog or other animal kept in the Community (for example, chronic daily nuisance barking by a dog over extended periods of time); (d) Repair or maintenance of vehicles or mechanical equipment, except in a closed garage or rear yard screened from view by other Condominiums or Association Property; (e) Outdoor fires, except in barbecue grills and fire pits designed and used in such a manner that they do not create a fire hazard; (f) Outdoor storage of bulk materials or waste materials except in temporary storage areas designated by the Design Review Committee; or (g) Any activity which may (1) increase the rate of insurance in the Community, (2) result in cancellation of the insurance, (3) obstruct or interfere with the rights of other Owners, (4) violate any law or any Governing Document, or (5) constitute a nuisance or other threat to health or safety under applicable law or ordinance. 2.9 SIGNS. Subject to California Civil Code Sections 712, 713 and 1353.6, no sign, advertising device or other display of any kind shall be displayed in the Community or on any public street in or abutting the Community except for the following signs: 2.9.1 entry monuments, community identification signs, and traffic or parking control signs maintained by the Association; 2.9.2 for each Condominium, one (1) nameplate or address identification sign which complies with Design Review Committee rules; 2.9.3 for each Condominium, one (1) sign advising of the existence of security services protecting a Condominium which complies with Design Review Committee rules; 2.9.4 for each Condominium, one (1) sign advertising the Condominium for sale or lease that complies with the following requirements: - 25 - 5194-42305\SLT326\ 671527.4 5/9/07 c (a) the sign has reasonable design and dimensions (which shall not exceed eighteen (18) inches by thirty (30) inches in size), provided the sign is promptly removed at the close of the resale escrow or the lease, or upon the Owner's withdrawal of the Condominium from the resale or lease market; (b) the sign is of a color, style and location authorized by the Design Review Committee; 2.9.5 signs for Live-Work Units as authorized in Section 2.7 above; 2.9.6 for each Condominium, a noncommercial sign, poster, flag or banner must comply with the following requirements: (a) a noncommercial sign or poster must not be more than nine (9) square feet in size and a noncommercial flag or banner must not be more than fifteen (15) square feet in size; and (b) a noncommercial sign, poster, flag or banner may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces. 2.9.7 other signs or displays authorized by the Design Review Committee. 2.10 PARKING AND VEHICULAR RESTRICTIONS. 2.10.1 Definitions. The following definitions shall apply to parking and vehicular restrictions set forth in this Declaration: 2.10.2 Authorized Vehicle. An "Authorized Vehicle" is an automobile, a passenger van designed to accommodate ten (10) or fewer people, a motorcycle, or a pickup truck having a manufacturer's rating or payload capacity of one (1) ton or less. The Association has the power to identify additional vehicles as Authorized Vehicles in the Rules and Regulations in order to adapt this restriction to other types of vehicles that are not listed above. 2.10.3 Restricted Vehicles. The following vehicles are "Restricted Vehicles:" (a) large commercial-type vehicles (for example, stake bed trucks, tank trucks, dump trucks, step vans, and concrete trucks), (b) buses, limousines or vans designed to accommodate more than ten (10) people, (c) inoperable vehicles or parts of vehicles, (d) aircraft, (e) boats, jet skis and other water craft, (f) trailers (for example, trailers designed for horses, boats, motorcycles or other equipment or materials), (g) motor homes and recreational vehicles (for example, fifth-wheels, folding camping trailers, travel trailers, but not including van conversions and truck campers), (g) any vehicle or vehicular equipment deemed a nuisance by the Association, and (h) any other vehicle that is not classified as an Authorized Vehicle. If a vehicle qualifies as both an Authorized Vehicle and a Restricted Vehicle, then the vehicle is presumed to be a Restricted Vehicle, unless the vehicle is expressly authorized in writing by the Association. The Association has the power to identify additional vehicles as Restricted Vehicles in the Rules and Regulations to adapt this restriction to other types of vehicles that are not listed above. -26- 5194-42305\SLT326\671527.4 5/9/07 o 2.10.4 Parking Restrictions. (a) Restricted Vehicles. No Restricted Vehicle may be parked, stored or kept in the Community except for periods of two (2) hours or less in any twenty-four (24) hour period during loading, unloading, or emergency repairs. However, an Owner may park a Restricted Vehicle in the Owner's garage as long as the garage is kept closed and the presence of the Restricted Vehicle does not prevent any Authorized Vehicle from being parked in the garage at the same time. (b) Garage Parking. Each Owner shall at all times ensure that the Owner's garage accommodates at least the number of Authorized Vehicles for which it was originally constructed by Declarant. The garage element of Units shall be used for parking of vehicles and storage of personal property only. No garage may be used for any dwelling, commercial, recreational, or other purpose. Garage doors must be kept closed except as necessary for entry or exit of vehicles or Persons. 2.10.5 Parking Spaces and Storage Areas. (a) Assignment. Parking Spaces and storage areas for Units will be assigned to Owners in the deed conveying Units to Owners. The right to use an assigned parking space and/or storage area is an exclusive easement appurtenant to the Owner's Condominium, and it will run with the Condominium for the benefit of the Owner and future Owners of the Condominiumv. Each Unit other than "affordable units" (as defined in Section 3.5~) shall be entitled to a two-car garage space in the Parking Garage. (b) Transfer of Assigned Parking Spaces and Storage Areas. (1) Transfers. An Owner may, after the Close of Escrow, transfer that Owner's assigned parking space or storage area or exchange it for a parking space or storage area owned by another Owner or the Association. Each transfer of a parking space or storage area shall be evidenced by Recorded deed and must satisfy all applicable Mortgagee requirements to be enforceable. The deed shall reference the legal description of the transferee's Condominium as the parcel benefited by the transfer. (2) Restrictions. The assigned parking space or storage area in the Community are private property. No Owner may transfer by sale, lease, easements or license any assigned parking space or storage area in the Community to any Person other than an Owner in the Community, the Association, or the Declarant. All other transfers are void. (c) Commercial and Apartment Project Parking in Parking Garage. Certain parking spaces in the Parking Garage will be reserved for the Apartment Owner for use by the residential tenants in the Apartment Project and employees of the day care center in the Apartment Project, and other parking spaces may be reserved for the Commercial Owner, its tenants and their respective permittees, as more particularly provided in the Mutual Benefit Agreement(s). No Owner or Owner's visitor may park in any of the parking spaces assigned to the Apartment Owner or the Commercial Owner. - 27 - 5194-42305\SLT326\ 671527.4 5/9/07 o (d) Residential Parking in Parking Garage. Each Owner shall be responsible for inspecting the Parking Garage to ensure that any parking space assigned to the Owner's Condominium will meet the length and width of the Owner's Authorized Vehicle(s). (e) Owner Maintenance of Storage Areas. No Owner may modify or puncture the interior walls of any Exclusive Use storage area nor remove or modify the door enclosing the storage area. No Owner may store in any Exclusive Use storage area any explosives or other hazardous materials. The Association shall have the power and duty to monitor the Parking Garage and storage areas for compliance. 2.10.6 Repair, Maintenance and Restoration. No Person may repair, maintain or restore any vehicle in the Community, unless the work is conducted in the garage element of the Owner's Unit with the garage door closed. However, no Person may carry on in any portion of the Community any vehicle repair, maintenance or restoration business. No vehicle repair (except in emergencies) or other activities may be undertaken in the Parking Garage. 2.10.7 Enforcement. The Board has the right and power to enforce all parking and vehicle use regulations applicable to the Community, including the removal of violating vehicles from streets and other portions of the Community in accordance with California Vehicle Code Section 22658.2 or other applicable laws. The City may, but is not required to, enforce such restrictions, rules and regulations, in addition to applicable laws and ordinances. 2.10.8 Street Parking. Parking spaces on streets in the Community are unreserved and unassigned, and they are available on a first-come-first-served basis. The Board has the power to: (a) establish additional rules and regulations concerning parking in the Association Property, including designating "parking," "guest parking," and "no parking" areas, (b) prohibit any vehicle parking, operation, repair, maintenance or restoration activity in the Community if it determines in its sole discretion that the activity is a nuisance, and (c) promulgate rules and regulations concerning vehicles and parking in the Community as it deems necessary and desirable. 2.11 ANIMAL REGULATIONS. No commercial or farm livestock, including poultry, may be kept in the Community. However, up to two (2) dogs or cats, or other common domestic pets may be kept in each Residence, subject to local ordinances and such rules and regulations as may be adopted by the Board. All pets should be suitable for living in confined quarters. No Person may keep any animal that is determined by the Board to be a nuisance to other residents in the Community. The Board has the power and discretion to determine whether the types or numbers of animals kept in a Residence are a nuisance, and the Board shall have the power to abate the nuisance through any legal procedure that is available to the Association. Small household pets such as fish and caged birds may be kept in reasonable numbers so long as there is no external evidence of their presence in the Community. Animals belonging to residents or guests in the Community must be kept in the Residence. If an animal is taken outside a Residence, it must be kept under the control of a Person capable of controlling the animal, either on a leash or other appropriate restraint. Each Owner shall be absolutely liable to each and all remaining Owners, their families, tenants, residents and guests for damages or -28- 5194-42305\SLT326\671527.4 5/9/07 injuries caused by any animals brought or kept in the Community by an Owner, by members of the Owner's Family, or by the Owner's guests, tenants or invitees. Each Owner shall immediately remove any excrement or clean other unsanitary conditions left by the Owner's animals on any portion of the Community. 2.12 ANTENNA RESTRICTIONS. No Person may install on the exterior of any Unit, any antenna, antenna tower, or over-the-air receiving device except for an "Authorized Antenna" installed on the deck of an Exclusive Use Area balcony or patio. An Authorized Antenna is (a) an antenna designed to receive direct broadcast satellite service, including direct- to-home satellite service, that is one (1) meter or less in diameter, (b) an antenna designed to receive video programming service, including multi-channel multipoint distribution service, instructional television fixed service, and local multipoint distribution service, and is one (1) meter or less in diameter or diagonal measurement, (c) an antenna designed to receive television broadcast signals, or (d) an antenna used to receive and transmit fixed wireless signals. An Authorized Antenna may be mounted on a mast to reach the height needed to receive an acceptable quality signal, subject to local governmental agency permitting requirements for safety purposes. 2.12.1 Restrictions on Installation. The Design Review Committee may adopt reasonable restrictions on installation and use of an Authorized Antenna as part of its Design Guidelines in order to minimize visibility of the Authorized Antenna from other Condominiums. Such restrictions may designate one (1) or more preferred installation locations, or require camouflage such as paint (subject to the antenna manufacturer's recommendations) or screening vegetation or other Improvements. However, no restriction imposed by the Committee may (a) unreasonably delay or prevent the installation, maintenance or use of an Authorized Antenna, (b) unreasonably increase the cost of the installation, maintenance or use of an Authorized Antenna, or (c) preclude acceptable quality reception. 2.12.2 Prohibitions on Installation. No Authorized Antenna or any other device may be installed on any rooftop or Building exterior wall or any other portion of the Association Property. Authorized Antennas may be installed in the Exclusive Use Area balcony or patio on a mast, tripod or railing but not affixed to any Building wall or roof. The Design Review Committee may prohibit the installation of an Authorized Antenna in a particular location (including Exclusive Use Area) if, in the Committee's opinion, the installation, location or maintenance of such Authorized Antenna unreasonably affects the safety of the Owners or any other Person, or for any other safety-related reason established by the Committee. The Committee may also prohibit an Owner from installing an Authorized Antenna on any real property which such Owner does not own or is not entitled to exclusively use or control under the Governing Documents. The Committee also has the power to prohibit or restrict the installation of any antenna or other over-the-air receiving device that does not meet the definition of an Authorized Antenna as set forth above. 2.12.3 Review after Installation. The Design Review Committee may review the location and installation of an Authorized Antenna after it is installed. After its review, the Committee may require that the Authorized Antenna be moved to a preferred location (if one has been designated) for safety reasons or to comply with reasonable restrictions subject to this Section and applicable law. -29- 5194-42305\SLT326\671527.4 5/9/07 c 2.12.4 Restatement of Applicable Law. This Section is intended to be a restatement of the authority granted to the Committee under the law. All amendments, modifications, restatements and interpretations of the law applicable to the installation, use or maintenance of an antenna or over-the-air receiving device shall be interpreted to amend, modify, restate or interpret this Section. 2.13 TRASH. Trash must be stored in sanitary trash containers. No trash, trash containers or recyclable materials may be stored in view of other Condominiums or Association Property. Central receptacles are provided for trash collection. All trash and waste must be removed from Units on a regular basis and placed in the appropriate trash bin. 2.14 OWNER-INSTALLED IMPROVEMENTS. 2.14.1 Outdoors. No Person may install on the exterior of any Unit any clotheslines, patio cover, wiring, air conditioning equipment, heating units, water softeners, other similar Improvements, or other exterior additions or alterations to any Condominium. Outdoor patio or lounge furniture and plants may be kept in an Exclusive Use Area patio or balcony in accordance with the Rules and Regulations and the Design Guidelines. Outdoor display of the flag of the United States is permitted pursuant to California Civil Code Section 1353.5, as long as the flag and flag pole are located solely within, on and over the Owner's Exclusive Use Area patio or balcony/deck. No enclosed or unenclosed additions are permitted. 2.14.2 Indoors. (a) General. No Owner may modify or attempt to modify any of the walls, floors and ceilings in the Unit except for surface finishes such as paint, wall coverings and floor coverings in accordance with this Section. No Person may apply film, tint, paper, foil, paint or other reflective substances to the glass portion of any window. (b) Structural Integrity. Nothing may be done in any Condominium or in, on or to the Association Property that will impair the structural (including water seal) or acoustical integrity of the Buildings, or that may alter the plumbing, electricity or natural gas facilities serving any other Condominium, except as otherwise expressly allowed in this Declaration. Waterbeds are permitted if a structural engineer confirms the bed does not exceed the load requirements of the Residence floor. Exercise equipment that creates noise capable of being heard in other Units may not be operated in a Unit. (c) Party Walls and other Walls at Unit Boundaries. No Owner may pierce, puncture, remove or otherwise modify, any Party Wall, nor any wall, ceiling or floor separating the Unit from Association Property or the Commercial Project or any other interior load-bearing walls, wherever located, except as may be permitted in the Design Guidelines for the hanging of art, mirrors and other similar items or as otherwise approved in writing by the Design Review Committee. (d) Noise Mitigation. Owners are prohibited from installing any sound system, loudspeakers, entertainment system or other music-, sound- or noise-generating or amplifying device in any Party Wall or wall, floor or ceiling separating the Unit from Association Property, without the prior written approval of the Design Review Committee. -30- 5194-42305\SLT326\671527.4 5/9/07 o Declarant may have installed noise-mitigating floor coverings in the Residences, and noise- mitigating materials in walls or ceilings shared with an adjoining Residence. No Person may remove or modify any Declarant-installed noise-mitigating materials in floors, ceilings or walls. No Person may replace any Declarant-installed noise-mitigating materials or install new flooring or coverings for ceilings or walls without replacing it with materials offering the same, substantially similar or better noise mitigation as the materials that were originally installed by Declarant. Before installation, the Owner shall present the Committee with written documentation from a licensed engineer, architect or other consultant with qualifications reasonably acceptable to the Committee that the noise mitigating properties of the proposed flooring or wall material are the same as, substantially similar to, or better than the materials originally installed by Declarant. If materials installed by an Owner are different from the materials installed by Declarant, and they do not perform to the manufacturer's stated ratings, then the Committee may require that the materials be removed at the Owner's sole expense and replaced at the Owner's sole expense with materials identical to those installed by Declarant. (e) Plumbing. The plumbing system serving a Unit may be an integral part of the Building-wide system serving the other Units in the Building. Any plumbing modifications could damage the Building-wide plumbing system and possibly the entire Building. No Owner may modify or attempt to modify any part of such a Building-wide plumbing system, except for replacement of in-Unit kitchen and bath fixtures such as faucets or toilets. An Owner may plunge blocked kitchen and bathroom facilities in his Unit, but may not use a snake, or cause a snake to be used, in any pipes unless instructed to do so by the Association. Each Owner is obligated to hire the Association, or to hire a contractor approved by the Association, to perform any maintenance of water, gas and sewer pipes located within the Unit. (f) Fire Sprinklers. The fire sprinkler system within a Unit may be an integral part of the fire safety system serving other Units and the Building. Any modification or attempt to modify such system within a Unit could affect the operation of the fire safety system within other Units and possibly the entire Building. The sprinkler system is heat- sensitive and sprinkler heads should not be exposed to open flame or any other intense heat source. The Association will maintain all fire sprinkler systems. Any Owner modification or attempt to modify such system within a Unit could affect the operation of the fire safety system within other Units and possibly the entire Building. By acceptance of a deed to a Condominium, each Owner acknowledges that Declarant is not responsible for (1) any damage to the Owners' Condominium or to the Association Property to the extent caused by an Owner's interference with or damage to fire sprinkler equipment, and (2) any damage to the Owner's Condominium caused by the activation of the sprinkler system. (g) Heating and Air Conditioning. The heating and air conditioning systems serving each Unit deliver heated or cooled air through air supply and return ducting and in-Unit grilles fed by one or more fan-coil units located on the roof. Changes to components of the system may affect its ability to perform as designed. (h) Smoke Detectors/Fire-Life Safety Systems. Smoke detectors and fire-life safety systems have been installed in all Condominiums in the Community. Owners are responsible for maintaining the smoke detectors and fire-life safety systems and ensuring that - 31 - 5194-42305\SLT326\ 671527.4 5/9/07 o they are kept in working order. By acceptance of a deed to a Condominium, each Owner acknowledges that Declarant is not responsible for any damage to the Owners' Condominium or to the Association Property to the extent caused by an Owner's failure to maintain the smoke detectors and fire-life safety systems. 2.14.3 No Liability. Neither the Declarant nor the Association shall be liable or responsible for any damage that results from Improvements installed, constructed or modified by or at the direction of an Owner. Owners are advised to consult and use qualified consultants and contractors when installing, constructing or modifying Improvements on the Owner's Condominium. 2.15 MECHANICS'LIENS. No Owner may cause or permit any mechanic's lien to be filed against the Association Property or another Owner's Condominium for labor or materials alleged to have been furnished or delivered to such Owner. Any Owner who permits a mechanics' lien to be so filed shall cause the lien to be discharged no later than five (5) days after receipt of written notice to discharge the lien is received from the Board. If the Owner fails to remove a mechanic's lien after written notice from the Board, the Board may discharge the lien and levy a Special Assessment against the violating Owner's Condominium to recover the cost of discharge. 2.16 DRAINAGE. There shall be no interference with or obstruction of the established surface drainage pattern(s) over any portion of the Community, unless an adequate alternative provision is made for proper drainage. Any alteration of the established drainage pattern must at all times comply with all applicable local governmental requirements. For the purpose hereof, "established" drainage is defined as the drainage which exists at the time of the first Close of Escrow for the sale of the Condominium by Declarant, or as shown on any plan approved by the Design Review Committee. Established drainage includes drainage within the Community and to and from property lying outside the Community. 2.17 WATER SUPPLY SYSTEM. No individual water supply, sewage disposal or water softener system is permitted on any Condominium unless such system is designed, located, constructed and equipped in accordance with the requirements, standards and recommendations of any water district having jurisdiction, the City, County, the Design Review Committee and all other applicable governmental authorities with jurisdiction. 2.18 VIEW OBSTRUCTIONS. Each Owner acknowledges that (a) there are no protected views in the Community, and no Condominium is assured the existence or unobstructed continuation of any particular view, and (b) any construction, landscaping (including the growth of landscaping) or other installation of Improvements by Declarant or other Owners may impair the view from any Condominium, and each Owner hereby consents to such view impairment. 2.19 SOLAR ENERGY SYSTEMS. In accordance with Civil Code Sections 714 and 714.1, each Owner may install a solar energy system (as defined in California Civil Code Section 801.5), on the Owner's Condominium to serve the Owner's domestic needs, as long as (a) the design and location of the solar energy system meet the requirements of all applicable -32- 5194-42305\SLT326\671527.4 5/9/07 governmental ordinances, and (b) the design and location receive the prior written approval of the Design Review Committee. 2.20 RIGHTS OF DISABLED. Each Owner may modify such Owner's Residence and the route over the Association Property leading to the front door of the Owner's Residence or the Home Office element of the Owner's Live-Work Unit, at the Owner's sole expense, to facilitate access to the Residence or Home Office by persons who are blind, visually impaired, deaf or physically disabled, or to alter conditions which could be hazardous to such persons, in accordance with California Civil Code Section 1360 or any other applicable law. 2.21 ASSOCIATION PROPERTY. The Association Property may not be altered without the Board's prior written consent. 2.22 MINERAL EXPLORATION AND EXTRACTION. No oil drilling, oil, gas or mineral development operations, oil refining, geothermal exploration or development, quarrying or mining operations of any kind may be conducted on the Community, nor are oil wells, tanks, tunnels or mineral excavations or shafts permitted upon the surface of any Condominium or within five hundred (500) feet of the surface of the Community. 2.23 POST-TENSION CONCRETE SLABS. Concrete slabs for Condominiums in the Community may be reinforced with a grid of steel cable installed in the concrete slab and then tightened to create extremely high tension. This type of slab is commonly known as a "Post-Tension Slab." Cutting into a Post-Tension Slab for any reason (for example, to install a floor safe, to remodel plumbing, etc.) is very hazardous and may result in serious damage to the Condominium, personal injury, or both. Each Owner shall determine if the Condominium has been constructed with a Post-Tension Slab and, if so agrees: (a) Owner shall not cut into or otherwise tamper with the Post-Tension Slab; (b) Owner shall not permit or allow any other Person to cut into or tamper with the Post-Tension Slab so long as Owner owns any interest in the Condominium; (c) Owner shall disclose the existence of the Post-Tension Slab to any Person who rents, leases or purchases the Condominium from Owner; and (d) Owner shall indemnify and hold Declarant and Declarant's agents, free and harmless from and against any and all claims, damages, losses or other liability (including attorneys' fees and costs of court) arising from any breach of this covenant by Owner. ARTICLE 3 DISCLOSURES This Article discloses information obtained from third-party sources such as consultants, government and public records. No Person should rely on the ongoing accuracy or completeness of the information discussed in this Article because many of the matters discussed below are outside the control of Declarant and the Association. Accordingly, Declarant does not make any guarantee as to the accuracy or completeness of the matters disclosed below. Furthermore, Declarant is under no obligation to update or revise any matter disclosed in this Article. This Article is intended to provide Owners with information known or provided to Declarant as of the date this Declaration was Recorded, to be used as a starting point for further independent investigation. - 33 - 5194-42305\SLT326\671527.4 5/9/07 3.1 NO REPRESENTATIONS OR WARRANTIES. No representations or warranties, express or implied, have been given by Declarant, the Association or their agents, in connection with the Community, its physical condition, zoning, compliance with law, fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation of the Community as a condominium project, except as expressly provided in this Declaration, as submitted by Declarant to the DRE, and as provided by Declarant to the first Owner of each Condominium. 3.2 MIXED USE PROJECT. The Commercial Project will contain retail and other commercial space on the ground floor of the Mixed Use Building. The upper floors of the Mixed Use Building will contain residential townhome Units which will be part of the Community. The Apartment Project will contain twelve affordable apartment units, along with retail and other commercial space, including a day care center. The Commercial Project and the Apartment Project are not part of the Community, but each has a relationship to the Community as set forth in the Mutual Benefit Agreement(s). 3.3 MUTUAL BENEFIT AGREEMENT. Declarant and the Commercial Owner and the Apartment Owner have entered into Mutual Benefit Agreement(s) that set forth the rights and responsibilities of the Association, the Commercial Owner and the Apartment Owner with respect to sharing the costs of maintenance, insurance and shared utilities for portions of the Association Property. The Association (and its members), the Commercial Owner and the Apartment Owner will all be responsible for sharing these costs as determined in the Mutual Benefit Agreement(s). The Mutual Benefit Agreement(s) also include certain easements for utilities, parking, exclusive use of certain portions of the Association Property, permitted encroachments and pedestrian and vehicular access through the Association Property for the benefit of the Commercial Owner and the Apartment Owner. 3.4 SECURITY AND PRIVACY DISCLAIMER. Neither Declarant nor the Association have any obligation to provide security, privacy or safety for the Community or for residents of the Community, nor do they make any representations or warranties that any feature of the Community will improve security, privacy or safety. Neither the Association nor Declarant shall be liable for (i) any unauthorized or criminal entry by third parties into the Community, or any Unit in the Community or any Improvements within the Community, (ii) any damage or injury to Persons, or (iii) any loss of property in and about the Community, any Unit within the Community or any Improvements within the Community, by or from any unauthorized or criminal acts of third parties, regardless of any action, inaction, failure, breakdown, malfunction or insufficiency of the security services and improvements provided by the Association or Declarant. 3.5 AFFORDABLE HOUSING. The Apartment Project is proposed to include twelve (12) apartments qualifying as ''affordable units" as defined from time to time by the City. These affordable units will be made available to families with incomes that are less than various percentages of the median income of the City. Rental restrictions will be placed on the affordable units, which may only be rented to lower income households. The affordable units will be located above the commercial and/or retail facilities in the Apartment Project. - 34 - 5194-42305\SLT326\ 671527.4 5/9/07 3.6 SPECIAL DISTRICTS. The Community may at present lie within other special tax districts, or the Community may be annexed to other special tax districts from time to time in the future. Owners are advised to consult the County Assessor's office for further information. 3.7 SUPPLEMENTAL REAL PROPERTY TAXES. The County Assessor has the authority to reassess new homes after the Close of Escrow based on the difference between its appraised value and the home's unimproved value for the period after escrow closes. The Assessor will issue a supplemental tax bill to Owners for the difference in the taxes due based upon the reassessment. The Declarant has no control over the valuation, timing or the amount of the supplemental bill resulting from the reassessment. Each Owner is solely responsible for the payment of the supplemental tax bill for such Owner's Unit. The following notice is given pursuant to Section 1102.6c of the California Civil Code: "California property tax law requires the Assessor to revalue real property at the time the ownership of the property changes. Because of this law, you may receive one or two supplemental tax bills, depending on when your loan closes. The supplemental tax bills are not mailed to your lender. If you have arranged for your property tax payments to be paid through an impound account, the supplemental tax bills will not be paid by your lender. It is your responsibility to pay these supplemental bills directly to the Tax Collector. If you have any question concerning this matter, please call your local Tax Collector's Office." Neither Declarant, nor any of its authorized agents, representatives, employees or sales people have made any representations or warranties regarding supplemental real property taxes. 3.8 ELECTRIC POWER LINES. Underground or overhead electric transmission and distribution lines and transformers are located in and around the Community. The lines and transformers are owned, operated and maintained by San Diego Gas & Electric. Power lines and transformers produce extremely low-frequency electromagnetic fields ("ELF-EMF") when operating. For some time, there has been speculation in the scientific community about health risks associated with living near ELF-EMF sources. In 1992, the United States Congress authorized the Electric and Magnetic Fields Research and Public Information Dissemination Program to perform research on these issues and to analyze the existing scientific evidence in order to clarify the potential for health risks from exposure to ELF-EMF. In May of 1999, the National Institute of Environmental Health Sciences ("NIEHS") issued a report to Congress summarizing its review of scientific data from over three hundred (300) studies on ELF-EMF health risks. The ELF-EMF studies consist of both epidemiological studies (studies of exposure in human populations) and controlled laboratory experiments on animal and cell models. While some epidemiological studies suggested some link between certain health effects and exposure to ELF-EMF, the laboratory experiments did not support such a link. According to the NIEHS report, the scientific evidence shows no clear pattern of health hazards from ELF-EMF exposure, and the NIEHS report did not find evidence of any link sufficient to recommend widespread -35- 5194-42305\SLT326\ 671527.4 5/9/07 3 changes in the design or use of electrical transmission equipment. However, because the evidence does not clearly rule out any effect, NIEHS advocated continuing inexpensive and safe reductions in exposure to ELF-EMF and endorsed current utility practices regarding design and siting of new transmission and distribution lines. Further information on this subject is available from the Regional EMF Manager, Southern California Edison Company, 1851 West Valencia Drive, Fullerton, California 92833. Additional information on ELF-EMF and copies of the NIEHS report are available from the EMF-RAPID website at http://www.niehs.nih.gov/ emfrapid/home.htm. 3.9 URBAN ENVIRONMENT. Living in an attached Condominium Building within a densely populated Community entails living in very close proximity to other persons and businesses, with attendant limitations on solitude. Walls, floors and ceilings have been designed and constructed to meet applicable building codes. However, Owners will hear noise from adjacent Units within the Community, including noise from showers, bathtubs, sinks, toilets or other sources of running water. Also, Owners may hear noise from items such as vacuum cleaners, stereos or televisions, or from people running, walking or exercising. Finally, Owners can expect to hear noise from adjacent residential and commercial areas. Owners may also experience light entering the Units from street lights located in close proximity to the windows and doors of the Units. 3.10 AIRPORT INFLUENCE AREA NOTICE. The following notice is included in this Declaration in accordance with California Civil Code Section 1353: NOTICE OF AIRPORT IN VICINITY This property is presently located in the vicinity of an airport, within what is known as an airport influence area. For that reason, the property may be subject to some of the annoyances or inconveniences associated with proximity to airport operations (for example: noise, vibration, or odors). Individual sensitivities to those annoyances can vary from person to person. You may wish to consider what airport annoyances, if any, are associated with the property before you complete your purchase and determine whether they are acceptable to you. An "airport influence area" is defined in California Civil Code Section 1353 as an area in which current or future airport-related noise, overflight, safety, or airspace protection factors may significantly affect land uses or necessitate restrictions on those uses as determined by an airport land use commission. 3.11 AIRPORT PROXIMITY DISCLOSURE. According to information provided to Declarant from its consultants, the Community is located within the below estimated distances of the following airports: McClellan - Palomar Airport 1.7 Miles 3.12 PROPERTY LINES. The boundaries of each Condominium in the Community and the Association Property are delineated on subdivision (tract) maps, lot line adjustments, parcel maps or Condominium Plans that are public records and are available at the County Recorder's office. -36- 5194-42305\SLT326\671527.4 5/9/07 3.13 UTILITY IMPROVEMENTS. There may be above-ground and subterranean utility Improvements such as transformers, lift stations, water or sewer facilities, telecommunications vaults and other visible Improvements necessary for the delivery of utilities or other services either on or adjacent to each Condominium. The placement of such Improvements is dictated by the needs of the applicable utility or service provider, and the presence of such Improvements in the Community is in accordance with easements created prior to or during the development of the Community. Each Condominium and portions of the Association Property are subject to one or more such easements for placement of utility Improvements. No Owner may modify, remove or otherwise interfere with utility Improvements on any Condominium or other portion of the Community. 3.14 RECLAIMED WATER. In its efforts to conserve water, the City will require the use of reclaimed (recycled) water to irrigate landscaped areas in the Community. Reclaimed water is partially treated waste water. It is not treated to be suitable for consumption by humans or domestic animals. There is no way to reliably tell the difference between potable water and reclaimed water without a chemical test. The water delivered to the Residences will at all times be domestic potable water. As with any water overspray, the repeated spray of reclaimed water used in irrigation may stain or discolor personal property, fences, walls and other Improvements. Neither Declarant nor the Association, nor their officers, directors, employees or agents, are liable for any property damage or personal injury caused by reclaimed water. Further information concerning reclaimed water is available at . 3.15 MOLD. Molds are simple, microscopic organisms, present virtually everywhere, indoors and outdoors. Mold can be any color, but is usually green, gray, brown or black. Mold requires a food source (such as paper, wood, leaves or dirt), a source of moisture and a suitable temperature (generally 40-100 degrees Fahrenheit) to grow. Individuals are exposed to molds on a daily basis, and in most instances there are no harmful effects. However, the buildup of molds in the indoor environment may contribute to serious health problems for some individuals. Due to a variety of factors, including the fact that sensitivities to various types of molds and other potential contaminants vary from person to person, there are currently no state or federal standards concerning acceptable levels of exposure to mold. Sources of indoor moisture that may lead to mold problems include, but are not limited to flooding, leaks, seepage, sprinkler spray hitting the Building, overflow from sinks or sewers, damp basement or crawl space, steam from shower or cooking, humidifiers, wet clothes drying indoors, watering house plants, and clothes dryers exhausting indoors. Each Owner should take precautions to prevent the growth of mold in the Residence from these and other sources. Preventative measures include, but are not limited to the following: (1) regularly cleaning the Unit; (2) regularly checking for accumulated moisture in corners and unventilated areas; (3) running fans, dehumidifiers and air conditioners to reduce indoor humidity; (4) stopping the source of any leak or flooding; (5) removing excess water with mops or a wet vacuum; (6) moving wet items to a dry, well ventilated area; (7) regularly cleaning and disinfecting indoor and outdoor surfaces that may contain mold; (8) having major appliances, such as furnaces, heat pumps, central air conditioners, ventilation systems and furnace-attached humidifiers inspected, cleaned and serviced regularly by a qualified professional; (9) cleaning -37- 5194-42305\SLT326\ 671527.4 5/9/07 o the refrigerator, air conditioner and dehumidifier drip pans and filters regularly and ensuring that refrigerator and freezer doors seal properly; and (10) avoiding over-watering of landscaping. It is the Owner's responsibility to monitor that Owner's Unit on a continual basis for excessive moisture, water and mold accumulation. For additional information regarding mold, please refer to the following websites: California Department of Health Services - http://www.dhs.ca.gov; Centers for Disease Control and Prevention - http://www.cdc.gov/nceh; U.S. Environmental Protection Agency - http://www.epa.gov; Illinois Department of Public Health - http://www.idph.state.il.us; and Washington State Department of Health - http://www.doh.wa.gov. 3.16 NATURAL HAZARD ZONE DISCLOSURES. 3.16.1 Earthquake Fault Zones. California is subject to a wide range of earthquake activity. California has many known faults as well as yet undiscovered faults. Owner must evaluate the potential for future seismic activity that might seriously damage an Owner's Condominium. A major earthquake, which some have predicted will occur in our lifetimes, could cause very serious damage to Units, located even many miles from the epicenter of the earthquake. A more moderate earthquake occurring on a more minor fault, or on an undiscovered fault, could also cause substantial damage. Declarant makes no representations or warranties as to the degree of earthquake risk within the Community. Please read "The Homeowner's Guide to Earthquake Safety," and consult with the City, County, other public agencies, and appropriate experts to evaluate the potential risk. 3.16.2 Seismic Hazard Zone. Many portions of California are subject to risks associated with seismic activity. Areas that meet the definition of "Seismic Hazard Zone" in the Seismic Hazards Mapping Act (California Public Resources Code Section 2690, et seq.} are shown on maps that are prepared and released by the California Department of Conservation, Division of Mines and Geology. Such zones may pose an increased risk of damage to property from earthquakes and liquefaction. **[As of the date this Declaration is Recorded, Declarant has been informed that the State of California has not yet produced any seismic hazard zone maps for the Community. When such maps are released, they will be available for inspection at the offices of the County.]** Declarant makes no representations or warranties as to whether the Community is in a Seismic Hazard Zone, or whether seismic activity poses any elevated degree of risk to the Community. Owners are advised to consult with the City, County, other public agencies, and appropriate experts to evaluate the potential risk. For more information concerning seismic activity and risks, read "The Homeowner's Guide to Earthquake Safety." 3.17 ENCINAS WASTEWATER TREATMENT PLANT. The Encinas Wastewater Treatment Plant is located approximately mUes. 1/3 of a mile from the Community. This facility may generate noise, unpleasant odors, birds, pests, dirt, dust, traffic and other impacts in the vicinity of the Community. 3.18 ADJACENT COMMERCIAL CENTERS. Declarant intends to develop commercial and retail facilities and a day care center as part of the Commercial Project and the Apartment Project. Declarant anticipates that these Projects may contain retail stores, wholesale and discount outlets and other commercial and retail uses. Impacts from the commercial -38- 5194-42305\SLT326\ 671527.4 5/9/07 o facilities may include inconveniences due to construction, dust, lights, traffic noise and other impacts associated with commercial facilities. 3.19 DAY CARE FACILITY. The Apartment Project is planned to include a day care facility of approximately 3,400 square feet located on the ground floor. A fenced play area will be located at the rear of the day care facility. Condominiums in the vicinity of the day care facility may experience noise from children and adults arriving and departing, and children playing in the outdoor play area, from early in the morning until the day care facility closes in the evening. 3.20 CHANGE IN PLANS. Declarant has the right to develop the Annexable Area with Improvements that may be different in design, size, character, style and price from those in Phase 1 or any other Phase. 3.21 TRANSIT. The San Diego Northern Railroad maintains railroad tracks approximately . 250 feet from the Community. The Poinsettia Coaster Station parking lot is located approximately frofflimmediatelv adjacent to the Community. The Community may be impacted by noise, pollutants, traffic and other impacts from these facilities. The degree of impact of the railroad and the Coaster Station on residents of the Community will depend on the level and type of usage of the railroad and the level of usage of the Coaster Station. Declarant has no ability to control the level of use or the frequency of operations of either of these facilities. 3.22 ADJACENT STREETS. Avenida Encinas and Embarcadero Lane are located adjacent to the Community. The Community may be impacted by noise, pollutants, lights, traffic and other impacts from these streets. 3.23 NO ENHANCED PROTECTION AGREEMENT. No language in this Declaration, any Notice of Addition or any Supplemental Declaration shall constitute, or be interpreted to constitute, an enhanced protection agreement ("EPA"), as defined in California Civil Code Section 901. Further, no express or implied representations or warranties made by Declarant in any other writing are intended to constitute, or to be interpreted to constitute, an EPA. 3.24 ADDITIONAL PROVISIONS. There may be provisions of various laws, including the Davis-Stirling Common Interest Development Act codified at Sections 1350, et seq. of the California Civil Code and the Federal Fair Housing Act codified at Title 42 United States Code, Section 3601, et seq., which may supplement or override the Governing Documents. Declarant makes no representations or warranties regarding the future enforceability of any portion of the Governing Documents. ARTICLE 4 THE ASSOCIATION 4.1 GENERAL DUTIES AND POWERS. The Association has the duties and powers enumerated and described in the Governing Documents, in addition to the general and implied powers of a nonprofit mutual benefit corporation, generally to do all things that a corporation organized under California law may lawfully do which are necessary or proper in -39- 5194-42305\SLT326\671527.4 5/9/07 operating for the general welfare of the Owners, subject only to the limits on the exercise of such powers listed in the Governing Documents. Unless otherwise indicated in the Articles, Bylaws, this Declaration, or the Supplemental Declarations, the powers of the Association may be exercised by the Board. 4.2 SPECIFIC DUTIES AND POWERS. In addition to its general powers and duties, the Association has the following specific powers and duties. 4.2.1 Association Property. The power and duty to accept, maintain and manage the Association Property in accordance with the Governing Documents. The Association may install or remove capital Improvements on the Association Property. The Association may reconstruct, replace or refinish any Improvement on the Association Property. 4.2.2 Utilities. The power and duty to obtain, for the benefit of the Community, all water, gas and electric services necessary for the Association Property; the power and duty to obtain for the benefit of the Community, all commonly metered residential utilities. 4.2.3 Granting Rights. The power to grant exclusive or nonexclusive easements, licenses, rights of way or fee interests in the Association Property owned in fee simple by the Association, to the extent any such grant is reasonably required (a) for Improvements to serve the Community, (b) for purposes of conformity with the as-built location of Improvements installed or authorized by Declarant or the Association, (c) in connection with any lawful lot line adjustment, or (d) for other purposes consistent with the intended use of the Community. This power includes the right to create and convey easements for one or more Owners over portions of the Association Property. The Association may de-annex any portion of the Community from the encumbrance of the Declaration in connection with any lawful lot line adjustment. After the Association acquires fee title to or any easement right over Association Property, the affirmative vote of members owning at least sixty-seven percent (67%) of the Condominiums in the Community shall be required before the Board may grant exclusive use of any portion of that Association Property to any member, except as provided in California Civil Code Section 1363.07. Any measure placed before the members requesting that the Board grant exclusive use of any portion of the Association Property shall specify whether the Association will receive any monetary consideration for the grant and whether the Association or the transferee will be responsible for providing any insurance coverage for exclusive use of the Association Property. 4.2.4 Employ Personnel. The power to employ Persons necessary for the effective operation and maintenance of the Association Property, including legal, management and accounting services. 4.2.5 Insurance. The power and duty to keep insurance for the Association Property in accordance with this Declaration. 4.2.6 Sewers and Storm Drains. The power and duty to maintain the private sewer systems, private storm drains, or private drainage facilities in the Association - 40 - 5194-42305\SLT326\ 671527.4 5/9/07 o Property in accordance with the Governing Documents, and to indemnify the City against damages resulting from private sewer spillage. 4.2.7 Maintenance Guidelines. The power and duty to (a) operate, maintain and inspect the Association Property and its various components in conformity with any Maintenance Guidelines and any maintenance manual, and (b) review any maintenance manual for necessary or appropriate revisions no less than annually after the Board has prepared the Budget. 4.2.8 Rules and Regulations. The power, but not the duty, to adopt, amend, repeal and create exceptions to, the Rules and Regulations. (a) Standards for Enforceability. To be valid and enforceable, a Rule must satisfy all the following requirements: (1) The Rule must be in writing; (2) The Rule is within the authority of the Board conferred by law or by this Declaration, the Articles or the Bylaws; (3) The Rule is not inconsistent with governing law, this Declaration, the Articles or the Bylaws; (4) The Rule is adopted, amended or repealed in good faith and in substantial compliance with the requirements of Article 4 of Title 6 of Part 4 of Division 2 of the California Civil Code; (5) The Rule is reasonable; and (6) The Rule complies with the requirements of California Civil Code Section 1357.110. (b) Areas of Regulation. The Rules and Regulations may concern use of the Community, signs, parking restrictions, minimum standards of property maintenance, and any other matter under the Association's jurisdiction. (c) Limits on Regulation. The Rules and Regulations must apply uniformly to all Owners except that the Board may adopt separate fair and reasonable Rules and Regulations applying solely to the Live-Work Units. The rights of Owners to display in or on their Residences religious, holiday and political signs, symbols and decorations of the kinds normally displayed in residential condominium neighborhoods shall not be abridged. However, the Association may adopt time, place and manner restrictions for such displays if they are visible outside the Residence. No modification to the Rules and Regulations may require an Owner to dispose of personal property that was in compliance with all rules previously in force; however, this exemption shall apply only during the period of such Owner's ownership of the Condominium and it shall not apply to: (1) subsequent Owners who take title to a Condominium after the modification is adopted; or (2) clarifications to the Rules and Regulations. - 41 - 5194-42305\SLT326\ 671527.4 5/9/07 (d) Procedure for Adoption, Amendment and Repeal. Rules or procedures concerning (1) the use of Association Property, (2) the use of a Condominium, including any aesthetic standards or Design Guidelines that affect Condominiums, (3) member discipline, including any schedule of monetary penalties for violation of the Governing Documents, (4) any procedure for the imposition of penalties, (5) any standards for delinquent assessment payment plans, and (6) any procedures adopted by the Association for resolution of assessment disputes (each, a "Covered Rule") may only be adopted, amended or repealed in accordance with the following procedure: (1) The Board must provide written notice ("Notice") of a proposed change in a Covered Rule to the members at least thirty (30) days before making the change, except for an Emergency Rule Change (defined below). The Notice must include the text of the proposed change and a description of the purpose and effect of the proposed change (Notice is not required if the Board determines that an immediate change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the Association); (2) The decision on a proposed change shall be made at a Board meeting after consideration of comments made by the members of the Association; (3) The Board shall deliver Notice of the adopted change to every member of the Association within fifteen (15) days of adoption. If the change was an Emergency Rule Change, the notice shall include the text of the Emergency Rule Change, and the date on which the Emergency Rule Change expires; (4) If the Board determines that an immediate Rule change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the Association, it may make the change on an emergency basis ('Emergency Rule Change") and no Notice will be required. An Emergency Rule Change is effective for one hundred-twenty (120) days, unless the adopted change provides for a shorter effective period. Any change that is adopted as an Emergency Rule Change may not be re- adopted under authority of this subpart; (5) A Notice required by this Section 4.2.8(d) is subject to California Civil Code Section 1350.7; (6) A Rule change made pursuant to this Section 4.2.8(d) may be reversed as provided in California Civil Code Section 1357.140. The foregoing procedure does not apply to Rules that do not meet the definition of Covered Rules above, nor to decisions of the Board regarding maintenance of Association Property, a decision on a specific matter that is not intended to apply generally, a decision setting the amount of an Annual Assessment or a Special Assessment, a Rule change that is required by law if the Board has no discretion as to the substantive effect of the changes, or issuance of a document that merely repeats existing law or the Governing Documents. - 42 - 5194-42305\SLT326\ 671527.4 5/9/07 o 4.2.9 Borrowings. The power, but not the duty, to borrow money for purposes authorized by the Articles, Bylaws, Declaration, any Supplemental Declarations or any Notice of Addition, and to use the Association Property as security for the borrowing. 4.2.10 Contracts. The power and duty to enter into the Mutual Benefit Agreement, and the power, but not the duty, to enter into other contracts. This includes contracts with Owners or other Persons to provide services or to maintain Improvements in the Community and elsewhere which the Association is not otherwise required to provide or maintain by this Declaration. 4.2.11 Telecommunications Contract. The power to enter into, accept an assignment of, or otherwise cause the Association to comply with the terms and provisions of an exclusive telecommunications services contract ("Telecommunications Contract") with a telecommunications service provider ("Service Provider"), pursuant to which the Service Provider shall serve as the exclusive provider of Telecommunications Services to each Condominium in the Community. The Board shall only enter into, accept an assignment of, or otherwise cause the Association to comply with the terms of the Telecommunications Contract if the Board determines that the Telecommunications Contract is in the best interests of the Association. Although not exhaustive, the Board shall consider the following factors in making such a determination: (a) Initial Term and Extensions. The initial term of the Telecommunications Contract should not exceed five (5) years, and, if the Telecommunications Contract provides for automatic extensions, the length of each such extension should also not exceed five (5) years. (b) Termination. The Telecommunications Contract should provide that: (1) at least six (6) months before the end of either the initial or any extended term of the Telecommunications Contract, the entire Membership of the Association may, with the vote or written approval of at least sixty percent (60%) of all Members other than Declarant, prevent any automatic extension that the Telecommunications Contract may provide for (with or without cause), and thereby cause the Telecommunications Contract to expire, and (2) at any time, the Board may terminate the Telecommunications Contract if, in the sole discretion of the Board, the Service Provider fails to provide quality, state-of-the-art Telecommunications Services. (c) Fees. Whether the monthly fee charged to the Association by the Service Provider for the provision of the Telecommunications Services to all of the Condominiums represents a discount from the comparable retail fees charged by the Service Provider in the general geographic area in which the Community is located, and, if so, the amount of such discount. (d) Installation of Telecommunications Facilities. Whether the Service Provider is solely responsible for the installation, and the cost thereof, of all of the Telecommunications Facilities necessary to provide Telecommunications Services to each Condominium. -43- 5194-42305\SLT326\ 671527.4 5/9/07 o (e) Removal of Telecommunications Facilities. Whether the Service Provider has the right to remove the Telecommunications Facilities upon expiration or termination of the Telecommunications Contract. 4.2.12 Indemnification. (a) For Association Representatives. To the fullest extent authorized by law, the Association has the power and duty to indemnify Board members, Association officers, Design Review Committee members, and all Association committee members for all damages, pay all expenses incurred, and satisfy any judgment or fine levied as a result of any action or threatened action brought because of performance of an act or omission within what such Person reasonably believed to be the scope of the Person's Association duties ("Official Act"). Board members, Association officers, Design Review Committee members, and all Association committee members are deemed to be agents of the Association when they are performing Official Acts for purposes of obtaining indemnification from the Association pursuant to this Section. The entitlement to indemnification under this Declaration inures to the benefit of the estate, executor, administrator and heirs of any person entitled to such indemnification. (b) For Other Agents of the Association. To the fullest extent authorized by law, the Association has the power, but not the duty, to indemnify any other Person acting as an agent of the Association for damages incurred, pay expenses incurred, and satisfy any judgment or fine levied as a result of any action or threatened action because of an Official Act. (c) Provided by Contract. The Association also has the power, but not the duty, to contract with any Person to provide indemnification in addition to any indemnification authorized by law on such terms and subject to such conditions as the Association may impose. 4.2.13 Annexing Additional Property. The power, but not the duty, to annex, pursuant to Section 16.2, additional property to the Community encumbered by this Declaration. 4.2.14 Vehicle and Parking Restrictions. The power granted in Section 2.10 to identify Authorized Vehicles or Restricted Vehicles and to modify the vehicle and parking restrictions in the Governing Documents. 4.2.15 License and Use Agreements. The Association may enter into agreements with Declarant or any homeowners association having jurisdiction over the Annexable Area to share facilities located on the Association Property ("Facility") with the Owners of Residences in the Annexable Area. Any such agreement shall be in form and content acceptable to Declarant, the Board of Directors (without the approval of Owners) and Declarant or the board of directors of any adjacent homeowners association and shall include provisions regarding use and sharing of maintenance costs for the Facility. 4.2.16 Landscaping. The Board has the power, but not the duty, to grant Owners revocable licenses that allow Owners to replace and/or add landscaping Improvements to - 44 - 5194-42305\SLT326\ 671527.4 5/9/07 o o any portion of the Association Property, subject to the prior written approval of the Board, any reasonable restrictions or conditions the Board may impose, and the right of the Board to revoke such license, remove the Improvements and charge the Owner for the cost of such removal. 4.2.17 Prohibited Functions. (a) Property Manager. The Association shall not hire any employees, furnish offices or other facilities, or use any Association Property for an "on-site" Manager. The Association Manager shall at all times be a professional manager employed as an independent contractor or agent working at its own place of business. (b) Off-site Nuisances. The Association shall not use any Association funds or resources to abate any annoyance or nuisance emanating from outside the physical boundaries of the Community. (c) Political Activities. The Association shall not conduct, sponsor, participate in or expend funds or resources toward any activity, campaign or event, including any social or political campaign, event or activity which does not directly and exclusively pertain to the authorized activities of the Association. Furthermore, the Association shall not participate in federal, state or local activities or activities intended to influence a governmental action affecting areas outside the Community (for example, endorsement or support of legislative or administrative actions by a local governmental authority), nor shall it support or campaign for or against candidates for elected or appointed office or ballot proposals. There shall be no amendment of this Section so long as Declarant owns any portions of the Community. (d) The Association shall not request that any private facilities within the Community become public facilities unless the Owners of all Condominiums in the Community and all First Mortgagees have consented to such request in writing. No amendment of this Section 4.2.18(d) shall be effective without the approval of the City. 4.2.18 Standing to Resolve Disputes. The Association shall have standing to institute, defend, settle or intervene in litigation, alternative dispute resolution or administrative proceedings (each, an "Action"} in its own name as the real party in interest and without joining the Owners, in matters pertaining to (a) damage to the Association Property, (b) damage to portions of the Condominiums which the Association is obligated to maintain or repair, and (c) damage to portions of the Condominiums which arises out of, or is integrally related to, damage to the Association Property or portions of the Condominiums that the Association is obligated to maintain or repair (each, a "Claim"). However, the Association shall not have standing to institute, defend, settle or intervene in any Action in any matter pertaining only to an individual Condominium and not included in subsections (b) and (c) above. The Association may, in its sole discretion, elect to institute, intervene in, continue, settle or dismiss an Action at any time. If the Association institutes or intervenes in an Action on a Claim, the Association's standing shall be exclusive, and the Owners shall thereafter be barred from instituting a new Action or maintaining a pending Action on the same Claim. The Association's election to institute or intervene in an Action on a particular Claim shall not create any affirmative obligation on the part of the Association to maintain, settle or dismiss the Action, . 45 - 5194-42305\SLT326\ 671527.4 5/9/07 o except in the Association's sole discretion, and subject to Section 12.4. If the Association elects to settle an Action, the terms of the settlement shall be binding on the Owners, and the Owners shall be barred from instituting or continuing any other Action on the same Claim. If the Association elects to dismiss an Action, the dismissal shall be with prejudice to the institution or continuation by one or more Owners of any Action on the same Claim. 4.3 STANDARD OF CARE, NON-LIABILITY. 4.3.1 Scope of Powers and Standard of Care. (a) General Scope of Powers. Rights and powers conferred on the Board, the Design Review Committee or committees or representatives of the Association by the Governing Documents are not duties, obligations or disabilities charged upon those Persons unless the rights and powers are explicitly identified as including duties or obligations in the Governing Documents or law. Unless a duty to act is imposed on the Board, the Design Review Committee or committees or representatives of the Association by the Governing Documents or law, the Board, the Design Review Committee and Association committees have the right to decide to act or not act. Any decision not to act is not a waiver of the right to act in the future. (b) Business Affairs. This Section 4.3.l(b) applies to Board member actions in connection with management, personnel, maintenance and operations, insurance, contracts and finances, and Design Review Committee member actions. Each Board member shall perform the duties of a Board member in good faith, in a manner the Board member believes to be in the best interests of the Association and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. When performing Board duties, a Board member is entitled to rely on information, opinions, reports or statements, including financial data prepared or presented by: (1) One (1) or more officers or employees of the Association whom the Board member believes to be reliable and competent in the matters presented; (2) Counsel, independent accountants or other Persons as to matters which the Board member believes to be within such Person's professional or expert competence; or (3) A committee of the Board upon which the Board member does not serve, as to matters under its designated authority, which committee the Board member believes to merit confidence, so long as, in any such case, the Board member acts in good faith, after reasonable inquiry when the need therefor is indicated by the circumstances and without knowledge that would cause such reliance to be unwarranted. This Section 4.3.l(b) is intended to be a restatement of the business judgment rule established in applicable law as it applies to the Association. All modifications and interpretations of the business judgment rule applicable to the Association shall be interpreted to modify and interpret this Section 4.3.l(b). - 46 - 5194-42305\SLT326\ 671527.4 5/9/07 (c) Association Governance. This Section 4.3 applies to Board actions and Design Review Committee decisions in connection with interpretation and enforcement of the Governing Documents, architectural and landscaping control, regulation of uses within the Community, rule making and oversight of committees. Actions taken or decisions made in connection with these matters shall be reasonable, fair and nondiscriminatory. 4.3.2 Non-liability. (a) General Rule. No Person is liable to any other Person (other than the Association or a party claiming in the name of the Association) for injuries or damage resulting from such Person's Official Acts, except to the extent that such injuries or damage result from the Person's willful or malicious misconduct. No Person is liable to the Association (or to any party claiming in the name of the Association) for injuries or damage resulting from such Person's Official Acts, except to the extent that such injuries or damage result from such Person's negligence or willful or malicious misconduct. The Association is not liable for damage to property in the Community unless caused by the negligence of the Association, the Board, the Association's officers, the Manager or the Manager's staff. (b) Non-liability of Volunteer Board Members and Officers. A volunteer Board member or volunteer Association officer shall not be personally liable to any Person who suffers injury, including bodily injury, emotional distress, wrongful death or property damage or loss as a result of the tortious act or omission of the volunteer officer or Board member if all applicable conditions specified in California Civil Code Section 1365.7 are met. (c) Non-liability of Owners. Pursuant to California Civil Code Section 1365.9, no Owner shall be liable for any cause of action in tort which can be brought against the Owner solely because of the Owner's undivided interest in the Common Area so long as the Association keeps one (1) or more policies of insurance which include coverage for general liability of the Association in the amount required by California Civil Code Section 1365.9 and that insurance is in effect for the cause of action being brought. 4.4 MEMBERSHIP. 4.4.1 Generally. Every Owner shall automatically acquire a Membership in the Association and retain the Membership until such Owner's Condominium ownership ceases, at which time such Owner's Membership shall automatically cease. Ownership of a Condominium is the sole qualification for Membership. Memberships are not assignable except to the Person to whom title to the Condominium is transferred, and every Membership is appurtenant to and may not be separated from the fee ownership of the Condominium. The rights, duties, privileges and obligations of all Owners are as provided in the Governing Documents. 4.4.2 Transfer. The Membership of any Owner may not be transferred, pledged or alienated in any way, except on the transfer or encumbrance of such Owner's Condominium, and then only to the transferee or Mortgagee of the Owner's Condominium. A prohibited transfer is void and will not be reflected in the records of the Association. Any Owner -47- 5194-42305\SLT326\671527.4 5/9/07 who has sold the Owner's Condominium to a contract purchaser under an agreement to purchase may delegate the Owner's Membership rights to the contract purchaser. The delegation must be in writing and must be delivered to the Association before the contract purchaser may vote. The contract seller shall remain liable for all Assessments attributable to the contract seller's Condominium which accrue before title to the Condominium is transferred. If the contract seller fails or refuses to delegate the Membership rights to the contract purchaser before the Close of Escrow, the Association may record the transfer to the contract purchaser in the Association's records. However, no contract purchaser will be entitled to vote at Association meetings during the term of a purchase contract without satisfactory evidence of the delegation of the contract seller's Membership rights to the contract purchaser. The Association may levy a reasonable transfer fee against a new Owner and such Owner's Condominium (which fee shall be paid through escrow or added to the Annual Assessment chargeable to such new Owner) to reimburse the Association for the administrative cost of transferring the Membership to the new Owner on the Association's records. Such fee may not exceed the Association's actual cost involved in changing its records. 4.4.3 Classes of Membership. The Association classes of voting Membership are as follows: (a) Class A. Class A members are all Owners except Declarant for so long as a Class B Membership exists. Class A members are entitled to one (1) vote for each Condominium owned by such Class A members which is subject to Assessment. Declarant shall become a Class A member on conversion of Declarant's Class B Membership as provided below. The vote for each Condominium shall be exercised in accordance with Section 4.5, but no more than one (1) Class A vote may be cast for any Condominium. (b) Class B. The Class B member is Declarant. The Class B member is entitled to three (3) votes for each Condominium owned by Declarant which is subject to Assessment. The Class B Membership shall convert to Class A Membership on the earlier to occur of the following events: (1) The second (2nd) anniversary of the first Close of Escrow in the most recent Phase; or (2) The fourth (4th) anniversary of the first Close of Escrow in Phase 1. 4.5 VOTING RIGHTS. 4.5.1 Limits Generally. All voting rights are subject to the Governing Documents. Except as provided in Sections 4.5.2 and 12.3 of this Declaration and in as provided in the Bylaws, as long as there is a Class B Membership, any provision of the Governing Documents which expressly requires the vote or written consent of a specified percentage (instead of a majority of a quorum) of the Association's voting power before action may be undertaken shall require the approval of such specified percentage of the voting power of both the Class A and the Class B Memberships. Except as provided in Section 12.3 of this Declaration and as provided in the Bylaws, on termination of the Class B Membership, any - 48 - 5194-42305\SLT326\671527.4 5/9/07 provision of the Governing Documents which expressly requires the vote or written consent of Owners representing a specified percentage (instead of a majority of a quorum) of the Association's voting power before action may be undertaken shall then require the vote or written consent of Owners representing such specified percentage of both (a) the Association's total Class A voting power, and (b) the Association's Class A voting power represented by Owners other than Declarant. 4.5.2 Vote to Initiate Right to Repair Law Claim. Beginning on the date of the first annual meeting of Owners, Declarant relinquishes control over the Association's ability to decide whether to initiate a Right to Repair Law Claim. This means that Declarant, current employees and agents of Declarant, Board members who are appointed by Declarant, Board members elected by a majority of votes cast by Declarant, and all other Persons whose vote or written consent is inconsistent with the intent of the preceding sentence, are prohibited from participating and voting in any decision of the Association or Owners to initiate a Right to Repair Law Claim. 4.5.3 Joint Ownership. When more than one (1) Person holds an interest in any Condominium ("co-owners"), each co-owner may attend any Association meeting, but only one (1) co-owner shall be entitled to exercise the single vote to which the Condominium is entitled. Co-owners owning the majority interests in a Condominium may designate in writing one (1) of their number to vote. Fractional votes shall not be allowed and the vote for each Condominium shall be exercised, if at all, as a unit. Where no voting co-owner is designated or if the designation is revoked, the vote for the Condominium shall be exercised as the co-owners owning the majority interests in the Condominium agree. Unless the Association receives a written objection in advance from a co-owner, it shall be conclusively presumed that the voting co-owner is acting with the co-owners' consent. No vote may be cast for any Condominium if the co-owners present in person or by proxy owning the majority interests in such Condominium fail to agree to the vote or other action. The nonvoting co-owner or co-owners are jointly and severally responsible for all obligations imposed on the jointly-owned Condominium and are entitled to all other benefits of ownership. All agreements and determinations lawfully made by the Association in accordance with the voting percentages established in the Governing Documents are binding on all Owners and their successors in interest. 4.6 UNSEGREGATED REAL PROPERTY TAXES. To the extent not assessed to or paid by the Owners, the Association shall pay all real and personal property taxes and assessments levied on the Community. If all Condominiums in a Phase are taxed under a tax bill covering all of such Phase, then each Owner shall pay the Owner's share of any installment due under the tax bill to the Association at least ten (10) days before the delinquency date. The Association shall transmit the taxes to the appropriate tax collection agency on or before the delinquency date. The Association shall allocate taxes equally among the Owners and their Condominiums in such Phase, based on the total number of Condominiums in such Phase. The Association shall, at least forty five (45) days before the delinquency date of any tax installment, deliver to each Owner in such Phase a copy of the tax bill, along with a written notice setting forth the Owner's obligation to pay the Owner's share of the tax installment and the potential additional charges to the Owner for failure to comply. The Association shall pay the taxes on behalf of any Owner who does not pay the Owner's share. The Association shall add to the Annual Assessment of a delinquent Owner the amount of any sum advanced, plus interest at the - 49 - 5194-42305\SLT326\ 671527.4 5/9/07 rate of ten percent (10%) per annum and any amount necessary to reimburse the Association for any penalty or late charge actually assessed in connection with the tax bill for a Phase, which late charge results from the failure of the delinquent Owner to make timely payment of the Owner's share of the taxes. Until Close of Escrow for the sale of ninety percent (90%) of the Condominiums in the Community has occurred, this Section may not be amended without the written consent of Declarant. ARTICLE 5 DESIGN REVIEW COMMITTEE 5.1 MEMBERS OF COMMITTEE. The Design Review Committee shall be composed of three (3) members. The initial members of the Design Review Committee shall be representatives of Declarant until one (1) year after the original issuance of the Public Report for Phase 1 ("First Anniversary"). After the First Anniversary, the Board may appoint and remove one (1) member of the Design Review Committee, and Declarant may, but is not obligated to, appoint and remove a majority of the members of the Design Review Committee and fill any vacancy of such majority, until the earlier to occur of (a) Close of Escrow for the sale of ninety percent (90%) of all the Condominiums in the Community and the Annexable Area, or (b) the fifth (5th) anniversary of the original issuance of the Public Report for Phase 1, after which the Board may appoint and remove all members of the Design Review Committee. Design Review Committee members appointed by the Board must be Owners but Design Review Committee members appointed by Declarant need not be Owners. Members of the Board of Directors may serve as Design Review Committee members. 5.2 POWERS AND DUTIES. 5.2.1 General Powers and Duties. The Design Review Committee shall consider and act upon all plans and specifications submitted for its approval, including inspection of work in progress to assure conformity with plans approved by the Design Review Committee, and shall perform such other duties as the Board assigns to it. 5.2.2 Issuance of Standards. The Design Review Committee shall annually issue and update its Design Guidelines and provide notice of any requirements for Committee approval of proposed Improvements. The notice shall describe the types of proposed Improvements that require Committee approval, and it shall include a copy of the procedure used to review and approve or disapprove such proposed Improvements. The Design Guidelines may require a fee to accompany each application for approval, and may identify additional factors which the Design Review Committee will consider in reviewing submissions. The Design Review Committee may provide that fees it imposes be uniform, or that fees be determined in any other reasonable manner. The Design Review Committee may require such detail in plans and specifications submitted for its review as it deems proper, including landscape plans, floor plans, site plans, drainage plans, elevation drawings and descriptions or samples of exterior materials and colors. 5.2.3 Retaining Consultants. The Design Review Committee has the power, but not the duty, to retain licensed architects, contractors and other professionals to advise its members in connection with decisions. -50- 5194-42305\SLT326\ 671527.4 5/9/07 o 5.3 REVIEW OF PLANS AND SPECIFICATIONS. 5.3.1 Improvements Requiring Approval. No Owner may construct, install or alter any Improvements in a Condominium which affects the structural integrity of the walls, floors and ceilings of the Condominium or any structural or ornamental component of any Building without the prior written approval of the Design Review Committee. The Design Review Committee may review the Improvements' impact on (1) the structural integrity of the Building, (2) the safety of the Owners and the public, (3) the noise heard beyond the Condominium in which the Improvement is located, (4) fire safety, (5) common utilities and (6) the Association Property (collectively, the "Design Factors"). The Design Review Committee may review the impact the construction, installation, or altering of the Improvement has on the Design Factors, as well as the impact the completed Improvement has on the Design Factors. 5.3.2 Application Procedure. Owners who seek Committee approval shall submit plans and specifications showing the dimensions, exterior elevation, color, materials used and location of the proposed Improvements, along with an initial review fee in an amount set in writing from time to time by the Committee, along with all other deposits and review materials required under this Article (collectively, an "Application"). Until changed by the Board, the address for the submission of the Application is the Association's principal office. The form of Application used by the Design Review Committee may include spaces allowing "Adjacent Owners" to sign or initial the Application confirming that they have been notified of the application. The Design Review Committee may establish a definition of "Adjacent Owners" in its Design Guidelines. Applications will be complete and may be approved or disapproved by the Design Review Committee even if all of the Adjacent Owners do not initial the Applications so long as the Owner submitting plans and specifications (the "Applicant") certifies that the Applicant has asked the Adjacent Owners to sign the Applications. The requirement that the Applicant attempt to obtain the signatures of Adjacent Owners is intended only to provide notice of the pending application to the Adjacent Owners. It does not create in the Adjacent Owners any power to approve or disapprove the Application by signing or withholding a signature. Only the Committee may approve or disapprove an Application. The Design Review Committee shall deliver its written approval, disapproval, or request for additional information or materials to the Applicant at the address listed in the Application no later than the date that is forty-five (45) calendar days after the date on which the Design Review Committee has received the complete Application (the "Review Deadline"). If, on the Review Deadline, the Committee has failed to deliver to the Applicant its written approval, disapproval, or request for additional information or materials, then the Application shall be deemed approved, and the Manager or a representative of the Board or Committee shall at the request of the Applicant execute a written approval therefor within fifteen (15) days after receipt of such request. 5.3.3 Standard for Approval. A decision on a proposed Improvement shall be consistent with California law, made in good faith and may not be unreasonable, arbitrary or capricious. If disapproved, the written decision shall include both an explanation of why the proposed Improvement is disapproved and a description of the procedure for reconsideration by the Board. The Design Review Committee shall approve an Application only if it determines -51- 5194-42305\SLT326\ 671527.4 5/9/07 that (a) installation, construction or alterations of the Improvements in the locations proposed will not be detrimental to the appearance of the Community as a whole, (b) the appearance of the proposed Improvements will be in harmony with the existing Improvements and the overall design theme in the Community, (c) installation, construction or alteration of the proposed Improvements will not detract from the beauty, wholesomeness and attractiveness of the Community or the enjoyment of the Community by the Owners, (d) maintenance of the proposed Improvements will not become a burden on the Association, and (e) the proposed Improvements are consistent with the Governing Documents. The Committee's decision on a proposed change may not violate any governing provision of law, including the Fair Employment and Housing Act, or a building code or other applicable law governing land use or public safety. The Committee may consider the impact of views from other Condominiums, reasonable privacy right claims, passage of light and air, beneficial shading and other aesthetic factors in reviewing, approving or disapproving any Application. However, neither the Declarant nor the Association warrants that any views in the Community are protected. No Condominium is guaranteed the existence or unobstructed continuation of any particular view. In review of an Application, the Committee shall not make any determination as to non-aesthetic factors such as general safety, fire protection, noise mitigation or compliance with building codes or applicable industry building standards. 5.3.4 Conditions of Approval. The Design Review Committee may condition its approval of an Application for any Improvement on any one (1) or more of the following: (a) The Applicant's delivery to the Association of security acceptable to the Association against any mechanic's lien or other encumbrance which may be Recorded against the Association Property or another Owner's Condominium as a result of such work; (b) The Applicant's delivery to the Association of the review fee described in Section 5.3.2 above; (c) Such changes to the Application as the Design Review Committee considers appropriate; (d) The Applicant's agreement to grant to the Association or other Owners such easements as are made reasonably necessary by the existence of the Improvement; (e) The Applicant's agreement to install water, gas, electrical or other utility meters to measure any increased utility consumption; (f) The Applicant's agreement to reimburse the Association for the cost of maintaining the Improvement (should the Association agree to accept maintenance responsibility for the Improvement as built); (g) The Applicant's agreement to complete the proposed work within a stated period of time; -52- 5194-42305\SLT326\671527.4 5/9/07 (h) If required by the Committee, the Applicant's deposit of adequate funds with the Association to repair or restore any Common Property that may be damaged by the Applicant or the Applicant's contractors. The Design Review Committee will determine the actual amount of the deposit in each case, but the amount shall be at least enough to cover the cost of repairing or restoring damage that is reasonably foreseeable to the Design Review Committee. The deposit shall be refundable to the extent the Design Review Committee finds that the work of Improvement is complete, and that the Association Property was not damaged or was restored at least to its condition when the work began; (i) If required by the Committee, the submission of additional plans and specifications or other information before approving or disapproving the Application. 5.3.5 Governmental Approvals. The Applicant shall meet the requirements of all applicable ordinances, codes and regulations of the City and County, including zoning laws, building and safety codes, fire codes and applicable inspection and permit requirements before making any construction, installation or alterations permitted under this Declaration. All approvals issued by the Committee are in addition to, and not in lieu of, applicable governmental approvals, which the Applicant must also obtain at his sole cost, prior to or concurrently with Committee approvals, and before commencing any work. Furthermore, governmental approvals are in addition to, and not in lieu of, Committee approvals required under the Governing Documents. No determination by any governmental agency that the Applicant has met applicable governmental requirements for a particular Improvement shall relieve the Applicant of its obligation to obtain all required Committee approvals required under this Article and the Governing Documents. 5.3.6 Matters Outside Scope of Approval. The Design Review Committee's approval or disapproval of each Application shall be based solely on the aesthetic considerations listed in this Article. Approval of any Application does not constitute a finding by the Design Review Committee that the Application or any portion of the Application (a) incorporates good engineering practices, (b) complies with applicable law, ordinance, code, or regulation, including zoning laws, building and safety codes or fire codes, (c) complies with the requirements of any utility provider, or (d) is permissible under the terms of any easement, license, permit, Mortgage, deed of trust, or other recorded or unrecorded instrument (other than the Governing Documents) that affects the land. Nothing in this Declaration shall be construed to require Design Committee approval of any construction, reconstruction, installation, removal or alteration of an Improvement by Declarant or by the Association. 5.3.7 Exculpation of Committee. By submitting an Application, each Applicant is deemed to agree that neither the Design Review Committee, nor the members thereof, nor Declarant, nor their respective agents, employees, attorneys or consultants shall be liable to any Person for: (a) Any matter outside the Committee's scope of approval as discussed in Section 5.3.6 above; (b) Any defect in any Improvement constructed by or on behalf of the Applicant pursuant to an approved Application; -53- 5194-42305\SLT326\ 671527.4 5/9/07 (c) Any loss, damage, or injury to Persons or property arising out of or in any way connected with work performed by or on behalf of the Applicant pursuant to an approved Application; or (d) Any loss, damage, or injury to Persons or property arising out of or in any way connected with the performance of the Design Review Committee's duties hereunder, unless due to willful misconduct or gross negligence. 5.4 MEETINGS AND ACTIONS OF THE DESIGN REVIEW COMMITTEE. The Design Review Committee shall meet as necessary to perform its duties. The Design Review Committee may, by resolution unanimously adopted in writing, designate an Owner or a Declarant representative to serve as a Design Review Committee Representative to take any action or perform any duties for and on behalf of the Design Review Committee except the granting of variances. The Design Review Committee Representative need not be a current member of the Design Review Committee. In the absence of such designation, the vote or written consent of a majority of the Design Review Committee constitutes an act of the Design Review Committee. All approvals issued by the Design Review Committee must be in writing. Verbal approvals issued by the Design Review Committee, any individual Design Review Committee member or any other representative of the Association are not valid, are not binding on the Association and may not be relied on by any Person. If within six (6) months after issuance of the approval, an Owner either does not begin work pursuant to approved plans or obtain an extension of time to begin work, the approval shall be automatically revoked and a new approval must be obtained before work can begin. 5.5 NO WAIVER OF FUTURE APPROVALS. The Design Review Committee's approval of any proposals, plans and specifications or drawings for any work done or proposed in connection with any matter requiring the Design Review Committee's approval does not waive the right to withhold approval of any similar proposals, plans and specifications, drawings or matters subsequently or additionally submitted for approval. 5.6 COMPENSATION OF MEMBERS. The Design Review Committee's members shall receive no compensation for services rendered, other than reimbursement for expenses incurred by them in performing their duties. 5.7 INSPECTION OF WORK. The Design Review Committee or its duly authorized representative may inspect any work for which approval of plans is required under this Article ("Work"). The right to inspect includes the right to require any Owner to take such action as may be necessary to remedy (including removal of) any noncompliance with the Design Review Committee-approved plans for the Work or with the requirements of this Declaration ("Noncompliance"). 5.7.1 Time Limit for Inspections. When the Work is complete, the Applicant shall immediately provide the Committee with written notice of completion on the form prescribed by the Committee. The Design Review Committee's right to inspect the Work and notify the responsible Owner of any Noncompliance shall terminate on the date that is sixty (60) calendar days after the date on which the Committee has received written notice from the Applicant on a form provided by the Committee that the Work is complete. If the Design - 54 - 5194-42305\SLT326\ 671527.4 5/9/07 c o Review Committee fails to send a written notice of Noncompliance to an Applicant before this time limit expires, the Work shall be deemed to comply with the approved Application. 5.7.2 Noncompliance. If an Improvement that requires the prior approval of the Design Review Committee is (a) commenced or completed without prior written approval by the Committee, (b) is not completed within the time limit established by the Committee in its approval, or (c) is not completed in substantial conformity with the approved Application, or (d) if no time limit is established by the Committee, the Applicant fails to complete the Work within one (1) year after the date on which the Application was approved, then a Noncompliance is deemed to exist, and then the Committee has the right, but not the obligation, to deliver a written notice of Noncompliance to the violating Owner, and the Association may, but is not required to, pursue the remedies set forth in this Section. 5.7.3 Remedy for Noncompliance. The Committee shall notify the Board in writing when an Owner fails to remedy any Noncompliance within sixty (60) days after the date of the notice of Noncompliance. After Notice and Hearing, the Board shall determine whether there is Noncompliance and, if so, the nature thereof and the estimated cost of correcting or removing the same. If a Noncompliance exists, the Owner shall remedy or remove the same within a period of not more than forty-five (45) days after the date that notice of the Board ruling is given to the Owner. If the Owner does not comply with the Board ruling within that period, the Association may record a Notice of Noncompliance (if allowed by law), correct the Noncompliance and charge the Owner for the Association's costs, or commence an action for damages or injunctive relief, as appropriate, to remedy the Noncompliance. 5.8 VARIANCES. The Design Review Committee may authorize variances from compliance with any of the architectural provisions of this Declaration or the Design Guidelines including restrictions on height, size, floor area or placement of structures, or similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or environmental considerations require. Variances must be evidenced in writing, must be signed by a majority of the Committee, and become effective on Recordation. After Declarant's right to appoint a majority of the Design Review Committee's members ends, the Board must approve any variance recommended by the Design Review Committee before any such variance becomes effective. If variances are granted, no violation of this Declaration shall be deemed to have occurred concerning the matter for which the variances were granted. The granting of a variance does not waive any of the provisions of this Declaration for any purpose except as to the particular property and particular provision of this Declaration covered by the variance, nor does it affect the Owner's obligation to comply with all laws affecting the use of that Owner's Condominium. The Committee's written variance shall be Recorded against the Applicant's Condominium in the Official Records. The cost of Recording the variance shall be borne solely by the Applicant. No variance shall conflict with local ordinances or any specific plan for the Community without the prior written approval of the City. 5.9 PRE-APPROVALS. The Design Review Committee may authorize pre- approval of specified types of construction activities if, in the exercise of the Design Review Committee's judgment, a pre-approval is appropriate to carry out the purposes of the Governing Documents. - 55 - 5194-42305\SLT326\ 671527.4 5/9/07 o 5.10 APPEALS. If a proposed Improvement is disapproved, the applicant is entitled to reconsideration by the Board of Directors at an open meeting that satisfies the requirements of California Civil Code Section 1363.05. This paragraph does not require reconsideration of a decision that is made by the Board, or the Design Review Committee if the Committee has the same membership as the Board. ARTICLE 6 PROPERTY EASEMENTS AND RIGHTS 6.1 EASEMENTS. 6.1.1 Maintenance and Repair. Declarant reserves for the benefit of the Association and all Association agents, officers and employees, nonexclusive easements over the Common Property as necessary to fulfill the obligations and perform the duties of the Association. 6.1.2 Utility Easements. Declarant reserves easements to install and maintain utilities over the Common Property for the benefit of the Owners and their Condominiums. Declarant reserves the right to grant additional easements and rights-of-way throughout the Community to utility companies and public agencies as it deems necessary for the proper development and disposal of the Community. Such right of Declarant shall expire on the Close of Escrow for the sale of the last Condominium in the Community and the Annexable Area. 6.1.3 Encroachments. Declarant reserves, for its benefit and for the benefit of all Owners and their Condominiums, a reciprocal easement appurtenant to each Condominium over the other Condominiums and the Common Property to accommodate (a) any existing encroachment of any wall or any other Improvement installed by Declarant or approved by the Design Review Committee, (b) authorized construction and repair, and (c) shifting, movement or natural settling of the Residences or other Improvements. Use of the easements may not unreasonably interfere with each Owner's use and enjoyment of the burdened Residences. 6.1.4 Easements for Public Service Use. Declarant reserves easements over the Community for public services of the local government agencies, including but not limited to, the right of law enforcement and fire protection personnel to enter upon the Community to carry out their official duties. 6.1.5 Easements for Water and Utility Purposes. Declarant reserves easements over the Community for public and private utility purposes, including but not limited to, the right of any public utility or mutual water district of ingress and egress over the Community to read and maintain meters, and use and maintain fire hydrants. 6.1.6 Completion of Improvements. Declarant reserves the right and easement to enter the Community to complete any Improvement which Declarant considers desirable to implement Declarant's development plan. 6.1.7 Owners' Easements in Association Property. Declarant reserves, for the benefit of every Owner, and each Owner's Family, tenants and invitees, nonexclusive - 56 - 5194-42305\SLT326\ 671527.4 5/9/07 o easements for pedestrian and vehicular access (all as applicable) over the Association Property in the Community as reasonably necessary for the use and enjoyment of each Condominium in the Community. This easement is appurtenant to and passes with title to every Condominium in the Community. This easement is subject to the restrictions, rights and other easements in the Governing Documents, including the Association's right to reasonably restrict access to portions of the Association Property, such as the roofs of the Buildings, maintenance facilities and other areas of the Association Property that may be designated by the Board. 6.1.8 Access Easements. (a) Reserved for Declarant and the Annexable Area. Declarant reserves for its benefit and for the benefit of the owners of Condominiums located in the Annexable Area (whether annexed to the Community or not) easements for pedestrian and vehicular access, including construction access, over all Private Streets and sidewalks located within the Community. (b) Reserved for Models. Declarant reserves for its benefit easements for pedestrian and vehicular ingress and egress over the Private Streets and through any entry gates serving the Community during business hours, seven (7) days per week, for access to those Condominiums within the Community which are used by Declarant, or its assignee, for models or sales offices, as permitted by the City. Declarant shall have the right to assign this easement, by written assignment, to any successor in interest. This easement shall terminate when the use of such Condominiums by Declarant or its assignee, for models or sales office purposes, has been permanently terminated. (c) Interim Access for Association and Owners. Declarant reserves for the benefit of the Association and the Owners, a nonexclusive interim access easement ("Interim Access Easement") over the areas shown as Private Streets on the Phase 1 Plan. Declarant may grant additional Interim Access Easements in future Phases as necessary to provide legal access, in accordance with Declarant's development plan. Interim Access Easements are granted for purposes of vehicular and pedestrian access, but they create no obligation on the Association or Owners to maintain the Improvements subject to the Interim Access Easement. An Interim Access Easement created in any Phase shall be effective when described and conveyed to the Association in an instrument Recorded with the first Close of Escrow in such Phase, and shall automatically terminate when the Private Street on which that Interim Access Easement is located is conveyed in fee to the Association. An Interim Access Easement shall be subject to relocation and termination by Declarant in order to accommodate Declarant's construction activities, provided such relocation and termination (1) is set forth in a Recorded instrument signed by Declarant, and (2) does not prevent legal access to any portion of the Community. 6.1.9 Exclusive Use Areas. Declarant reserves for the benefit of specified Owners exclusive easements over the Community for use of the Exclusive Use Areas, including for patios, balconies/decks, parking spaces and storage areas, as shown and assigned in this Declaration, any Notice of Addition, any deed or on the Condominium Plan or Plans for the Community, as applicable. Declarant also reserves, for the benefit of the Association, the right to enter the Exclusive Use Areas as necessary to perform the obligations of the Association. - 57 . 5194-42305\SLT326\ 671527.4 5/9/07 6.1.10 Commercial Project. Declarant reserves for the benefit of the Commercial Project, the Commercial Owner, the Apartment Project and Apartment Owner, and their respective tenants and permittees, easements over the Community as more particularly provided in the Mutual Benefit Agreement. 6.1.11 Drainage Easements. Declarant reserves, for the benefit of the Community, the Owners and the Association, reciprocal nonexclusive easements for drainage of water over, across and on the Community. 6.1.12 Telecommunications Easement. Declarant reserves blanket easements (collectively, "Telecommunications Easements") over the Community for access and for purposes of constructing, installing, locating, altering, operating, maintaining, inspecting, upgrading, removing and enhancing Telecommunications Facilities (collectively, "Telecommunications Purposes") for the benefit of Declarant. Such easements are freely transferable by Declarant to any other Person and their successors and assigns. No one, except for Declarant and Declarant's transferees, may use the Community for Telecommunications Purposes. All Telecommunications Facilities shall be owned, leased or licensed by Declarant, as determined by Declarant, in its sole discretion and business judgment. Transfer of the Community does not imply transfer of any Telecommunications Easements or Telecommunications Facilities. The holders of the Telecommunications Easements may not exercise the rights reserved hereunder in any manner which will unreasonably interfere with the reasonable use and enjoyment of the Community by any Owner. If the exercise of any Telecommunications Easement results in damage to the Community, then the easement holder who caused the damage shall, within a reasonable period of time, repair such damage. If Declarant has not conveyed the Telecommunications Easements in a Phase to another Person before the last Close of Escrow in the Community and the Annexable Area, then Declarant grants the Telecommunications Easements to the Association effective as of the last Close of Escrow in the Community and the Annexable Area. 6.2 ADDITIONAL EASEMENTS. 6.2.1 Declarant's Right to Grant. Declarant reserves easements over the Association Property owned in fee simple by the Association for the exclusive use by an Owner or Owners of contiguous property. Subject to Section 6.2.2, any such easement may be conveyed by the Declarant before the last Close of Escrow for sale of a Condominium in the Community and the Annexable Area. Such conveyance must be approved by the Board, which approval must not be unreasonably withheld. The purpose of the easement, the portion of the Association Property affected, the Condominium to which the easement is appurtenant, and any restrictions on use of the easement area shall be identified in a Recorded grant of easement. 6.2.2 Owner Approval Requirement. After the Association acquires fee title to or any easement right over all or any portion of the Association Property, unless this Declaration specifies a different percentage, the affirmative vote of at least sixty seven percent (67%) of the Owners is required before the Board may grant exclusive use of any portion of that Association Property to any Owner, except as provided in California Civil Code Section 1363.07. -58- 5194-42305\SLT326\671527.4 5/9/07 6.3 DELEGATION OF USE. Any Owner may delegate the Owner's right to use the Association Property in writing to the Owner's tenants, contract purchasers or subtenants who reside in such Owner's Residence, subject to regulation by the Board. An Owner who has delegated this right may not use the recreational facilities on the Association Property so long as such delegation remains in effect. 6.4 RIGHT OF ENTRY. 6.4.1 Association. The Association has the right to enter the Exclusive Use Areas and the Condominiums to inspect the Community, and may take whatever corrective action it determines to be necessary or proper. Entry onto any Exclusive Use Areas and Condominium under this Subsection may be made after at least three (3) days' advance written notice to the Owner of the Condominium except for emergency situations, which shall not require notice. Any damage to a Unit or Exclusive Use Area caused by entry under this Subsection shall be repaired by the Association. 6.4.2 Declarant. The Declarant has the right to enter the Condominiums and the Association Property (a) to comply with requirements for the recordation of subdivision maps or lot line adjustments in the Community or Annexable Area, (b) for repair of Improvements in accordance with the provisions of the Right to Repair Law, (c) to accommodate grading or construction activities, and (d) to comply with requirements of applicable governmental agencies. Declarant shall provide the applicable Owner reasonable notice before such entry, except for emergency situations, which shall not require notice. Any damage to the Community that is caused by entry under this Subsection shall be repaired by the Declarant. Unless otherwise specified in the applicable initial grant deed by which Declarant has transferred ownership of the subject Condominium or subject Association Property, this right of entry shall automatically expire on the later of the date that is twelve (12) years after (a) the date this Declaration is Recorded, or (b) the date the grant deed is Recorded by which Declarant first conveyed fee title to the subject real property under authority of a Public Report. 6.4.3 Owners. Each Owner shall permit other Owners, and their representatives, to enter that Owner's Exclusive Use Area and Condominium to perform installations, alterations or repairs to the mechanical or electrical services to a Condominium if (a) requests for entry are made in advance, (b) entry is made at a time reasonably convenient to the Owner whose Exclusive Use Area or the Condominium is to be entered, and (c) the entered Exclusive Use Area or the Condominium is left in substantially the same condition as existed immediately preceding such entry. Any damage to the Exclusive Use Area or the Condominium caused by entry under this Subsection shall be repaired by the entering Owner. ARTICLE 7 ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS 7.1 PERSONAL OBLIGATION TO PAY ASSESSMENTS. Each Owner shall pay to the Association all Assessments established and collected pursuant to this Declaration. The Association shall not levy or collect any Assessment that exceeds the amount necessary for the purpose for which it is levied. All Assessments, together with late payment penalties, interest, costs, and reasonable attorney fees for the collection thereof, are a charge and a -59- 5194-42305\SLT326\671527.4 5/9/07 o continuing lien on the Condominium against which such Assessment is made. Each Assessment, together with late payment penalties, interest, costs and reasonable attorney fees, is also the personal obligation of the Person who was the Owner of the Condominium when the Assessment accrued. The personal obligation for delinquent Assessments may not pass to any new Owner ("Purchaser") unless expressly assumed by the Purchaser or unless the Purchaser has actual or constructive knowledge of such delinquent Assessments, whether by virtue of the Recordation of a Notice of Delinquent Assessment or receipt from the Association of a certificate pursuant to California Civil Code Section 1368(a)(4). 7.2 ASSOCIATION MAINTENANCE FUNDS. The Association shall establish no fewer than two (2) separate Association Maintenance Fund accounts into which shall be deposited all money paid to the Association and from which disbursements shall be made, as provided in this Declaration. The Association Maintenance Funds may be established as trust accounts at a banking or savings institution and shall include: (a) an Operating Fund for current Common Expenses, (b) an adequate Reserve Fund for the portion of Common Expenses allocated to (1) reserves for Improvements which the Board does not expect to repair or replace on an annual or more frequent basis, and (2) payment of deductibles under the Association's insurance policies, and (c) any other funds which the Association may elect to establish. 7.3 PURPOSE OF ASSESSMENTS. The Assessments shall be used exclusively to (a) promote the Owners' recreation and welfare, (b) operate, improve and maintain the Common Property, and (c) discharge any other Association obligations under this Declaration. All amounts deposited into the Association Maintenance Funds must be used solely for the common benefit of all Owners for purposes authorized by this Declaration. Disbursements from the Operating Fund generally shall be made by the Association to discharge Association responsibilities which cannot be discharged by disbursements from the Reserve Fund. However, if the Board determines that the Operating Fund contains excess funds, the Board may transfer the excess funds to any other Association Maintenance Fund. Disbursements from the Reserve Fund shall be made by the Association only for the purposes specified in this Article and in California Civil Code Section 1365.5(c). 7.4 WAIVER OF USE. No Owner may be exempt from personal liability for Assessments duly levied by the Association, nor release such Owner's Condominium from the liens and charges thereof, by waiving use and enjoyment of the Common Property or by abandoning such Owner's Condominium. 7.5 LIMITS ON ANNUAL ASSESSMENT INCREASES. The following shall apply to the general component of Annual Assessments: 7.5.1 Maximum Authorized Annual Assessment For Initial Year of Operations. During the Fiscal Year in which Annual Assessments commence, the Board may levy an Annual Assessment per Condominium in an amount which exceeds one hundred twenty percent (120%) of the amount of Annual Assessments disclosed for the Community in the most current Budget filed with and approved by the DRE only if the Board first obtains the approval of Owners casting a majority of votes at a meeting or election of the Association in which more than fifty percent (50%) of the Condominiums are represented ("Increase Election"). This - 60 - 5194-42305\SLT326\ 671527.4 5/9/07 o Section does not limit Annual Assessment increases necessary for addressing an "Emergency Situation" as defined in Section 7.5.5. 7.5.2 Maximum Authorized Annual Assessment For Subsequent Fiscal Years. During the Fiscal Years following the Fiscal Year in which Annual Assessments commence, the Board may levy Annual Assessments which exceed the Annual Assessments for the immediately preceding Fiscal Year only as follows: (a) If the increase in Annual Assessments is less than or equal to twenty percent (20%) of the Annual Assessments for the immediately preceding Fiscal Year, then the Board must either (l)have distributed the Budget for the current Fiscal Year in accordance with California Civil Code Section 1365(a), or (2) obtain the approval of Owners casting a majority of votes in an Increase Election; or (b) If the increase in Annual Assessments is greater than twenty percent (20%) of the Annual Assessments for the immediately preceding Fiscal Year, then the Board must obtain the approval of Owners casting a majority of votes in an Increase Election. This Section does not limit Annual Assessment increases necessary for addressing an "Emergency Situation" as defined in Section 7.5.5. 7.5.3 Supplemental Annual Assessments. If the Board determines that the Association's essential functions may be properly funded by an Annual Assessment in an amount less than the maximum authorized Annual Assessment described above, it may levy such lesser Annual Assessment. If the Board determines that the estimate of total charges for the current year is or will become inadequate to meet all Common Expenses, it shall immediately determine the approximate amount of the inadequacy. Subject to the limits described in Sections 7.5.1, 7.5.2 and 7.5.5, the Board may levy a supplemental Annual Assessment reflecting a revision of the total charges to be assessed against each Condominium. 7.5.4 Automatic Assessment Increases. Despite any other provisions of this Section 7.5, on Declarant's annexation of the Annexable Area pursuant to Article 16, the Annual Assessment shall be automatically increased by the additional amount, if any, necessary to maintain the Association Property identified in the Notice of Addition as a part of the Phase that includes the Annexable Area as long as (a) the annexation is permitted by the DRE, and (b) the amount of such increase does not result in the levy of an Annual Assessment which is greater than the maximum potential Annual Assessment disclosed in all Public Reports for the Community. 7.5.5 Emergency Situations. For purposes of Sections 7.5.1, 7.5.2 and 7.7, 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 maintain the portion of the Community for which the Association is responsible where a threat to personal safety on the Community is discovered; and -61- 5194-42305\SLT326\ 671527.4 5/9/07 o o (c) An extraordinary expense necessary to maintain the portion of the Community for which the Association is responsible that could not have been reasonably foreseen by the Board when preparing the Budget. Before imposing or collecting an Assessment pursuant to this subsection (c), the Board shall adopt a resolution containing written findings regarding the necessity of the extraordinary expense involved and why the expense was not or could not have been reasonably foreseen in the budgeting process. The resolution shall be distributed to the Owners with the notice of the assessment. 7.6 ANNUAL ASSESSMENTS. 7.6.1 Commencement of Annual Assessments. Annual Assessments shall commence on all Condominiums in a Phase on the first day of the first calendar month after the first Close of Escrow in that Phase. However, the Close of Escrow for a Model Condominium Sale shall not cause the commencement of Annual Assessments in a Model Phase. Annual Assessments in a Model Phase shall commence against all Model Condominiums and Production Condominiums in the Model Phase on the first day of the first calendar month after the first Close of Escrow for the sale of a Production Condominium in the Model Phase. Annual Assessments for fractions of a month shall be prorated. Declarant shall pay its full pro rata share of the Annual Assessments on all unsold Condominiums for which Annual Assessments have commenced. The Board shall fix the amount of the Annual Assessment against each Condominium at least thirty (30) days in advance of each Annual Assessment period. However, unless otherwise established by the Board, the initial Annual Assessments shall be assessed in accordance with the most recent Budget on file with and approved by the DRE. Written notice of any change in the amount of any Annual Assessment, Capital Improvement Assessment or Reconstruction Assessment shall be sent by first-class mail to every Owner subject thereto not less than thirty (30) nor more than sixty (60) days before the increased Assessment becomes due. 7.6.2 Apportionment of Annual Assessments. All Annual Assessments shall be assessed uniformly and equally against the Owners and their Condominiums based on the number of Condominiums owned by each Owner except that portion of Annual Assessments attributable to those Common Expenses described on Exhibit ££ shall be variably assessed against the Owners and their Condominiums in proportion to the base interior square footage of Condominium Unit types, also described on Exhibit EjL. The Board may determine that funds in the Operating Fund at the end of the Fiscal Year be retained and used to reduce the following Fiscal Year's Annual Assessments. On dissolution of the Association incident to the abandonment or termination of the Community as a condominium project, any amounts remaining in any of the Association Maintenance Funds shall be distributed to or for the benefit of the Owners in the same proportions as such money was collected from the Owners. 7.6.3 Payment of Annual Assessments. Each Owner shall pay Annual Assessments in installments at such frequency, in such amounts and by such methods as are established by the Board. If the Association incurs additional expenses because of a payment method selected by an Owner, the Association shall charge the additional expenses to the Owner. Each installment of Annual Assessments may be paid to the Association in one (1) check or in separate checks as payments attributable to specified Association Maintenance Funds. If any payment of an Annual Assessment installment (a) is less than the amount assessed and (b) does not specify the Association Maintenance Fund or Funds into which it should be deposited, then - 62 - 5194-42305\SLT326\671527.4 5/9/07 the amount received shall be credited in order of priority first to the Operating Fund, until that portion of the Annual Assessment has been satisfied, and second to the Reserve Fund. 7.7 CAPITAL IMPROVEMENT ASSESSMENTS. The Board may levy, in any Fiscal Year, a Capital Improvement Assessment or Reconstruction Assessment to defray, in whole or in part, the cost of any construction, repair or replacement of a capital Improvement or such other addition to the Association Property. No Capital Improvement Assessments in any Fiscal Year which, if added to the Capital Improvement Assessments already levied during such Fiscal Year, exceed five percent (5%) of the Association's Budgeted gross expenses for such Fiscal Year, may be levied without the vote or written consent of Owners casting a majority of votes at an Increase Election. The Board may levy, in any Fiscal Year, a Capital Improvement Assessment applicable to that Fiscal Year which exceeds five percent (5%) of the Association's Budgeted gross expenses for such Fiscal Year if such increase is necessary for addressing an Emergency Situation as defined in Section 7.5.5. ARTICLE 8 INSURANCE 8.1 DUTY TO OBTAIN INSURANCE; TYPES. The Association shall obtain and keep in effect at all times the following insurance coverages: 8.1.1 General Liability. Adequate general liability insurance (including coverage for medical payments), insuring against liability for bodily injury, death and property damage arising from the activities of the Association and the Owners on the Common Property. The Association shall at all times carry policies of general liability insurance in amounts no less than the minimum amounts required by California Civil Code Sections 1365.7 and 1365.9. 8.1.2 Fire and Casualty Insurance. Fire and casualty insurance with extended coverage, special form, without deduction for depreciation, in an amount as near as possible to the full replacement value of all insurable Improvements on the Association Property and those portions of the Units consisting of all fixtures, installations or additions comprising a part of the Condominium Buildings housing the Units and all built-in or set-in appliances, cabinets and initial basic floor coverings in the amount designated by Declarant as the original replacement cost thereof based on the standard package of appliances, cabinets, and floor coverings offered to all Owners before the Close of Escrow. The casualty insurance shall not include earthquake coverage unless the Board is directed to obtain earthquake coverage by a majority of the Association's voting power. 8.1.3 Fidelity Insurance. Fidelity insurance coverage for any Person handling funds of the Association, whether or not such persons are compensated for their services, in an amount not less than the estimated maximum of funds, including reserve funds, in the custody of the Person during the term of the insurance. The aggregate amount of the fidelity insurance coverage may not be less than the sum equal to one-fourth (1/4) of the Annual Assessments on all Condominiums in the Community, plus reserve funds. 8.1.4 Insurance Required by Fannie Mae, Ginnie Mae and Freddie Mac. Casualty, flood, liability and fidelity insurance meeting the insurance requirements for - 63 - 5194-42305\SLT326\ 671527.4 5/9/07 condominium projects established by Fannie Mae, Ginnie Mae and Freddie Mac, as long as any of these entities is a Mortgagee or Owner of a Condominium in the Community, except to the extent such coverage is not reasonably available or has been waived in writing by the entity requiring the insurance coverage. 8.1.5 Other Insurance. Such other insurance insuring other risks customarily insured by associations managing condominium projects similar in construction, location and use. Such additional insurance may include general liability insurance and director's and officer's errors and omissions insurance in the minimum amounts established in California Civil Code Section 1365.9. 8.1.6 Beneficiaries. The Association's insurance shall be kept for the benefit of the Association, the Owners and the Mortgagees, as their interests may appear as named insureds, subject, however, to loss payment requirements established in this Declaration. 8.2 WAIVER OF CLAIM AGAINST ASSOCIATION. All policies of insurance kept by or for the benefit of the Association and the Owners must provide that the Association and the Owners waive and release all claims against one another, the Board and Declarant, to the extent of the insurance proceeds available, whether or not the insurable damage or injury is caused by the negligence or breach of any agreement by any of the Persons. 8.3 RIGHT AND DUTY OF OWNERS TO INSURE. Each Owner is responsible for insuring the Owner's personal property and all other property and Improvements in the Owner's Condominium. 8.3.1 Generally. Nothing in this Declaration precludes any Owner from carrying any public liability insurance he considers desirable; however, Owners' policies may not adversely affect or diminish any coverage under any of the Association's insurance policies. Duplicate copies of Owners' insurance policies shall be deposited with the Association on request. If any loss intended to be covered by the Association's insurance occurs and the proceeds payable are reduced due to insurance carried by any Owner, such Owner shall assign the proceeds of the Owner's insurance to the Association, to the extent of such reduction, for application to the same purposes as the reduced proceeds are to be applied. 8.3.2 Public Liability Insurance for Live/Work Units. Notwithstanding anything in this Declaration to the contrary, no Owner may operate a business in any Live-Work Unit unless (i) the Owner has obtained adequate public liability insurance coverage for bodily injury, death and property damage arising from business activities in the Live-Work Unit and on the Association Property (including visits by suppliers and customers), (ii) the policy names the Association as an additional insured, and (iii) the Owner has delivered a certificate of such insurance to the Association promptly after issuance of the policy. The policy limit should be no less than Five Hundred Thousand Dollars ($500,000.00), or any higher limit established by the City. The Owner shall keep such insurance in effect at all times. The Owner's insurance policy must contain a provision that the policy may not be canceled, terminated, materially modified or allowed to expire by its terms, without at least ten (10) days' prior written notice to the Owner and the Association. - 64 - 5194-42305\SLT326\ 671527.4 5/9/07 8.4 NOTICE OF EXPIRATION REQUIREMENTS. If available, each of the Association's insurance policies must contain a provision that the policy may not be canceled, terminated, materially modified or allowed to expire by its terms, without at least ten (10) days' prior written notice to the Board and Declarant, and to each Owner and Mortgagee, insurer and guarantor of a First Mortgage who has filed a written request with the carrier for such notice and every other Person in interest who requests such notice of the insurer. In addition, fidelity insurance shall provide that it may not be canceled or substantially modified without at least ten (10) days' prior written notice to any insurance trustee named pursuant to Section 8.5 and to each Fannie Mae servicer who has filed a written request with the carrier for such notice. 8.5 TRUSTEE FOR POLICIES. The Association is trustee of the interests of all named insureds under the Association's insurance policies. Unless an insurance policy provides for a different procedure for filing claims, all claims must be sent to the insurance carrier or agent by certified mail and be clearly identified as a claim. The Association shall keep a record of all claims made. All insurance proceeds under any Association insurance policies must be paid to the Board as trustees. The Board has the authority to negotiate loss settlements with insurance carriers, with participation, to the extent the Board desires, of First Mortgagees who have filed written requests within ten (10) days of receipt of notice of any damage or destruction as provided in Section 9.4. The Board is authorized to make a settlement with any insurer for less than full coverage for any damage, so long as the Board acts in accordance with the standard of care established in this Declaration. Any two (2) officers of the Association may sign a loss claim form and release form in connection with the settlement of a loss claim, and such signatures are binding on all the named insureds. A representative chosen by the Board may be named as an insured, including a trustee with whom the Association may enter into an insurance trust agreement and any successor to such trustee, who shall have exclusive authority to negotiate losses under any insurance policy and to perform such other functions necessary to accomplish this purpose. 8.6 ACTIONS AS TRUSTEE. Except as otherwise specifically provided in this Declaration, the Board has the exclusive right to bind the Association and the Owners to all matters affecting insurance carried by the Association, the settlement of a loss claim, and the surrender, cancellation and modification of all such insurance. Duplicate originals or certificates of all policies of fire and casualty insurance kept by the Association and of all renewals thereof, together with proof of payment of premiums, shall be delivered by the Association to all Owners and Mortgagees who requested them in writing. 8.7 ANNUAL INSURANCE REVIEW. The Board shall review the Association's insurance policies at least annually to determine the amount of the casualty and fire insurance referred to in Section 8.1. If economically feasible, the Board shall obtain a current appraisal of the full replacement value of the Improvements in the Association Property except foundations and footings, without deduction for depreciation, from a qualified independent insurance appraiser, before each such annual review. 8.8 REQUIRED WAIVER. All of the Association's insurance policies insuring against physical damage must provide, if reasonably possible, for waiver of: 8.8.1 Subrogation of claims against the Owners and tenants of the Owners; _ 65 - 5194-42305\SLT326\ 671527.4 5/9/07 8.8.2 Any defense based on coinsurance; 8.8.3 Any right of setoff, counterclaim, apportionment, proration or contribution due to other insurance not carried by the Association; 8.8.4 Any invalidity, other adverse effect or defense due to any breach of warranty or condition caused by the Association, any Owner or any tenant of any Owner, or arising from any act or omission of any named insured or the respective agents, contractors and employees of any insured; 8.8.5 Any right of the insurer to repair, rebuild or replace, and, if the Improvement is not repaired, rebuilt or replaced following loss, any right to pay under the insurance an amount less than the replacement value of the Improvements insured; 8.8.6 Notice of the assignment of any Owner of the Owner's interest in the insurance by virtue of a conveyance of any Condominium; 8.8.7 Any right to require any assignment of any Mortgage to the insurer; 8.8.8 Any denial of an Owner's claim because of negligence or willful acts by the Association or other Owners; and 8.8.9 Prejudice of the insurance by any acts or omissions of Owners that are not under the Association's control. ARTICLE 9 DESTRUCTION OF IMPROVEMENTS 9.1 RESTORATION OF THE COMMUNITY. Except as otherwise authorized by the Owners, if any portion of the Community which the Association is responsible for maintaining is destroyed, the Association shall restore the same to its former condition as promptly as practical and in accordance with applicable law and City approvals, including plan checks, permits and fee payments. The Association shall use the proceeds of its insurance for reconstruction or repair of the Community unless otherwise authorized in this Declaration or by the Owners. The Board shall commence such reconstruction promptly. The Community shall be reconstructed or rebuilt substantially in accordance with the original construction plans if they are available, unless changes recommended by the Design Review Committee have been approved by at least a majority of the Owners. If the insurance proceeds amount to at least ninety percent (90%) of the estimated cost of restoration and repair, the Board shall levy a Reconstruction Assessment to provide the additional funds necessary for such reconstruction. If the insurance proceeds amount to less than ninety percent (90%) of the estimated cost of restoration and repair, the Board may levy a Reconstruction Assessment and proceed with the restoration and repair only if both of the following conditions ("Conditions To Reconstruction") have been satisfied: (a) the levy of a Reconstruction Assessment to pay the costs of restoration and repair of the Community is approved by the Owners, and (b) within one (1) year after the date on which the destruction occurred, the Board Records a certificate of the resolution authorizing the restoration and repair ("Reconstruction Certificate"). If either of the Conditions To Reconstruction does not occur after a destruction for which insurance proceeds available for - 66 - 5194-42305\SLT326\ 671527.4 5/9/07 o restoration and repair are less than ninety percent (90%) of the estimated cost of restoration and repair, then the Board shall proceed as provided in Section 9.2. 9.2 SALE OF COMMUNITY AND RIGHT TO PARTITION. No Owner shall have the right to partition of the Owner's interest in the Condominium and there shall be no judicial partition of the Community, or any part thereof, except as provided in California Civil Code Section 1359(b). For purposes of Subsection 4 of Section 1359(b), partition may occur only if all of the following conditions are satisfied: (a) either or both of the Conditions to Reconstruction described in Section 9.1 have failed to occur; (b) within six (6) months after the date on which destruction occurred, restoration or repair has not actually commenced; and (c) the Owners of at least sixty seven percent (67%) of the Condominiums in the Community approve the partition. In such event, the Association shall prepare, execute and Record, as promptly as practical, the certificate stating that a majority of the Board may properly exercise an irrevocable power of attorney to sell the Community for the benefit of the Owners and execute such other documents and instruments as may be necessary for the Association to consummate the sale of the Community at the highest and best price obtainable, either in its damaged condition, or after damaged structures have been razed. Such certificate shall be conclusive evidence of such authority for any Person relying thereon in good faith. The net proceeds of such sale and the proceeds of any insurance carried by the Association shall be divided proportionately among the Owners, such proportions to be determined in accordance with the relative appraised fair market valuation of the Condominiums as of a date immediately before such destruction (or condemnation), expressed as percentages, and computed by dividing such appraised valuation of each Condominium by the total of such appraised valuations of all Condominiums in the Community. The Board is authorized to hire one (1) or more appraisers for such purpose and the cost of such appraisals shall be a Common Expense of the Association. However, the balance then due on any valid Mortgage shall be first paid in order of priority before the distribution of any proceeds to an Owner whose Condominium is so encumbered. Nothing in this Declaration prevents partition of a co-tenancy in any Condominium. Except as provided above, each Owner and the successors of each Owner, whether by deed, gift, devise, or by operation of law, for their own benefit and for the Condominiums and for the benefit of all other Owners, specifically waive and abandon all rights, interests and causes of action for a judicial partition of the tenancy in common ownership of the Community and do further covenant that no action for such judicial partition shall be instituted, prosecuted or reduced to judgment. 9.3 INTERIOR DAMAGE. Except for any casualty or damage covered by insurance kept by the Association, restoration and repair of any damage to the interior of any individual Residence, including all fixtures, cabinets and improvements therein, together with restoration and repair of all interior paint, wall coverings and floor coverings, must be made by and at the individual expense of the Owner of the Residence so damaged. If a determination to rebuild the Community after partial or total destruction is made, as provided in this Article, such interior repair and restoration shall be completed as promptly as practical and in a lawful and workmanlike manner, in accordance with plans approved by the Design Review Committee as provided in this Declaration. 9.4 NOTICE TO OWNERS AND FIRST MORTGAGEES. The Board, immediately on having knowledge of any damage or destruction affecting a material portion of - 67 - 5194-42305\SLT326\ 671527.4 5/9/07 o the Association Property owned in fee simple by the Association, shall promptly notify all Owners and First Mortgagees. ARTICLE 10 EMINENT DOMAIN The term "taking" as used in this Article means inverse condemnation by exercise of the power of eminent domain or by sale under threat of the exercise of the power of eminent domain. The Board shall represent the Owners in any proceedings, negotiations, settlements, or agreements regarding takings. All takings proceeds shall be payable to the Association for the benefit of the Owners and their Mortgagees, and shall be distributed to such Owners and Mortgagees as provided in this Article. 10.1 PROPERTY CONDEMNATION. If (a) there is a taking of an interest in all or part of the Community such that the ownership, operation and use of the Community in accordance with this Declaration is substantially and adversely affected, and (b) within one hundred twenty (120) days after the effective date of the taking the Owners of Units (l)not taken, or (2) only partially taken but capable of being restored to at least ninety-five percent (95%) of their floor area and to substantially their condition before the taking (collectively, the "Remaining Units") do not by affirmative vote of at least one third (1/3) of their voting power approve the continuation of the Community and the repair, restoration and replacement to the extent feasible of the Association Property and the Remaining Units, then the Board shall proceed with the sale of that portion of the Community which was not taken and distribute the net proceeds of such sale after deducting any incidental fees and expenses, in the same proportion and manner as provided in Section 9.2. 10.2 CONDEMNATION OF COMMON PROPERTY. If there is a taking of (a) the Common Area or any interest therein (other than the taking of an undivided interest therein taken as a result of the taking of a Condominium), or (b) the Association Property (other than Exclusive Use Area) or any interest therein, then the award in condemnation shall be paid to the Association and shall be deposited in the Operating Fund. 10.3 CONDEMNATION OF EXCLUSIVE USE AREA. If there is a taking of all or any portion of an Exclusive Use Area, the award in condemnation shall be paid to the Owner of the Condominium to which the taken Exclusive Use Area was appurtenant; however, such award shall first be applied to the balance then due on any Mortgages encumbering such Owner's Condominium, in order of priority. 10.4 CONDEMNATION OF CONDOMINIUMS. If there is a taking of a Condominium, the award in condemnation shall be paid to the Owner of the Condominium; however, such award shall first be applied to the balance then due on any Mortgages encumbering such Owner's Condominium, in order of priority. 10.5 CONDEMNATION OF PORTIONS OF UNITS. 10.5.1 Minor Takings Within Limits. If (a) there is a taking of a portion of one or more Units such that the intended use of the Units as residential dwellings is not substantially and adversely affected, and (b) restoration of such Units can be accomplished at a - 68 - 5194-42305\SLT326\ 671527.4 5/9/07 cost less than or equal to the sum of (1) the amount of the condemnation awards for such takings plus (2) any amounts the Owners of the taken Units wish to contribute to restoration plus (3) an amount less than or equal to five percent (5%) of the Budgeted gross expenses of the Association for that Fiscal Year (collectively, the "Allowable Cosf"), then the Board shall contract for such restoration and levy a Reconstruction Assessment in an amount equal to the Allowable Cost minus the amount of the condemnation awards and Owners' contributions, and the condemnation awards, Owners' contributions and Reconstruction Assessment shall be applied to such restoration. If the restoration is accomplished at a cost less than the amount of the condemnation awards, then that portion of the condemnation awards which exceeds the restoration costs shall be paid to the Owners of the partially taken Units in proportion to the decreases in the fair market values of their Condominiums; however, such awards shall first be applied to the balance then due on any Mortgages encumbering such Owners' Condominiums, in order of priority. 10.5.2 Minor Takings Exceeding Limits. If (a) there is a taking of a portion of one or more Units such that the intended use of the Units as residential dwellings is not substantially and adversely affected, and (b) restoration cannot be accomplished at a cost less than or equal to the Allowable Cost, then the Board shall call a Special Meeting of the Owners. If more than fifty percent (50%) of the voting power of the Association is represented at such Special Meeting, either in person or by proxy, and a majority of the votes cast at such Special Meeting are in favor of levying a Reconstruction Assessment in an amount equal to the restoration costs minus the sum of the amount of the condemnation awards and the amounts the Owners of the taken Units wish to contribute to such restoration, then the Board shall contract for such restoration and levy a Reconstruction Assessment, and the condemnation awards, Owners' contributions and Reconstruction Assessment shall be applied to such restoration. 10.5.3 Major Takings. If neither Section 10.1 nor Section 10.5.2 applies to the taking of a Unit, then the award in condemnation shall be paid to the Owners of the taken Units; however, such award shall first be applied to the balance then due on any Mortgages encumbering such Owner's Condominium, in order of priority. The Board shall have the remaining portions of the taken Units razed. The remaining portions of the taken Units and appurtenant Exclusive Use Areas shall become part of the Association Property, and the Owners of such taken Units in any Phase, by acceptance of the award allotted to them in taking proceedings, relinquish (a) to the other Owners in such Phase, on the basis of their relative ownership of the Common Area therein, such Owners' undivided interest in the Common Area, and (b) to the Association, the remaining portions of the Units and the appurtenant Exclusive Use Areas. Each Owner relinquishing the Owner's interest in the Common Area pursuant to this Section shall, at the Board's request and at the Association's expense, execute and acknowledge such deeds and other instruments which the Board considers necessary or convenient to evidence such relinquishment. Each Owner of a taken Unit or Residence is not liable for Assessments under this Declaration which accrue on or after the date such Owner accepts the Owner's condemnation award. 10.6 PORTIONS OF AWARDS IN CONDEMNATION NOT COMPENSATORY FOR VALUE OF REAL PROPERTY. Those portions of awards in condemnation which do not directly compensate Owners for takings of real property (for example, awards for takings of personal property, relocation expenses, moving expenses, or other allowances of a similar nature - 69 - 5194-42305\SLT326\ 671527.4 5/9/07 J intended to facilitate relocation) shall be paid to the Owners whose personal property is taken, or whose relocation is intended to be facilitated. 10.7 NOTICE TO OWNERS AND FIRST MORTGAGEES. The Board, on learning of any taking affecting a Unit or a material portion of the Community, or any threat thereof, shall promptly notify all Owners and First Mortgagees. ARTICLE 11 RIGHTS OF MORTGAGEES 11.1 GENERAL PROTECTIONS. No amendment or violation of this Declaration defeats or renders invalid the rights of the Mortgagee under any Mortgage encumbering one (1) or more Condominiums made in good faith and for value, provided that after the foreclosure of any such Mortgage the foreclosed Condominium(s) will remain subject to this Declaration. 11.2 ADDITIONAL RIGHTS. To induce the VA, FHA, Freddie Mac, Ginnie Mae and Fannie Mae to participate in the financing of the sale of Condominiums, the following provisions are added hereto (and to the extent these added provisions conflict with any other provisions of the Governing Documents, these added provisions control): 11.2.1 Right of First Refusal. Each Owner who obtains title to a Condominium (including a First Mortgagee who obtains title to a Condominium pursuant to (a) the remedies provided in the First Mortgage, (b) foreclosure of the First Mortgage, or (c) deed or assignment in lieu of foreclosure), is exempt from any "right of first refusal" created or purported to be created by the Governing Documents. 11.2.2 Required Mortgagee Approvals. A Mortgagee Majority must approve any amendment of any of the Governing Documents which is of a material adverse nature to First Mortgagees, as further set forth in Section 13.2.2 below. 11.2.3 Deemed Approval. Each First Mortgagee who receives proper written notices from the Association by certified or registered mail with a return receipt requested of any matter requiring the approval of a Mortgagee Majority is deemed to have approved that matter if that First Mortgagee does not submit a written response within sixty (60) days after the notice is delivered to the First Mortgagee. 11.2.4 Notices. Each Mortgagee, insurer and guarantor of a Mortgage encumbering one (1) or more Condominiums, upon filing a written request for notification with the Board, is entitled to written notification from the Association of: (a) any condemnation or casualty loss which affects either a material portion of the Community or the Condominium(s) securing the respective First Mortgage; (b) any delinquency of sixty (60) days or more in the performance of any obligation under the Governing Documents, including the payment of Assessments or charges owed by the Owner(s) of the Condominium(s) securing the Mortgage, which notice each Owner hereby consents to and authorizes; (c) a lapse, cancellation, or material modification of any policy of insurance or fidelity bond kept by the Association; and (d) any proposed action that requires the consent of a specified percentage of First Mortgagees. -70- 5194-42305\SLT326\ 671527.4 5/9/07 11.2.5 First Mortgagees Rights Confirmed. No provision of this Declaration, any Notice of Addition or Neighborhood Supplemental Declaration gives any Owner or any other party priority over any rights of a First Mortgagee pursuant to its Mortgage concerning payment to the Owner of insurance proceeds or condemnation awards for losses to or taking of a Condominium or any portion of the Association Property. 11.2.6 Unpaid Assessments. If the First Mortgagee of a Condominium obtains fee title to the Condominium either by foreclosure or by any other remedy provided under the Mortgage, then the Mortgagee shall take title to the Condominium free and clear of any claims for more than six (6) unpaid Assessments or any charges against the Condominium to the extent the Assessments or charges accrued before the date on which the Mortgagee acquired title to the Condominium. ARTICLE 12 ENFORCEMENT AND DISPUTE RESOLUTION 12.1 ENFORCEMENT OF GOVERNING DOCUMENTS. All violations of the Governing Documents, except for: (a) those governed by Sections 12.2 or 12.3, or (b) those subject to the Right to Repair Law (and accordingly subject to resolution through Declarant's nonadversarial contractual provisions and alternative dispute resolution provisions commencing at Section 12.4 below), or California Civil Code Section 1375, et seq. (the "Calderon Act"), shall be resolved as follows: 12.1.1 Right to Enforce. The Board, the Association, the Declarant and any Owner may enforce the Governing Documents as described in this Article, subject to California Civil Code Sections 1363.810, et seq., and 1369.510, et seq. Each Owner has a right of action against the Association for the Association's failure to comply with the Governing Documents. Each remedy provided for in this Declaration is cumulative and not exclusive or exhaustive. The City shall have the right, but not the obligation, to enforce any provision of this Declaration. 12.1.2 Violations Identified by the Association. If the Board or the Design Review Committee determines that there is a violation of the Governing Documents, other than nonpayment of any Assessment, then the Board shall give written notice to the responsible Owner identifying (a) the condition or violation complained of, and (b) the length of time the Owner has to remedy the violation including, if appropriate, the length of time the Owner has to submit plans to the Design Review Committee and the length of time the Owner has to complete the work proposed in the plans submitted to the Committee. This requirement shall apply notwithstanding the fact that this Declaration may duplicate City ordinances or regulations. If an Owner does not perform corrective action within the allotted time, the Board, after Notice and Hearing, may remedy such condition or violation complained of, and the cost thereof shall be charged to the Owner as a Special Assessment. If the violation involves nonpayment of any Assessment, then the Board may collect such delinquent Assessment pursuant to the procedures established in Section 12.2. 12.1.3 Violations Identified by an Owner. If an Owner alleges that another Person is violating the Governing Documents (other than nonpayment of any Assessment), the complaining Owner must first submit the matter to the Board for Notice and Hearing before the -71- 5194-42305\SLT326\ 671527.4 5/9/07 c complaining Owner may resort to alternative dispute resolution, as required by California Civil Code Section 1369.510, et seq., or litigation for relief. 12.1.4 Legal Proceedings. Failure to comply with any of the terms of the Governing Documents by any Person is grounds for relief which may include an action to recover damages, injunctive relief, foreclosure of any lien, or any combination thereof; however, the procedures established in California Civil Code Sections 1363.810, et seq., and 1369.510 et seq. and in Sections 12.1.2 and 12.1.3 must first be followed, if they apply. 12.1.5 Additional Remedies. After Notice and Hearing, the Board may impose any of the remedies provided for in the Bylaws. The Board may adopt a schedule of reasonable fines or penalties which, in its reasonable discretion, the Board may assess against a Person for the failure of such Person to comply with the Governing Documents. Such fines or penalties may only be assessed pursuant to California Civil Code Section 1363. After Notice and Hearing, the Board may direct the officers of the Association to Record a notice of noncompliance (if allowed by law) against a Condominium owned by any Owner who has violated any provision of this Declaration. The notice shall include a legal description of the Condominium and shall specify the provision of this Declaration that was violated, the violation committed, and the steps required to remedy the noncompliance. Once the noncompliance is remedied or the non-complying Owner has taken such other steps as reasonably required by the Board, the Board shall direct the officers of the Association to Record a notice that the noncompliance has been remedied. 12.1.6 No Waiver. Failure to enforce any provision of this Declaration does not waive the right to enforce that provision, or any other provision of this Declaration. 12.1.7 Limit on Expenditures. The Association may not incur litigation expenses, including attorneys' fees, or borrow money to fund litigation, where the Association initiates legal proceedings or is joined as a plaintiff in legal proceedings, unless the Association first obtains the consent of a majority of the total voting power of the Association (excluding the voting power of any Owner who would be a defendant in such proceedings) and, if applicable, complies with the requirements of California Civil Code Sections 1363.810, et seq., and 1369.510, et seq. Such approval is not necessary if the legal proceedings are initiated (a) to enforce the use restrictions contained in Article 2, (b) to enforce the architectural and landscaping control provisions contained in Article 5, (c) to collect any unpaid Assessments levied pursuant to the Governing Documents, (d) for a claim, other than a Right to Repair Law Claim, or a Dispute (defined in Section 12.4) the total value of which is less than Five Hundred Thousand Dollars ($500,000), or (e) as a cross-complaint in litigation to which the Association is already a party. If the Association decides to use or transfer Reserve Funds or borrow funds to pay for any litigation, the Association must notify the Owners of the decision by mail. 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 or the loan will be repaid, and a proposed budget for the litigation. The notice must state that the Owners have a right to review an accounting for the litigation which will be available at the Association's office. The accounting shall be updated monthly. If the Association action to incur litigation expenses or borrow money to fund litigation concerns a Right to Repair Law Claim, then the voting requirements of both Sections 4.5.2 and 12.1.7 must be met. -72- 5194-42305\SLT326\ 671527.4 5/9/07 12.1.8 General enforcement bv the Citv. The City basshall have the right, but not the obligation, to enforce any of the provisions of tkethis Declaration^—tf- in favor of. or in which the Citv has an interest. In the event that the Association fails to maintain the Association Property as provided kerekbin Article 2. Section 2.1. the City basshall have the right, but not the duty, to perform the necessary maintenance. If the City elects to perform such maintenance, the City shall give written notice to the Association, with a copy thereof to the Owners in the Community, setting forth with particularity the maintenance which the City finds to be required and requesting the same be carried out by the Association within a period of thirty (30) days from the giving of such notice, ffln the event the Association fails to carry out such maintenance of the Association Property within such thirty (30) davthe period specified in the Citv notice, the City shall be entitled to cause such work to be completed and shall be entitled to reimbursement from the Owners as follows:with respect thereto from the Owners as provided herein. In the event the City has performed the necessary maintenance to Association Property, the City shall submit a written invoice to the Association for all costs incurred bv the Citv to perform such maintenance of the Association Property. The City shall provide a copy of such invoice to each Owner in the Community, together with a statement that if the Association fails to pav such invoice in full within the time specified, the Citv will pursue collection against the Owners in the Community pursuant to the provisions of this Section. Said invoice shall be due and payable bv the Association within twenty (20) days of receipt bv the Association. If the 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 Citv mav pursue collection from the Association bv means of any remedies available at law or in equity. Without limiting the generality of the foregoing, the Citv mav levy a special assessment against the Owners of each Unit in the Community for an equal prorate share of the invoice, plus the late charge. Such special assessment shall constitute a charge on the land and shall be a continuing lien upon each Unit against which the special assessment is levied. Each Owner in the Community hereby vests the City with the right and power to lew such special assessment, to impose a lien upon their respective Unit and to bring all legal actions and/or to pursue lien foreclosure procedures against any Owner and his/her respective Unit for purposes of collecting such special assessment, in accordance with Section 12.2 of this Declaration. (a) City Invoice. If the City has performed the necef5sary maintenance to Association Property, the City shall submit a written invoice to the Association for all costs incurred by the City to perform such maintenance. The City shall provide a copy of such invoice to each Owner in the Community, together with a statement that if the Association fails to pay such invoice within the time specified, the City will pursue collection against the Owners pursuant to the provisions of this Section. The invoice shall be due and payable by the Association within twenty (20) days of receipt by the Association. (¥) Late Charge. If the Association fails to pay such invoice in full within the period specified above, 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 City may pursue collection from the Association by means of any remedies available at law or in -73- 5194-42305\SLT326\ 671527.4 5/9/07 (e) Special Assessments Levied by City.—In addition to all other rights and remedies available to the City, the City may levy a special assessment against the Owners of each Unit in the Community for an equal prorate share of the invoice, plus any late charges. Such special assessment shall constitute a charge on the land and shall be a continuing lien upon each Unit against which the special assessment is levied.—Each Owner in the Community by accepting a deed to a Unit vests the City with the right and power to levy such special assessment, to impose a lien upon such Owner's Unit and to bring all legal actions and/or to pursue lien foreclosure procedures against the Owner and the Owner's Unit for purposes of collecting such special assessment, in accordance with applicable law. 12.2 DELINQUENT ASSESSMENTS. 12.2.1 Delinquency. Assessments are delinquent if not paid within fifteen (15) days after the due date established by the Association. Assessments not paid within thirty (30) days after the due date, plus all reasonable costs of collection (including attorneys' fees) and late charges bear interest at the maximum rate permitted by law commencing thirty (30) days after the due date until paid. The Association may also require the delinquent Owner to pay a late charge in accordance with California Civil Code Section 1366(e)(2). The Association need not accept any tender of a partial payment of an Assessment and all costs and attorneys' fees attributable thereto. Acceptance of any such tender does not waive the Association's right to demand and receive full payment. 12.2.2 Creation and Release of Lien. (a) Priority of Lien. All liens levied in accordance with this Declaration shall be prior and superior to (1) any declaration of homestead Recorded after the Recordation of this Declaration, and (2) all other liens, except (A) all taxes, bonds, Assessments and other levies which, by law, would be superior thereto, and (B) the lien or charge of any First Mortgage made in good faith and for value and Recorded before the date on which the "Notice of Delinquent Assessment" (described in this Section) against the assessed Condominium was Recorded. (b) Notice Before Creating Lien. Before the Association may place a lien on an Owner's Condominium to collect a past due Assessment, the Association shall send written notice ("Notice of Intent to Lien"), at least thirty (30) days before Recording the lien, to the Owner by certified mail which contains the following information: (l)the Association's fee and penalty procedure, (2) an itemized statement of the charges owed by the Owner, including the principal owed, any late charges, any interest, the method of calculation, and any attorneys' fees, (3) the collection practices used by the Association, (4) a statement that the Association may recover reasonable costs of collecting past due Assessments, (5) a statement that the Owner has the right to inspect the Association's records, pursuant to California Corporations Code Section 8333, (6) the following statement in 14-point boldface type or all capital letters: "IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST IS PLACED IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE SOLD WITHOUT COURT ACTION," (7) a statement that the Owner shall not be liable to pay the charges, interest and costs of collection if it is determined the Assessment was paid on time to the Association, (8) a statement that the Owner has the right to request a meeting with the -74- 5194-42305\SLT326\671527.4 5/9/07 Board, as provided by California Civil Code Section 1367.l(c) and Section 12.2.2(g) below, (9) a statement concerning the Owner's right to dispute the Assessment debt by submitting a written request for dispute resolution to the Association pursuant to the Association's "meet and confer" program required in California Civil Code Section 1363.810, et seq., and (10) a statement concerning the Owner's right to request alternative dispute resolution with a neutral third party pursuant to California Civil Code Section 1369.510, et seq., before the Association may initiate foreclosure against the Owner's separate interest, except that binding arbitration shall not be available if the Association intends to initiate a judicial foreclosure. (c) Dispute Resolution Before Recording Lien. Before Recording a Notice of Delinquent Assessment, the Association shall offer the Owner and, if the Owner so requests, participate in dispute resolution under the Association's "meet and confer" program. (d) Dispute Resolution Before Foreclosure. Before initiating a foreclosure for delinquent Assessments, the Association shall offer the Owner and, if the Owner so requests, shall participate in dispute resolution under the Association's "meet and confer" or alternative dispute resolution with a neutral third party. The decision to pursue resolution or a particular type of alternative dispute resolution is the Owner's choice, except that binding arbitration is not available if the Association intends to initiate a judicial foreclosure. (e) Board Approval. For liens recorded on or after January 1, 2006, the decision to Record a Notice of Delinquent Assessment shall be made only by the Board and may not be delegated to an Association agent. The Board must approve the decision by a majority vote of the Board members in an open meeting. The Board shall record the vote in the minutes of that meeting. (f) Dispute by Owner. An Owner may dispute the Notice of Intent to Lien by submitting to the Board a written explanation of the reasons for the Owner's dispute. The Board shall respond in writing to the Owner within fifteen (15) days after the date of the postmark of the explanation, if the explanation is mailed within fifteen (15) days after the postmark of the Notice of Intent to Lien. (g) Owner's Right to Request Meeting. An Owner may submit a written request to meet with the Board to discuss a payment plan for the debt noticed in Section 12.2.2(b) above. The Association shall provide the Owner with the standards for payment plans, if any exist. The Board shall meet with the Owner in executive session within forty-five (45) days of the postmark of the request, if the request is mailed within fifteen (15) days after the date of the postmark of the Notice of Intent to Lien, unless there is no regularly scheduled Board meeting within that period, in which case the Board may designate a committee of one or more members to meet with the Owner. (h) Notice of Delinquent Assessment. The lien becomes effective on Recordation by the Board or its authorized agent of a Notice of Delinquent Assessment ("Notice of Delinquent Assessment") securing the payment of any Assessment or installment thereof levied by the Association against any Condominium Owner, as provided in California Civil Code Section 1367 or 1367.1. The Notice of Delinquent Assessment must identify (1) the amount of the Assessment and other authorized charges and interest, including the cost of - 75 - 5194-42305\SLT326\ 671527.4 5/9/07 o preparing and Recording the Notice of Delinquent Assessment, (2) the amount of collection costs incurred, including reasonable attorneys' fees, (3) a sufficient description of the Condominium that has been assessed, (4) the Association's name and address, (5) the name of the Owner of the Condominium that has been assessed, and (6) if the lien is to be enforced by non-judicial foreclosure, the name and address of the trustee authorized by the Association to enforce the lien by sale. The Notice of Delinquent Assessment must be signed by an authorized Association officer or agent and must be mailed in the manner required by California Civil Code Section 2924b to the Owner of record of the Condominium no later than ten (10) calendar days after Recordation. The lien relates only to the individual Condominium against which the Assessment was levied and not to the Community as a whole. (i) Service on Owner's Legal Representative. In addition to the requirements of California Civil Code Section 2924, a Notice of Delinquent Assessment shall be served by the Association on the Owner's legal representative as provided in California Code of Civil Procedure Section 415.10 et seq. (j) Secondary Addresses. Upon receipt of an Owner's written request identifying a secondary address for purposes of collection notices, the Association shall send an additional copy of any Notice of Intent to Lien, Notice of Delinquent Assessment or other Notice given under Section 12.2.2 to the secondary address provided. The Association shall notify Owners of their right to submit secondary addresses to the Association, when the Association issues its pro forma operating budget under California Civil Code Section 1365. The Owner's request must be in writing and mailed to the Association in a manner which indicates the Association has received it. The Owner may identify or change a secondary address at any time, provided that, if a secondary address is identified or changed during the collection process, the Association shall only be required to send Notices to the indicated secondary address from the point the Association receives the request. (k) Exceptions. Assessments described in California Civil Code Section 1367(c) and California Code of Regulations Section 2792.26(c) may not become a lien against an Owner's Condominium enforceable by the sale of the Condominium under California Civil Code Sections 2924, 2924b and 2924c. (1) Release of Lien. Within twenty-one (21) days after payment of the full amount claimed in the Notice of Delinquent Assessment, or other satisfaction thereof, the Board shall cause to be Recorded a Notice of Satisfaction and Release of Lien ("Notice of Release") stating the satisfaction and release of the amount claimed. The Association shall provide the Owner with a copy of the Notice of Release or any other notice that the full amount claimed in the Notice of Delinquent Assessment has been satisfied. The Board may require the Owner to pay a reasonable charge for preparing and Recording the Notice of Release. Any purchaser or encumbrancer who has acted in good faith and extended value may rely on the Notice of Release as conclusive evidence of the full satisfaction of the sums identified as owed in the Notice of Delinquent Assessment. 12.2.3 Enforcement of Liens. The Board shall enforce the collection of amounts due under this Declaration by one (1) or more of the alternative means of relief afforded by this Declaration, subject to the restrictions in California Civil Code Section 1367.4. - 76 - 5194-42305\SLT326\671527.4 5/9/07 (a) The lien on a Condominium may be enforced by foreclosure and sale of the Condominium after the Owners failure to pay any Assessment, or installment thereof, as provided in this Declaration. (b) The decision to initiate foreclosure after Recording a Notice of Delinquent Assessment shall be made only by the Board and may not be delegated to an Association agent. The Board shall approve the decision by a majority vote of the Board members in an executive session. The Board shall record the vote in the minutes of the next Board meeting open to all members. The Board shall maintain the confidentiality of the Owner or Owners by identifying the matter in the minutes by the Unit number, rather than the name of the Owner or Owners. A Board vote to approve foreclosure of a lien shall take place at least thirty (30) days before any public sale. (c) The Board shall provide notice by personal service to an Owner who occupies the Unit or to the Owner's legal representative, if the Board votes to foreclose on the Unit. The Board shall provide written notice to an Owner who does not occupy the Unit by first-class mail, postage prepaid, at the most current address shown on the Association's books. Unless the Owner provides written notification of a different mailing address to the Association, the address of the Owner's Unit may be treated as the Owner's mailing address. (d) The sale shall be conducted in accordance with the provisions of the California Civil Code applicable to the exercise of powers of sale in Mortgages, or in any manner permitted by law. The Association (or any Owner if the Association refuses to act) may sue to foreclose the lien if (1) at least thirty (30) days have elapsed since the date on which the Notice of Delinquent Assessment was Recorded, and (2) at least ten (10) days have elapsed since a copy of the Notice of Delinquent Assessment was mailed to the Owner affected thereby. The Association may bid on the Condominium at foreclosure sale, and acquire and hold, lease, mortgage and convey the same. On completion of the foreclosure sale, the Association or the purchaser at the sale may file suit to secure occupancy of the defaulting Owner's Condominium, and the defaulting Owner shall be required to pay the reasonable rental value for the Condominium during any period of continued occupancy by the defaulting Owner or any persons claiming under the defaulting Owner. A nonjudicial foreclosure to collect delinquent Assessments shall be subject to the right of redemption within 90 days after the sale, as provided in California Civil Code Section 1367.4. (e) A suit to recover a money judgment for unpaid Assessments may be brought without foreclosing or waiving any lien securing the same, subject to the provisions of California Civil Code Section 1367.1(b), but this provision or any suit to recover a money judgment does not affirm the adequacy of money damages. Any recovery resulting from a suit at law or in equity initiated pursuant to this Section may include reasonable attorneys' fees as fixed by the court. 12.2.4 Priority of Assessment Lien. Mortgages Recorded before a Notice of Delinquent Assessment have lien priority over the Notice of Delinquent Assessment. Sale or transfer of any Condominium does not affect the Assessment lien, except that the sale or transfer of any Condominium pursuant to judicial or non-judicial foreclosure of a First Mortgage extinguishes the lien of such Assessments as to payments which became due before such sale or - 77 - 5194-42305\SLT326\ 671527.4 5/9/07 o transfer. No sale or transfer relieves such Condominium from liens for any Assessments thereafter becoming due. No Person who obtains title to a Condominium pursuant to a judicial or non-judicial foreclosure of the First Mortgage is liable for the share of the Common Expenses or Assessments chargeable to such Condominium which became due before the acquisition of title to the Condominium by such Person. Such unpaid share of Common Expenses or Assessments is a Common Expense collectible from all Owners including such Person. The Association may take such action as is necessary to make any Assessment lien subordinate to the interests of the California Department of Veterans Affairs under its Cal-Vet loan contracts as if the Cal-Vet loan contracts were First Mortgages. 12.2.5 Alternative Dispute Resolution. An Owner may dispute the Assessments imposed by the Association as provided in this Declaration and in California Civil Code Sections 1367.1 and 1367.4. If it is determined through dispute resolution pursuant to the Association's "meet and confer" program required in this Declaration or alternative dispute resolution with a neutral third party pursuant to California Civil Code Section 1369.510 et seq. that the Association Recorded a Notice of Delinquent Assessment in error, the Association shall promptly reverse all late charges, fees, interest, attorney's fees, costs of collection, costs imposed for the Notice prescribed in Section 1367.1 (a), and costs of Recordation and release of the lien authorized under Section 1367.4(b) and pay all costs related to the dispute resolution or alternative dispute resolution. 12.2.6 Receivers. In addition to the foreclosure and other remedies granted to the Association in this Declaration, each Owner, by acceptance of a deed to such Owner's Condominium, conveys to the Association all of such Owner's right, title and interest in all rents, issues and profits derived from and appurtenant to such Condominium, subject to the right of the Association to collect and apply such rents, issues and profits to any delinquent Assessments owed by such Owner, reserving to the Owner the right, before any default by the Owner in the payment of Assessments, to collect and retain such rents, issues and profits as they may become due and payable. On any such default, the Association may, on the expiration of thirty (30) days following delivery to the Owner of the "Notice of Delinquent Assessment" described in this Declaration, either in person, by agent or by receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness secured by the lien described in this Declaration, (a) enter in or on and take possession of the Condominium or any part thereof, (b) in the Association's name sue for or otherwise collect such rents, issues and profits, including those past due and unpaid, and (c) apply the same, less allowable expenses of operation, to any delinquencies of the Owner, and in such order as the Association may determine. The entering upon and taking possession of the Condominium, the collection of rents, issues and profits and the application thereof, shall not cure or waive any default or notice of default under this Declaration or invalidate any act done pursuant to such notice. 12.2.7 Compliance with Law. To the extent that any provision in this Section 12.2 conflicts with the provisions of the Davis-Stirling Act (California Civil Code Section 1350, et seq.) the statutory provisions shall control. 12.3 ENFORCEMENT OF BONDED OBLIGATIONS. If (a) the Common Property Improvements in any Phase are not completed before the DRE issues a Public Report, and (b) the Association is an obligee under a bond or other arrangement (a "Bond") required by - 78 - 5194-42305\SLT326\ 671527.4 5/9/07 o the DRE to secure performance of Declarant's commitment to complete such Improvements, then the following provisions of this Section will apply: 12.3.1 Consideration by the Board. The Board shall consider and vote on the question of action by the Association to enforce the obligations under the Bond concerning any such Improvement for which a Notice of Completion has not been filed within sixty (60) days after the completion date specified for that Improvement in the Planned Construction Statement appended to the Bond. If the Association has given an extension in writing for the completion of any Common Property Improvement, then the Board shall be directed to consider and vote on the aforesaid question if a Notice of Completion has not been filed within thirty (30) days after the end of the extension. 12.3.2 Consideration by the Owners. A special meeting of Owners for the purpose of voting to override a decision by the Board not to initiate action to enforce the obligations under the Bond or on the Board's failure to consider and vote on the question shall be held no fewer than thirty-five (35) nor more than forty-five (45) days after the Board receives a petition for such a meeting signed by Owners representing five percent (5%) of the Association's total voting power. A vote of a majority of the Association's voting power (excluding Declarant) to take action to enforce the obligations under the Bond shall be deemed to be the decision of the Association, and the Board shall thereafter implement such decision by initiating and pursuing appropriate action in the Association's name. 12.4 DISPUTES WITH DECLARANT PARTIES. The following dispute resolution procedure is implemented for the Community with the intent to avoid costly and potentially lengthy traditional court proceedings. Any dispute between the Association or any Owners, on the one hand, and the Declarant, or any director, officer, partner, shareholder, member, employee, representative, contractor, subcontractor, design professional or agent of the Declarant (each, a "Declarant Party," and collectively the "Declarant Parties"), on the other hand, is a "Dispute" that shall be resolved in accordance with the following alternative dispute resolution procedures, if the Dispute: (a) Arises under this Declaration or otherwise relates to the Community including Right to Repair Law Claims; and (b) Involves neither Association Property completion bonds, nor the collection of delinquent Assessments from Declarant; and (c) Does not involve an amount in controversy that is subject to the Small Claims Act (California Civil Procedure Sections 116.110, et seq.) and (d) Concerns matters that are not resolved under the written limited warranty provided by Declarant, shall be a "Dispute" for purposes of this Section 12.4. In addition, Owners and the Association are advised that Sections 12.4.1, 12.4.2 and 12.4.3 below are Declarant's alternative contractual non-adversarial procedures for the resolution of Disputes concerning matters governed by the Right to Repair Law. These procedures are different from and replace the "Prelitigation -79- 5194-42305\SLT326\ 671527.4 5/9/07 o o Procedure" described in Chapter 4 of the Right to Repair Law. All Disputes shall be resolved in accordance with the following alternative dispute resolution procedures: 12.4.1 Notice. Any Person with a Dispute shall give written notice of the Dispute by personal or mail service as authorized by California Code of Civil Procedure Sections 415.10, 415.20, 415.21, 415.30 or 415.40 to the party to whom the Dispute is directed ("Respondent") describing the nature of the Dispute and any proposed remedy (the "Dispute Notice"). 12.4.2 Right to Inspect and Correct. Commencing on the date the Dispute Notice is delivered to the Respondent and continuing until the Dispute is resolved, the Respondent and its representatives have the right to (a) meet with the party alleging the Dispute at a reasonable time and place to discuss the Dispute, (b) enter the Community to inspect any areas that are subject to the Dispute, and (c) conduct inspections and testing (including destructive or invasive testing) in a manner deemed appropriate by the Respondent. If Respondent elects to take any corrective action, Respondent and its representatives shall be provided full access to the Community to take and complete the corrective action. Respondent is not obligated to take any corrective action. Respondent, with the consent of Declarant, has the right to select the corrective action Respondent believes is appropriate. The right to inspect and correct granted in this Section is in addition to the rights granted in the Calderon Act. The procedures established in the Calderon Act may be implemented before, during or after the procedure in this Section is implemented. 12.4.3 Mediation. If the Dispute is not resolved within ninety (90) days after the Respondent receives the Dispute Notice, any party may submit the Dispute to mediation by delivering a request for mediation (a "Mediation Notice") in the same manner as allowed for delivery of the Dispute Notice. The Dispute shall be mediated pursuant to (a) the Judicial Arbitration and Mediation Service ("JAMS") mediation procedures in existence when the Dispute Notice is delivered, as modified by this Section, or (b) the mediation procedures of any successor to JAMS in existence when the Dispute Notice is delivered, as modified by this Section, or (c) mediation procedures approved by the parties of any entity offering mediation services that are acceptable to the parties to the Dispute (each, a "Party" and collectively, the "Parties"). Except as provided in Section 12.4.5, no Person shall begin litigation regarding a Dispute without complying with this Section 12.4.3. (a) Selection of Mediator. The mediator shall be selected within sixty (60) days after delivery of the Mediation Notice. The mediator shall be selected by mutual agreement of the Parties. If the Parties cannot agree on a mediator, the mediator shall be selected by the entity providing the mediation service. No Person shall serve as a mediator in any Dispute in which the Person has any financial or personal interest in the result of the mediation, except by the written consent of all Parties. Before 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. (b) Position Letter; Pre-Mediation Conference. No later than sixty (60) days after selection of the mediator, each party to the Dispute shall submit a letter (a "Position Statement") containing (1) a description of the Party's position concerning the issues - 80 - 5194-42305\SLT326\ 671527.4 5/9/07 that need to be resolved, (2) a detailed description of the defects allegedly at issue, and (3) a suggested plan of repair, remediation or correction. The mediator may schedule a pre-mediation conference. All Parties shall attend unless otherwise mutually agreed. The mediation shall be commenced within twenty (20) days after submittal of all Position Statements and shall be concluded within fifteen (15) days after the mediation began unless either (A) the mediator extends the mediation period, or (B) the Parties mutually agree to extend the mediation period. The mediation shall be held in the County or another place mutually acceptable to the parties. (c) Conduct of Mediation. The mediator has discretion to conduct the mediation in the manner in which the mediator believes is most appropriate to achieve the goal of settling the Dispute. The mediator is authorized to conduct joint and separate meetings with the Parties and to make oral and written recommendations for settlement. The mediator may also obtain expert advice concerning technical aspects of the Dispute, provided the Parties agree to and do assume the expenses of obtaining such advice. The mediator shall not have the authority to impose a settlement on the Parties. (d) Application of Evidence Code. The provisions of California Evidence Code Sections 1115 through 1128 shall be applicable to the mediation process. Use and disclosure of statements, evidence and communications offered or made in the course of the mediation shall be governed by these sections, including the sections which preclude use of material in future proceedings and the sections which provide for confidentiality of material. (e) Parties Permitted at Mediation. Persons other than the Parties, their liability insurers, Declarant, attorneys for the Parties and the mediator may attend mediation sessions only with the permission of the Parties and the consent of the mediator. Declarant has the right to attend the mediation session even if Declarant is not one of the Parties. (f) Record. There shall be no stenographic, video or audio record of the mediation process. (g) Expenses. Each Party shall bear its own attorneys' fees and costs incurred in connection with the mediation. All other expenses of the mediation including the fees charged by the mediator and the cost of any proof or expert advice requested by the mediator shall be borne equally by each of Declarant and the Declarant Parties to whom the Dispute is directed, unless the Parties agree otherwise. This provision does not modify any provision of a contract between Declarant and any Declarant Party requiring indemnification or establishing a different allocation of costs between the Declarant and the Declarant Party. 12.4.4 Judicial Reference. If a Dispute remains unresolved after the mediation required by Section 12.4.3 is completed then any of the Parties may file a lawsuit, provided that the Association must obtain the vote or written consent of Owners other than Declarant who represent not less than sixty-seven percent (67%) of the Association's voting power (excluding the voting power of Declarant) before filing a lawsuit in a Dispute with Declarant or a Declarant Party. All lawsuits regarding Disputes must be resolved by general judicial reference pursuant to California Code of Civil Procedure Sections 638 and 641 through 645.1, as modified by this Section 12.4.4. The Parties shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the judicial reference proceeding. No Party -81- 5194-42305\SLT326\ 671527.4 5/9/07 o shall be required to participate in the judicial reference proceeding if all Parties against whom such Party would have necessary or permissive cross-claims or counterclaims will not or cannot be joined in the judicial reference proceeding. The general referee shall have the authority to try all issues of fact and law and to report a statement of decision to the court. The referee shall be the only trier of fact and law in the reference proceeding, and shall have no authority to further refer any issues of fact or law to any other Person unless all parties to the judicial reference proceeding consent, or the referee determines that a conflict of interest or similar situation has arisen which would make it inappropriate for the referee to act as the trier of fact or law concerning an issue or matter. In the second alternative, an alternative judicial referee shall be selected in accordance with Section 12.4.4(b) solely for resolving or rendering a decision concerning the issue or matter involved in the conflict. (a) Place. The proceedings shall be heard in the County. (b) Referee. The referee shall be a retired judge who served on the California Superior Court in the County with substantial experience in the type of matter in dispute and without any relationship to the Parties or interest in the Community, unless the Parties agree otherwise. The parties to the judicial reference proceeding shall meet to select the referee no later than thirty (30) days after service of the initial complaint on all defendants named in the complaint. Any dispute regarding the selection of the referee shall be resolved by the court in which the complaint is filed. (c) Beginning and Timing of Proceeding. The referee shall begin the proceeding at the earliest convenient date and shall conduct the proceeding without undue delay. (d) Pre-hearing Conferences. The referee may require pre-hearing conferences. (e) Discovery. The parties to the judicial reference proceeding shall be entitled only to limited discovery, consisting of the exchange of the following: (1) witness lists, (2) expert witness designations, (3) expert witness reports, (4) Exhibits, (5) reports of testing or inspections, and (6) briefs. Any other discovery authorized in the California Code of Civil Procedure shall be permitted by the referee upon a showing of good cause or based on the consent of all parties to the judicial reference proceeding. (f) Motions. The referee shall have the power to hear and dispose of motions, including motions relating to discovery, provisional remedies, demurrers, motions to dismiss, motions for judgment on the pleadings and summary judgment and/or adjudication motions, in the same manner as a trial court judge. 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. (g) Record. A stenographic record of the hearing shall be made which shall remain confidential except as may be necessary for post-hearing motions and any appeals. -82- 5194-42305\SLT326\671527.4 5/9/07 (h) Statement of Decision. The referee's statement of decision shall contain an explanation of the factual and legal basis for the decision pursuant to California Code of Civil Procedure Section 632. The decision of the referee shall stand as the decision of the court, and upon filing of the 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. (i) Remedies. The referee may grant all legal and equitable remedies and award damages in the judicial reference proceeding. (j) Post-hearing Motions. The referee may rule on all post- hearing motions in the same manner as a trial judge. (k) 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. (1) Expenses. Each Party shall bear its own attorneys' fees and costs incurred in connection with the judicial reference proceeding. All other fees and costs incurred in connection with the judicial reference proceeding, including the cost of the stenographic record, shall be advanced equally by each of Declarant and the Declarant Parties to whom the Dispute is directed. However, the referee shall have the power to reallocate such fees and costs among the Parties in the referee's final ruling. This provision does not modify any provision of a contract between Declarant and any Declarant Party requiring indemnification or establishing a different allocation of costs between the Declarant and the Declarant Party. 12.4.5 Statutes of Limitation. Nothing in this Section 12.4 shall be considered to toll, stay, reduce or extend any applicable statute of limitations; provided, however, that Declarant, the Declarant Parties, the Association and any Owner may begin a legal action which in the good faith determination of that Person is necessary to preserve that Person's rights under any applicable statute of limitations as long as no further steps in processing the action are taken except those authorized in this Section 12.4. 12.4.6 Agreement to Dispute Resolution; Waivers of Jury Trial. DECLARANT, THE ASSOCIATION AND EACH OWNER AGREE TO USE THE PROCEDURES ESTABLISHED IN THIS SECTION 12.4 TO RESOLVE ALL DISPUTES AND WAIVE THEIR RIGHTS TO RESOLVE DISPUTES IN ANY OTHER MANNER. DECLARANT, THE ASSOCIATION AND EACH OWNER ACKNOWLEDGE THAT BY AGREEING TO RESOLVE ALL DISPUTES AS PROVIDED IN THIS SECTION 12.4, THEY ARE GIVING UP THEIR RIGHT TO HAVE DISPUTES TRIED BEFORE A JURY. THIS SECTION 12.4 MAY NOT BE AMENDED WITHOUT DECLARANT'S PRIOR WRITTEN CONSENT. 12.4.7 Covenant Regarding Proceeds. If the Association or any Owner prevail in a Dispute, and the judgment thereon or settlement terms thereof includes a monetary award, then the proceeds of the award shall be first applied to the remediation of the condition that gave rise to the Dispute. -83- 5194-42305\SLT326\ 671527.4 5/9/07 ARTICLE 13 DURATION AND AMENDMENT 13.1 DURATION. This Declaration shall continue in full force unless a declaration of termination satisfying the requirements of an amendment to this Declaration established in Section 13.2 is Recorded. 13.2 TERMINATION AND AMENDMENT. 13.2.1 Amendment Approval. Notice of the subject matter of a proposed amendment to this Declaration in reasonably detailed form must be included in the notice of any Association meeting or election at which a proposed amendment is to be considered. To be effective, a proposed amendment (other than an amendment by Declarant or by the Board, as described in Sections 13.2.6 or 13.2.7 respectively) must be (a) adopted by the vote, in person or by proxy, or written consent of Owners representing not less than (1) sixty-seven percent (67%) of the voting power of each Class of the Association and (2) sixty-seven percent (67%) of the Association's voting power represented by Owners other than Declarant, provided that the specified percentage of the Association's voting power necessary to amend a specific provision of this Declaration may not be less than the percentage of affirmative votes prescribed for action to be taken under the provision that is the subject of the proposed amendment, and (b) approved by a Mortgagee Majority as described in Section 13.2.2 when required. As long as Declarant has the right to appoint a majority of the members of the Board, and the VA or FHA is making or insuring a Mortgage in the Community, the prior approval of the VA or FHA (whichever is making or insuring a Mortgage) is required for any amendment to the Declaration for the purpose of terminating the Declaration, dissolving the Association (except pursuant to merger or consolidation) or conveying all of the Association Property. 13.2.2 Mortgagee Consent. In addition to the consents required by Section 13.2.1, a Mortgagee Majority must approve any amendment to this Declaration, any Notice of Addition and any Supplemental Declaration; which is of a material adverse nature to Eligible First Mortgagees, as follows: (a) Any amendment of the provisions of this Declaration governing any of the following: (1) Voting rights; (2) Increases in Assessments that raise the existing Assessment by more than 25%, Assessment liens or the priority of Assessment liens; (3) Reductions in reserves for maintenance, repair and replacement of the Community Common Property; (4) Responsibility for maintenance and repairs; (5) Reallocation of interest in the Common Property or rights to its use; -84- 5194-42305\SLT326\ 671527.4 5/9/07 (6) Redefinition of any Unit boundaries; (7) Convertibility of Units into Common Property or vice versa; (8) Expansion or contraction of the Community or the addition, annexation or deannexation of real property to or from the Community other than by Declarant under Sections 16.1 and 16.5 of this Declaration; (9) Hazard or fidelity insurance requirements; (10) Imposing restrictions on leasing of Units; (11) Imposing restrictions on a Unit Owner's right to sell or transfer that Owner's Unit; (12) If the Community includes at least fifty (50) Units, any decision by the Association to establish self management if professional management had been required previously by the Governing Documents or a First Mortgagee; (13) Restoration or repair of the Community (after damage or partial condemnation) in a manner other than that specified in this Declaration; or (14) Any provisions that expressly benefit Mortgagees. (b) Any amendment which affects or purports to affect the validity or priority of Mortgages or the rights or protection granted to Mortgagees, insurers or guarantors of First Mortgages. (c) Any amendment which would require a Mortgagee after it has acquired a Condominium through foreclosure to pay more than its proportionate share of any unpaid Assessment or Assessments accruing before such foreclosure. (d) Any amendment which would or could result in a Mortgage being canceled by forfeiture, or in a Condominium not being separately assessed for tax purposes. (e) Any amendment relating to (i) the insurance provisions in Article 8, (ii) the application of insurance proceeds in Article 9, or (iii) the disposition of any money received in any taking under condemnation proceedings. (f) Any amendment which would or could result in partition or subdivision of a Condominium in any manner inconsistent with this Declaration. (g) Any amendment which would subject any Owner to a right of first refusal or other such restriction, if such Condominium is proposed to be transferred. -85- 5194-42305\SLT326\671527.4 5/9/07 13.2.3 Amendment of Right to Repair Law Claims Provisions. Except for any amendment made by Declarant as authorized in Section 13.2.6, neither this Section 13.2.3 nor Sections 1.1.47, 1.1.76, 2.1.6, 3.23, 4.2.7, 4.5, 12.1.7, 12.4, 13.2.6, 13.2.7 or 15.7 may be amended without the prior written approval of Declarant until the expiration of all applicable statutes of limitation or repose for the filing of a complaint or suit or other legal remedies against Declarant or its affiliates under the Right to Repair Law (including tolling periods). 13.2.4 Termination Approval. Termination of this Declaration requires approval of (a) a Mortgagee Majority pursuant to Section 13.2.2, (b) the Owners as provided in Section 13.2.1, and (c) Declarant (until the expiration of all applicable statutes of limitation or repose for the filing of a complaint or suit or other legal remedies against Declarant or its affiliates under the Right to Repair Law). 13.2.5 Certificate. A copy of each amendment must be certified by at least two (2) Association officers. The amendment becomes effective when a Certificate of Amendment is Recorded. The certificate, signed and sworn to by two (2) Association officers that the requisite number of Owners and Mortgagees have approved the amendment, when Recorded, is conclusive evidence of that fact. The Association shall keep in its files for at least four (4) years the record of all such approvals. The certificate reflecting any termination or amendment which requires the written consent of any of the Mortgagees of First Mortgages must include a certification that the requisite approval of such First Mortgagees was obtained. 13.2.6 Amendment or Termination by Declarant. (a) Before First Closing. Until the first Close of Escrow in the Community, Declarant may unilaterally amend or terminate this Declaration for any purpose by Recording in the Official Records an instrument signed and acknowledged by Declarant and any other record owners of the Community. (b) Minor Corrections. Notwithstanding any other provisions of this Article, Declarant (as long as Declarant owns any portion of the Community or the Annexable Area) may unilaterally amend this Declaration or a Supplemental Declaration by Recording a written instrument signed by Declarant to: (1) conform this Declaration or any Notice of Addition or Supplemental Declaration to the rules, regulations or requirements of VA, FHA, DRE, Fannie Mae, Ginnie Mae or Freddie Mac or the City, (2) amend, replace or substitute any Exhibit to correct typographical or engineering errors, (3) include any Exhibit that was inadvertently omitted from the Declaration, any Notice of Addition or Supplemental Declaration at the time of Recording, (4) comply with any City, County, State or Federal laws or regulations, (5) correct typographical errors, (6) supplement this Declaration with provisions which pertain to rights and obligations of Declarant, the Association or Owners arising under the Right to Repair Law, (7) re-Phase any portion of the Community, and (8) change any Exhibit or portion of an Exhibit to conform to as-built conditions. Nothing in this Section 13.2.6 may be amended or terminated without the prior written approval of Declarant. - 86 - 5194-42305\SLT326\ 671527.4 5/9/07 13.2.7 Amendment by the Board. The Board may amend this Declaration for the reasons, stated in parts 2, 3, 4, 5 and 8 of Section 13.2.2(b) above, by Recording a written instrument signed by two officers of the Association certifying that the Board approved the amendment for the purposes described therein. However, until the end of all applicable statutes of limitation or repose for the filing of a complaint or suit or other legal remedies against Declarant or its affiliates under the Right to Repair Law (including tolling periods), the Board must obtain the prior written approval of Declarant to any amendment approved by the Board, or any other amendment by the Board or Association that affects the rights of Declarant under the right to Repair Law, this Declaration or any Supplemental Declaration or Notice of Addition, or for any amendment by the Board concerning matters discussed in Article 3 or Article 15. 13.2.8 Notice and Amendment: Citv Approval. A copy of any proposed amendment to this Declaration shall be provided to the City n advance. If the proposed amendment affects the City, the City shall have the right to disapprove the amendment. Within thirty (30) days after receiving a proposed amendment, the City shall notify the party who delivered the proposed amendment to the City of the City's approval or disapproval. If the City fails to respond within such thirty-day period, the City shall be deemed to have approved the proposed amendment. A copy of the final approved amendment shall be transmitted to the Citv within thirty (30) davs for the official record. ARTICLE 14 GENERAL PROVISIONS 14.1 MERGERS OR CONSOLIDATIONS. In a merger or consolidation of the Association with another association, the Community, rights and obligations of the Association may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the Community, rights and obligations of another association may, by operation of law, be added to the Community, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer and enforce the covenants, conditions and restrictions established by this Declaration governing the Community, together with the covenants and restrictions established on any other property, as one (1) plan. Any such merger or consolidation requires the prior written approval of the VA. 14.2 NO PUBLIC RIGHT OR DEDICATION. Nothing in this Declaration is a gift or dedication of all or any part of the Community to the public, or for any public use. 14.3 NOTICES. Except as otherwise provided in this Declaration, notice to be given to an Owner must be in writing and may be delivered personally to the Owner. Personal delivery of such notice to one (1) or more co-Owners, or any general partner of a partnership owning a Condominium, constitutes delivery to all Owners. Personal delivery of such notice to any officer or agent for the service of process on a corporation or limited liability company constitutes delivery to the corporation or limited liability company. Such notice may also be delivered by regular United States mail, postage prepaid, addressed to the Owner at the most recent address furnished by such Owner to the Association or, if no such address has been furnished, to the street address of such Owner's Condominium. Such notice is deemed delivered three (3) business days after the time of such mailing, except for notice of a meeting of Owners or of the Board, in which case the notice provisions of the Bylaws control. Any notice to be given to the - 87 - 5194-42305\SLT326\ 671527.4 5/9/07 o Association may be delivered personally to any member of the Board, or sent by United States mail, postage prepaid, addressed to the Association at such address as may be fixed and circulated to all Owners. 14.4 CONSTRUCTIVE NOTICE AND ACCEPTANCE. Every Person who owns, occupies or acquires any right, title, estate or interest in or to any Condominium or other portion of the Community consents and agrees to every limit, restriction, easement, reservation, condition and covenant contained in this Declaration, whether or not any reference to these restrictions is in the instrument by which such Person acquired an interest in the Community. As soon as practicable before sale or transfer of title to a Condominium or other separate interest in the Community or execution of a real property sales contract therefor, the Owner of the Condominium or other separate interest shall provide to the purchaser copies of the Governing Documents listed in California Civil Code Section 1368(a) and its successor statutes. ARTICLE 15 DECLARANT'S RIGHTS AND RESERVATIONS If there is a conflict between any other portion of the Governing Documents and this Article, this Article shall control. 15.1 CONSTRUCTION RIGHTS. Declarant has the right to (a) subdivide or re-subdivide the Community, (b) complete or modify Improvements to and on the Association Property or any portion of the Community owned or leased solely or partially by Declarant, (c) alter Improvements and Declarant's construction plans and designs, (d) modify Declarant's development plan for the Community and the Annexable Area, including designating and redesignating Phases, reshaping the Condominiums and Association Property, and constructing Residences of larger or smaller sizes, values, and of different types, and (e) construct such additional Improvements as Declarant considers advisable in the course of development of the Community so long as any Condominium in the Community or the Annexable Area remains unsold. Declarant may temporarily erect barriers, close off and restrict access to portions of the Association Property as reasonably necessary to allow Declarant to exercise the rights reserved in this Section so long as an Owner's access to that Owner's Condominium is not eliminated. 15.2 SALES AND MARKETING RIGHTS. 15.2.1 Marketing and Sales Facilities. Declarant's rights under this Declaration include the right to install and maintain such structures, displays, signs, billboards, flags and sales offices, and the right to use any Condominiums, Residences or mobile homes owned or leased by Declarant in the Community as model home complexes, real estate sales offices or leasing offices, all as may be reasonably necessary to conduct the business of completing construction and disposing of the Condominiums and the Annexable Area by sale, resale, lease or otherwise. 15.2.2 Use of Association Property. Declarant and its prospective purchasers of Condominiums are entitled to the nonexclusive use of the Association Property without further cost for access, ingress, egress, use or enjoyment, to (a) show the Community to prospective purchasers, (b) dispose of the Community as provided in this Declaration, and (c) 5194-42305\SLT326\ 671527.4 5/9/07 develop and sell the Annexable Area. Declarant, its employees, agents and prospective purchasers are also entitled to the nonexclusive use of private streets, drives and walkways for ingress, egress and vehicle parking as necessary in connection with the marketing and sale of the Condominiums. Neither Declarant, nor its employees, agents nor prospective purchasers shall make any use of the Association Property that will unreasonably interfere with the use and enjoyment thereof by the Owners. 15.3 CREATING ADDITIONAL EASEMENTS. At any time before the Close of Escrow for a Condominium, Declarant reserves the right to establish on that Condominium additional licenses, easements, reservations and rights-of-way to itself, to utility companies, or to others as Declarant determines are reasonably necessary to the proper development and disposal of the Community and Annexable Area. 15.4 ARCHITECTURAL RIGHTS. Declarant and any Person to whom Declarant may assign all or a portion of its exemption under this Declaration need not seek or obtain Design Review Committee approval of any Improvements constructed anywhere on the Community by Declarant or such Person. Declarant may exclude portions of the Community from jurisdiction of the Design Review Committee in the applicable Notice of Addition or Supplemental Declaration. Declarant, may, at its option, establish an additional design review committee for any area exempted from the jurisdiction of the Committee. 15.5 USE RESTRICTION EXEMPTION. Declarant and any Person to whom Declarant may assign all or a portion of its exemption under this Declaration is exempt from the use restrictions established in this Declaration and any other Governing Documents. 15.6 ASSIGNMENT OF RIGHTS. Declarant may assign its rights under the Governing Documents to any successor in interest to any portion of Declarant's interest in the Community by a Recorded written assignment. 15.7 AMENDMENT. No amendment may be made to this Article without the prior written approval of Declarant. 15.8 POWER OF ATTORNEY. Each Owner, by accepting a Grant Deed to a Condominium in the Community, (a) agrees and acknowledges that the Owners own no interest in the Annexable Area which may be developed, if at all, by Declarant in its sole and absolute discretion, (b) constitutes and irrevocably appoints Declarant, as long as Declarant owns any Condominium in the Community, as Owner's attorney-in-fact, for Owner and for each of Owner's Mortgagees, optionees, licensees, trustees, receivers, lessees, tenants, judgment creditors, heirs, legatees, devisees, administrators, executors, legal representatives, successors and assigns, whether voluntary or involuntary, and (c) conveys to Declarant a special power of attorney coupled with an interest authorizing Declarant to act as each Owner's attorney in fact to prepare, sign, acknowledge and Record (i) any instrument for all or any portion of the Annexable Area, and (ii) any amendment to or restatement of any Condominium Plan, as Declarant deems to be reasonably necessary to correct errors, to conform to as-built conditions, or to bring the Condominium Plan into compliance with any City, County, State or Federal laws or regulations. The acceptance or creation of any Mortgage or other encumbrance, whether or not voluntary, created in good faith, or given for value, shall be accepted or created subject to the power of -89- 5194-42305\SLT326\ 671527.4 5/9/07 attorney provisions in this Section. Nothing set forth herein shall be deemed or construed as an agreement by Declarant that any Owner shall be entitled to any participation in or discretion over the preparation and Recordation of an instrument for all or any portion of the Annexable Area, or any amendment to or restatement of any Condominium Plan. 15.9 PARTICIPATION IN ASSOCIATION. The Association shall provide Declarant with written notice of the transfer of any Condominium and all notices and other documents to which a Mortgagee is entitled pursuant to this Declaration, provided that Declarant shall not be required to make written request for such notices and other documents. Commencing on the date on which Declarant no longer has a representative on the Board, the Association shall provide Declarant with written notice of all meetings of the Board that any Owner is entitled to attend (each, an "Open Meeting") as if Declarant were an Owner, and Declarant shall be entitled to have a representative ("Declarant's Representative") present at all Open Meetings. However, the Board has the power to withhold information from the Declarant's Representative and to exclude the Declarant's Representative from any Open Meeting or portion thereof if, in the good faith judgment of the Board, access to such information or attendance at the Open Meeting would adversely affect the attorney-client privilege between the Association and its counsel or if, in the good faith judgment of the Board, access to such information or attendance at an Open Meeting would not be in the best interest of the Association or the Owners. The Declarant's Representative shall not be entitled to attend executive sessions of the Board. The Declarant's Representative will attend any Open Meeting it is permitted to attend in an observer capacity only, and it shall not have any right to vote on matters coming before the Board or Owners. Declarant's Representative shall be entitled to receive copies of the minutes of all Open Meetings. The Declarant's rights to receive written notice of meetings and to have a Declarant's Representative present at such meeting shall continue until the later of the date that is ten (10) years after the first Close of Escrow in the Community, or the expiration date of all applicable statutes of limitations or repose for the filing of a complaint or suit or other legal remedies against Declarant under the Right to Repair Law (including any tolling periods). 15.10 DECLARANT APPROVAL OF ACTIONS. 15.10.1 General Rights. Until Declarant no longer owns a portion of the Community or the Annexable Area, Declarant's prior written approval is required for any amendment to the Governing Documents which would impair or diminish Declarant's right to complete the Community or the Annexable Area or sell or lease Condominiums therein. 15.10.2 Limit on Actions. Until the end of all applicable statutes of limitations or repose for the filing of a complaint or suit or other legal remedies against Declarant under the Right to Repair Law (including any tolling periods), the following actions, before being undertaken by the Association, must first be approved in writing by Declarant: (a) Any amendment or action requiring the approval of First Mortgagees; (b) The annexation to the Community of real property other than the Annexable Area pursuant to Section 16.2; - 90 - 5194-42305\SLT326\ 671527.4 5/9/07 (c) The levy of a Capital Improvement Assessment for the construction of new facilities not constructed on the Association Property by Declarant; (d) Any significant reduction of Association maintenance or other services; or (e) Any modification or termination of any provision of the Governing Documents benefiting Declarant. 15.11 MARKETING NAME. The Community shall be marketed under the general name "Bluwater Crossing." Declarant may change the marketing name of the Community or designate a different marketing name for any Phase at any time in Declarant's sole discretion. Declarant shall notify the DRE of any change in or addition to the marketing name or names of the Community or any Phase. ARTICLE 16 ANNEXATION OF ADDITIONAL PROPERTY Additional real property may be annexed to the Community and become subject to this Declaration by any of the following methods: 16.1 ADDITIONS BY DECLARANT. Declarant may add the Annexable Area to the Community and bring such added area under the general plan of this Declaration without the approval of the Association, the Board, or Owners, as long as Declarant owns any portion of the Annexable Area. No amendment may be made to this Section 16.1 without the prior written approval of Declarant 16.2 OTHER ADDITIONS. Additional real property may be annexed to the Community and brought under the general plan of this Declaration upon the approval by vote or written consent of Members entitled to exercise no less than two-thirds (2/3) of the Association's voting power. 16.3 ADDED AREA RIGHTS AND OBLIGATIONS. Subject to the provisions of Section 16.1, when a Notice of Addition containing the provisions required by Section 16.4 is Recorded, all provisions in this Declaration will apply to the real property described in such Notice of Addition (the "Added Area") in the same manner as if the real property were originally covered by this Declaration. Thereafter, the rights, powers and responsibilities of the Owners, lessees and occupants of Condominiums in the Added Area, as well as in the property originally subject to this Declaration, will be the same as if the Added Area were originally covered by this Declaration. After the first day of the month following the first Close of Escrow in the Added Area, the Owners of Condominiums in the Added Area shall share in the payment of Assessments to the Association to meet Common Expenses of the Community. Voting rights attributable to the Condominiums in the Added Area may not be exercised until Annual Assessments have commenced on such Condominiums. 16.4 NOTICE OF ADDITION. The additions authorized under Sections 16.1 and 16.2 must be made by Recording a Notice of Addition against the real property to be added to the coverage of this Declaration. The Notice of Addition must (a) reference by instrument -91- 5194-42305\SLT326\671527.4 5/9/07 number this Declaration and the date of its Recordation, (b) describe with specificity the Added Area, (c) state that this Declaration shall apply to the Added Area and (d) describe the land use designations in the Added Area. The Notice of Addition for any addition under Section 16.1 must be signed by Declarant. The Notice of Addition for any addition under Section 16.2 must be signed by at least two (2) officers of the Association to certify that the Owner approval required under Section 16.2 was obtained. On Recordation of the Notice of Addition, the Added Area will be annexed to and constitute a part of the Community and it will become subject to this Declaration. Subject to Section 16.3, the Owners of Condominiums in the Added Area will automatically acquire Membership in the Association. A Notice of Addition may contain a Supplemental Declaration with such additions and modifications of the covenants, conditions, restrictions, reservation of easements and equitable servitudes contained in this Declaration as may be necessary to reflect the different character, if any, of the Added Territory, or as Declarant deems appropriate in the development of the Added Territory, and as are not inconsistent with the general plan of this Declaration. No Notice of Addition or Supplemental Declaration may revoke the covenants, conditions, restrictions, reservation of easements, or equitable servitudes in this Declaration as the same pertain to the real property originally covered by this Declaration. 16.5 DE-ANNEXATION AND AMENDMENT. In addition to the rights to amend or terminate a Notice of Addition granted elsewhere in this Declaration or in a Notice of Addition, Declarant may also amend a Notice of Addition or delete all or a portion of a Phase from coverage of this Declaration and the Association's jurisdiction so long as Declarant is the owner of all of such Phase and provided that (a) an amending instrument or a Notice of Deletion of Territory, as applicable, is Recorded in the same manner as the applicable Notice of Addition was Recorded, (b) Declarant has not exercised any Association vote concerning any portion of such Phase, (c) Assessments have not yet commenced concerning any portion of such Phase, (d) Close of Escrow has not occurred for the sale of any Condominium in such Phase, and (e) the Association has not made any expenditures or incurred any obligations concerning any portion of such Phase. No amendment may be made to this Section 16.5 without the prior written approval of Declarant fS/GNA TUXES ON NEXT PAGEj - 92 - 5194-42305\SLT326\ 671527.4 5/9/07 fSIGNATUREPA GE TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OFEASEMENTSj This Declaration is dated for identification purposes , 200 . POINTSETTIA COMMONS LLC, a Delaware limited liability company By: Print Name: Title: Declarant STATE OF CALIFORNIA COUNTY OF On , , before me, (here insert name and title of the officer) personally appeared and personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Signature: (SEAL) -93- 5194-42305\SLT326\ 671527.4 5/9/07 LENDER SUBORDINATION The undersigned, as Beneficiary of the beneficial interest in and under the Deed of Trust among , as Trustor, and , as Trustee and , as Beneficiary, recorded on , 20 , as Instrument No. , in the Official Records of San Diego County, California (the "Deed of Trust"), hereby subordinates the Deed of Trust and its beneficial interest thereunder to the foregoing Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Bluwater Crossing, as amended or restated (the "Declaration"), to any Notice of Addition recorded pursuant to the provisions of Article 16 of the Declaration, as amended or restated (the "Notice"), any Supplemental Declaration, as amended or restated, and to all easements to be conveyed to the Association in accordance with the Declaration, any Notice and any Supplemental Declaration. By executing this Subordination, the undersigned agrees that if the undersigned acquires title to all or any portion of the Community by foreclosure (whether judicial or non-judicial), deed-in-lieu of foreclosure or any other remedy in or relating to the Deed of Trust, the undersigned will acquire title subject to the provisions of the Declaration, any applicable Notice and any applicable Supplemental Declaration, which shall remain in full force and effect. Dated: By: Print Name: Title: fNOTARIAL A CKNO WLEDGMENT ON NEXT PA GEj 5194-42305\SLT326\ 671527.4 5/9/07 STATE OF COUNTY OF On , , before me, (here insert name and title of the officer) personally appeared and personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Signature: (SEAL) 5194-42305\SLT326\ 671527.4 5/9/07 EXHIBIT A LEGAL DESCRIPTION OF ANNEXABLE AREA 5194-42305\SLT326\ 671527.4 5/9/07 EXHIBIT B ARTICLES OF INCORPORATION OF THE ASSOCIATION 5194-42305\SLT326\ 671527.4 5/9/07 EXHIBIT C BYLAWS OF THE ASSOCIATION 5194-42305\SLT326\ 671527.4 5/9/07 c o EXHIBIT D SPECIFIC MAINTENANCE OBLIGATIONS Component Structural Integrity of Bldg Roof Foundation Internal Structural Components of Building Party Walls (Indoors between Residences) Fire Sprinklers Outer Surface of Bldg. Walls Stucco Siding Surface Finishes Garage Door Roll-up Security Door (Live- Work) Residence Entry Door Door Hardware Weather-stripping Owner Maintain wallboard and surface finishes. Maintain in working order at all times sprinkler heads and other components solely serving the Unit. Maintain indoor surface, door opener and indoor hardware. Maintain door and door hardware Maintain lock, strike plate, doorknobs, hinges and openers (as applicable). Maintain. Association Maintain per schedule. Maintain per schedule. Maintain per schedule. Maintain per schedule. Maintain per schedule, pipes, valves and pressure gauges that serve more than one Unit. Test all systems per schedule. Maintain per schedule. Maintain per schedule. Maintain per schedule. Maintain door and outdoor hardware per schedule. D-l 5194-42305\SLT326\ 671527.4 5/9/07 o Component Owner Association Frame Maintain per schedule. Replacement of Door Replace per schedule. Outdoor Paint or Other Finish Touch up with same color and material if necessary between scheduled Association Maintenance. Maintain per schedule. Indoor Paint or Other Finish Maintain. Glass Replace broken glass as necessary. Regularly clean indoor and outdoor surfaces. Exclusive Use Areas [CONFORM TO CONDOMINIUM PLAN] EU Balcony Keep free of debris and trash.Maintain structural elements, surface and surface finishes of deck, wall and railing per schedule. EU Patio Keep free of debris and trash. **[clean]** **[maintain]** Residence-facing surface of wall or fence enclosing the patio area. Maintain structural integrity of any wall or fence enclosing the patio. Maintain Association Property-facing surface of such fence or wall per schedule. ** [Maintain surface finishes on wall or fence enclosing patio area per schedule]**. EU Storage Area Keep free of debris and trash Unit systems - Water pressure regulator, hot water heater, plumbing outlets and fixtures, furnaces, ducts, built-in appliances (microwave, range, ovens), electrical wiring and circuit breakers. Maintain portions that exclusively serve the Owner's Unit. D-2 5194-42305\SLT326\ 671527.4 5/9/07 o Component Owner Association HVAC/including air conditioning compressor(s) and related equipment mounted on roof serving individual Units. Maintain ductwork, heater and air conditioner compressor located in Residence, garage, Exclusive Use Area or Roof (using Association- approved vendor for roof mounted equipment). Telephone wiring exclusively serving a Unit. Maintain. Utility Service Maintain gas lines not serviced by Gas Company or Association and water and electrical utilities not serviced by provider or Association. Maintain all utilities serving Association Property or more than one Unit Stairways, handrails and gates that are not inside the Units. Maintain per schedule. Interior of Residence and Garage Maintain all elements not designated for maintenance by Association. Indoor floor coverings Maintain; Committee to pre- approve in writing replacement floorings and underlayments. Indoor wall surfaces and ceiling Maintain, including paint and other wall coverings, patch and repair drywall (subject to restrictions on party walls). Plumbing fixtures Maintain indoor plumbing fixtures including sinks, toilets, bath, shower, faucets, sink hardware, supply hoses for washing machine and gas line for dryer. Owner may plunge blocked drains but may not use a snake in any pipe unless instructed to do so by the Association. Owner shall hire qualified plumber approved by Association for all maintenance of water, gas and sewer pipes. Maintain pipes and other fixtures serving more than one Unit. D-3 5194-42305\SLT326\ 671527.4 5/9/07 Component Cabinets Interior doors and hardware Appliances Electrical Smoke detector Windows (except sliding glass doors) Fireplace Sliding Glass Doors Hardware Glass Mailbox Outdoor Lighting Fixtures Controlled by switch in Unit Owner Maintain. Maintain. Maintain. Outlets and switch wiring and distribution except that which does not exclusively serve the Unit, wherever located Owner shall hire qualified electrical contractor approved by the Association for all electrical maintenance work. Maintain (including periodic testing and battery replacement). Maintain and regularly clean indoor and outdoor surfaces of glass if accessible. Maintain weather- stripping, caulking, locks, screens, and replace broken glass. Maintain interior surface of flue and firebox, periodically remove soot. Maintain gas supply/pipes and values. Maintain screen and glass enclosure (as applicable). Maintain lock, weather stripping, rollers, screen door (including screen, frame and lock) keep track clear of obstructions. Replace broken glass as necessary. Regularly clean indoor and outdoor surfaces. Replace lost key or broken lock as necessary. Re-lamp as necessary. Association Maintain wiring and distribution equipment serving more than one Unit. Maintain frame per schedule. Wash outdoor surfaces per schedule. Maintain clustered structures per schedule. Maintain fixtures per D-4 5194-42305\SLT326\ 671527.4 5/9/07 o [SAMPLE] Legal Condo ¥T ., „ c „ .., r «T , Unit lype Square vootaeeUnit Number 1 live/work 2 live/work 3 live/work 4 live/work 5 live/work 6 live/work 7 Townhome 8 Townhome 9 Townhome 5194-42305\SLT326\ 671527.4 5/9/07 Document comparison done by DeltaView on Wednesday, May 09, 2007 10:20:14 AM Document 1 |PowerDocs://IRVLIB/671527/3 Document 2 Rendering set PowerDocs://IRVLIB/671527/4 Standard no moves Insertion Moved to Style change Format change \4 Av^ri flplptinn Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell H^IHB^HHHI ~ - " „-£ ,-*•'-,",'', + •*F:r-J,!f;*|:-t : - ^ Count Insertions 103 Deletions 89 Moved from 0 Moved to 0 Style change 0 Format changed Total changes 199 MACOUARIE POINSETTIA INC. Action by Unanimous Written Consent of the Board of Directors The undersigned, being all of the members of the Board of Directors MACQUAREE POINSETTIA INC., a Delaware corporation (the "Corporation"), by this unanimous written consent in accordance with Section 141(f) of the General Corporation Law of the State of Delaware hereby consent to the taking of the following action and adopt the following preambles and resolutions with the same force and effect as if they had been unanimously adopted at a duly convened first, organizational meeting of the Board of Directors of the Corporation at which a quorum was present and acting throughout: Incorporation; Actions of Incorporator RESOLVED, that all actions taken by Christine R. Rivera, the incorporator of the Corporation, in connection with forming and organizing the Corporation, including but not limited to executing the Corporation's Certificate of Incorporation, causing such Certificate of Incorporation to be filed in the Office of the Secretary of State of the State of Delaware, and taking the actions taken by her by the Action of Sole Incorporator of the Corporation, dated December 23, 2008, be, and each of them hereby is, in all respects approved, authorized, ratified and confirmed; rs RESOLVED, that in furtherance and not in limitation of the foregoing resolutions, the By-Laws adopted by the sole incorporator of the Corporation be and hereby are approved and adopted by this Board of Directors as the By-Laws of the Corporation; Election of Officers RESOLVED, that the persons named in the following list be and hereby are elected to the office or offices of the Corporation set forth opposite their respective names in the following list, each to serve in the office or offices set forth opposite his or her name in such list below until his or her successor to such office is elected and has qualified, or until his or her earlier resignation, removal or death: Jabin Henderson President James Porch Vice-President Robert Barnes Vice-President Christine R. Rivera Secretary; and Kathleen Hahn Treasurer; Organizational Expenses and Procurements RESOLVED, that the Treasurer of the Corporation be and hereby is authorized and directed to pay all taxes, fees and other expenses incurred prior to the effective date of this Written Consent, or incurred hereafter, in connection with the organization of the Corporation, and to reimburse the persons and entities who and which paid any such expenses prior to the effective date of this Written Consent; RESOLVED, that the officers of the Corporation be and hereby are authorized and directed to procure the necessary corporate books and records and to open and maintain stock transfer records for the Corporation in accordance with the By-Laws of the Corporation and applicable law; Fiscal Year RESOLVED, that this Board of Directors confirms and ratifies that, as provided in Section 6.02 of the By-Laws of the Corporation, the fiscal year of the Corporation shall end on March 31 in each year; Application for Employer Identification Number RESOLVED, that the officers of the Corporation be and hereby are authorized and directed to obtain an Employer Identification Number for the Corporation; Form of Stock Certificate RESOLVED, that the form of stock certificate attached to this Written Consent as EXHIBIT A be and hereby is approved and adopted as the form of certificate representing shares of the common stock, par value $0.01 per share, of the Corporation ("Common Stock"); Corporate Seal RESOLVED, that the form of corporate seal set forth on EXHIBIT B attached to this Written Consent be and hereby is approved and adopted as the corporate seal of the Corporation; Foreign Qualifications RESOLVED, that for the purpose of authorizing the Corporation to qualify to do business in such states, territories and dependencies of the United States and foreign countries, if any, in which the President or any Vice President of the Corporation shall deem it necessary or expedient for the Corporation to transact business, the officers of the Corporation hereby are authorized and directed to appoint and substitute all necessary agents or attorneys for service of process, to designate and change the location of all necessary statutory offices and, under the Corporation's corporate seal as necessary, to make and file all necessary certificates, reports, powers of attorney and other instruments, as may be required by the laws of such state, territory, dependency or country to authorize the Corporation to transact business therein and, whenever it is expedient for the Corporation to cease doing business therein and withdraw therefrom, to revoke any appointment of any agent or attorney for service of process and to file all necessary or desirable and appropriate certificates, reports, revocations of appointment and surrenders of authority of the Corporation to do business in such state, territory, dependency or country; Issuance of Common Shares WHEREAS, the Corporation expects to receive from its sole stockholder, MACQUARIE FUNDING HOLDINGS INC., a Delaware corporation ("MFHI"), an offer to purchase 100 shares of the Corporation's Common Stock, par value US$.01 per share, at a purchase price of US$87,010.27 per Share (that is, for an aggregate purchase price of US$8,701,027.00), effective December 24, 2009 (the "MFHI Subscription"): and WHEREAS, the Board has determined that it is in the best interests of the Corporation to accept the MFHI Subscription. NOW THEREFORE, IT IS HEREBY RESOLVED, that the Corporation be, and it hereby is, authorized and directed to accept the MFHI Subscription and, in connection therewith, to issue 100 shares of the Corporation's Common Stock to MFHI effective December 24, 2009, (the "MFHI Issuance") respectively in payment therefore, which shares of Common Stock, will be fully paid and non-assessable. RESOLVED, that, for any share issuances, the Officers of the Corporation may cause to be added to such certificate: (a) at the top of the front of the certificate the following legend: SEE RESTRICTIVE LEGEND ON THE BACK OF THIS CERTIFICATE; and (b) on the back of such certificate the following legend: THE CORPORATION WILL FURNISH WITHOUT CHARGE, TO EACH STOCKHOLDER WHO SO REQUESTS, A STATEMENT OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL, OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE CORPORATION AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED IN A PRIVATE TRANSACTION, FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND THEY MAY NOT BE TRANSFERRED, SOLD, OFFERED FOR SALE OR OTHERWISE DISPOSED OF UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT OR OTHER QUALIFICATION RELATING TO SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ALL APPLICABLE STATE SECURITIES LAWS OR UNLESS THE CORPORATION RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION OR OTHER QUALIFICATION UNDER THE SECURITIES ACT OF 1933 AND ALL APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH TRANSFER, SALE, OFFER OR OTHER DISPOSITION. Adoption of MGL Risk Management Framework It was NOTED that MGL has a risk management framework for identifying, assessing and managing its market, credit, liquidity, operational and legal risks ("the MGL Risk Management Framework"). The MGL Risk Management Framework is reflected in policies, procedures and defined areas of responsibility available on the MGL intranet site and outlined in mandatory training to senior management. This framework is summarized annually and lodged with APRA in the document "A Description of Management Systems to Limit Risk and Monitor Exposures". It was RESOLVED to apply the MGL Risk Management Framework, as amended or replaced from time to time, and as applicable, to the operations of the Company. MGL Omnibus Loans and Deposits Agreement WHEREAS, the Directors have determined that it is in the best interests of the Corporation to enter into the Accession Agreement to the Omnibus Loans and Deposits Agreement between MGL and Group Companies attached hereto as Exhibit D, an Explanatory Memorandum from FOD - Finance and Planning in relation to this Deed is attached hereto as Exhibit C. RESOLVED that the Corporation may enter into an Accession Agreement, substantially in the form attached hereto, with MGL and any Group Company or Group Companies and: any Director or Secretary of the Company be authorized to execute any such Accession Agreement on behalf of the Company; the signing and delivery of, and observance of, the obligations contained in and pursuant to the Accession Agreement be authorized; acknowledge that entry into the Accession Agreement will benefit the Company as: the Company obtains a priority to payments ahead of other unsecured creditors in the event of a failure of one of the other companies, to the extent of any balances owed by the Company to that other company; the Company is able to net exposures to Group Companies on its balance sheet, reducing the size of the balance sheet and gearing; and MGL and other Group Companies are similarly able to net exposures to Group Companies on their balance sheets which should lead to reduced funding costs which should then be reflected in reduced funding costs throughout the Group, including for the Company. Services Agreements WHEREAS, the Board deems it in the best interests of the Corporation for the Corporation to enter into services agreements with certain companies, which are part of the Macquarie Group of companies. NOW THEREFORE, IT IS HEREBY RESOLVED, that any officer or director of the Corporation be authorized to execute and deliver any services agreement on behalf of the Corporation. IT IS HEREBY RESOLVED, that the execution and delivery by the Corporation of the services agreements dated December 23, 2009 between: • the Corporation and Macquarie Bank Limited; and • the Corporation and Macquarie Funding Holdings Inc.; ("Services Agreements") be and hereby are approved, authorized and confirmed, and the performance by the Corporation of its obligations under such Services Agreements be and hereby is approved and authorized. General Authorization; Ratification IT IS HEREBY RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, in the name and on behalf of the Corporation, to prepare, execute, deliver and file such certificates, documents, instruments and other papers and to do or cause to be done all such acts and things (including the payment of all necessary expenses and the retention of the services of attorneys, accountants, printers and others) as the Authorized Officers, or any of them, may deem necessary or appropriate to effect fully the intents and purposes of any and all of these resolutions; and it is FURTHER RESOLVED, that all acts and things previously done and performed or caused to be done and performed by any officer of the Corporation, in the name and on behalf of the Corporation prior to the date of this written consent, in connection with the actions and transactions contemplated by the foregoing resolutions be, and they hereby are, ratified, confirmed and approved in all respects. IN WITNESS WHEREOF, the undersigned have each executed this Written Consent on or before, and this Written Consent is to be effective December 23,2008. Robert Barnes Jabin Henderson James Porch Attachments: EXHIBIT A: Form of Common Stock certificate EXHIBIT B: Corporate seal EXHIBIT C: Nick Minogue memo EXHIBIT D: Phil Richards memo EXHIBIT E: Accession Agreement (to Omnibus Agreement) IT IS HEREBY RESOLVED, that the execution and delivery by the Corporation of the services agreements dated December 23,2009 between: • the Corporation and Macquarie Bank Limited; and • the Corporation and Macquarie Funding Holdings Inc.; ("Services Agreements") be and hereby are approved, authorized and confirmed, and the performance by the Corporation of its obligations under such Services Agreements be and hereby is approved and authorized. General Authorization: Ratification IT IS HEREBY RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, in the name and on behalf of the Corporation, to prepare, execute, deliver and file such certificates, documents, instruments and other papers and to do or cause to be done all such acts and things (including the payment of all necessary expenses and the retention of the services of attorneys, accountants, printers and others) as the Authorized Officers, or any of them, may deem necessary or appropriate to effect folly the intents and purposes of any and all of these resolutions; and it is FURTHER RESOLVED, that all acts and things previously done and performed or caused to be done and performed by any officer of the Corporation, in the name and on behalf of the Corporation prior to the date of this written consent, in connection with the actions and transactions contemplated by the foregoing resolutions be, and they hereby are, ratified, confirmed and approved in all respects. IN WITNESS WHEREOF, the undersigned have each executed this Written Consent on or before, and this Written Consent is to be effective December 23,2008. Robert Barnes Y Jabin Henderson James Porch Attachments: EXHIBIT A: Form of Common Stock certificate EXHIBIT B: Corporate seal EXHIBIT C: Nick Minogue memo EXHIBIT D: Phil Richards memo EXHIBIT E: Accession Agreement (to Omnibus Agreement) IT IS HEREBY RESOLVED, that the execution and delivery by the Corporation of the services agreements dated December 23,2009 between: • the Corporation and Macquarie Bank Limited; and • the Corporation and Macquarie Funding Holdings Inc.; ("Services Agreements") be and hereby are approved, authorized and confirmed, and the performance by the Corporation of its obligations under such Services Agreements be and hereby is approved and authorized. General Authorization; Ratification IT IS HEREBY RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, in the name and on behalf of the Corporation, to prepare, execute, deliver and file such certificates, documents, instruments and other papers and to do or cause to be done all such acts and things (including the payment of all necessary expenses and the retention of the services of attorneys, accountants, printers and others) as the Authorized Officers, or any of them, may deem necessary or appropriate to effect fully the intents and purposes of any and all of these resolutions; and it is FURTHER RESOLVED, that all acts and things previously done and performed or caused to be done and performed by any officer of the Corporation, in the name and on behalf of the Corporation prior to the date of this written consent, in connection with the actions and transactions contemplated by the foregoing resolutions be, and they hereby are, ratified, confirmed and approved in all respects. IN WITNESS WHEREOF, the undersigned have each executed this Written Consent on or before, and this Written Consent is to be effective December 23, 2008. Robert Barnes Ja; Attachments: EXHIBIT A: Form of Common Stock certificate EXHIBIT B: Corporate seal EXHIBIT C: Nick Minogue memo EXHIBIT D: Phil Richards memo EXHIBIT E: Accession Agreement (to Omnibus Agreement) PAGE 1 The yirst State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY "POINSETTIA COMMONS LLC" IS DULY FORMED UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL EXISTENCE SO FAR AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE TWENTY-FIRST DAY OF FEBRUARY, A.D. 2006. AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL TAXES HAVE NOT BEEN ASSESSED TO DATE. AND I DO HEREBY FURTHER CERTIFY THAT THE SAID "POINSETTIA COMMONS LLC" WAS FORMED ON THE SEVENTEENTH DAY OF FEBRUARY, A.D. 2006. , 4111971 8300 060162098 Harriet Smith Windsor, Secretary of State AUTHENTICATION: 4537218 DATE: 02-21-06 TCR SOUTHERN CALIFORNIA 111, INC. CERTIFICATE OF CORPORATE OFFICER The undersigned, Laura Hopkins, hereby certifies that; 1. i arn a duly elected, qualified and acting Assistant Secretary of TCR Southern California Hi, Inc., a Texas corporation (the "Corporation"), and that, as such Assistant Secretary, I am authorized to execute and deliver this Certificate in the name of and on behalf of the Corporation. 2. The Corporation is the sole genera! partner of SC 102 Poinsettia Limited Partnership, a Delaware limited partnership, which is the sole member of Poinsettia Commons LLC, a Delaware limited liability company, 3. Set forth below are the names of duly elected, qualified and acting officers of the Corporation holding the offices opposite his or her name: NAME . OFFICE Kevin E, Andrade President Eric J. Lezak Vice President Brad C, Perozzi Vice President/Assistant Secretary Clifford A. Breining Vice President Harian R. Crow Vice President J, Ronald Terwilliger Vice President Michael C. Genthe Vice President/Assistant Secretary Michael Collins Vice President Kimberly J. Paperin Vice President Thomas J, Patterson Vice President/Treasurer/Secretary Alexander P, Gill Assistant Secretary Alison E. Mori Assistant Secretary Faye Thetford Assistant Secretary Laura Hopkins Assistant Secretary Lee Ann Shamblin Assistant Secretary Marcia L. Moody • Assistant Secretary Shari Steinhardt Assistant Secretary Robert LaFever Assistant Secretary Julie A. Bodner Assistant Secretary IN WITNESS WHEREOF, this Certificate has been executed this 10* day of October, 2006. t>'^V. f^ ~> *i TRAMMELL CROW RESIDENTIAL 2001 Bryan Street Suite 3700 Dallas, Texas 75201 SENT VIA EMAIL December 7, 2009 RE: TCR Southern California III, Inc. Certificate of Incumbency To Whom It May Concern: In accordance with the request of Kevin E. Andrade and Brad C. Perozzi, I am pleased to provide a Certificate of Incumbency for TCR Southern California III, Inc., a Texas corporation, (the "Company"). Regarding the signing capacity and requisite authority of Kevin E. Andrade as President and Brad C. Perozzi as Vice President of the Company, please be advised of the following: The Company is the general partner of SC 102 Poinsettia Limited Partnership, a Delaware limited partnership, which is a member of Poinsettia Commons LLC.B Delaware limited liability company, which is the owner and developer of the referenced property. Officers of the Company have the authority to perform duties customarily incident to their respective offices, and without limitation, the President and any Vice President have the authority to execute and deliver agreements and instruments on behalf of the Company, acting in its individual capacity or in its representative capacity as identified herein, on behalf of the limited partnerships as sole member. Should you have any questions, please do not hesitate to contact me at 214/922- 8412. Very truly yours, Laura Hopkins Assistant Secretary of TCR Southern California 111, Inc. Attachment croHl 5 c TCR SOUTHERN CALIFORNIA III, INC. CERTIFICATE OF INCUMBENCY The undersigned, Laura Hopkins, hereby certifies that: 1. I am a duly elected, qualified and acting Assistant Secretary of TCR Southern California III, Inc., a Texas corporation, (the "Company") and I am authorized to execute and deliver this Certificate in the name of and on behalf of the Company. 2. Set forth below, are the names of the duly elected, qualified and acting officers of the Company holding the offices opposite their name: NAME Kevin E. Andrade Brad C. Perozzi Charles R. Brindell, Jr. J. Ronald Terwilliger Mark R. Dempsey Alexander P. Gill Clifford A. Breining Eric J. Lezak Kenneth J. Valach Kimberly J. Paperin Michael C. Genthe Michael Collins Timothy J. Hogan Robert LaFever Faye Thetford Laura Hopkins Lee Ann Shamblin Marcia L. Moody Shari Steinhardt OFFICE President Vice President/Assistant Secretary Vice President Vice President Vice President/Treasurer Vice President Vice President Vice President Vice President Vice President Vice President/Assistant Secretary Vice President Vice President/Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary IN WITNESS WHEREOF, the undersigned has hereunto set her hand this 7th day of December, 2009. TCR TRAMMELL CROW RESIDENTIAL 2001 Bryan Street Suite 3700 Dallas, Texas 75201 (214) 922-8480 FAX (214) 922-8408 Ishamblin@tcresidendal.com Lee Ann Shamblin Paralegal Director VIA ELECTRONIC TRANSMISSION May 9, 2007 Re: Poinsettia Commons - Carlsbad. California To Whom It May Concern: In accordance with the request of Bob LaFever and on behalf of Brad Perozzi, I am pleased to provide a Certificate of Corporate Officer for TCR Southern California III, Inc., a Texas corporation (the "Corporation"). Regarding the signing capacity and requisite authority of Brad Perozzi as Vice President of the Corporation, please be advised the following: The Corporation is the sole general partner of SC 102 Poinsettia Limited Partnership, a Delaware limited partnership (the "Limited Partnership"), which is the managing member of Poinsettia Commons LLC, a Delaware limited liability company, which is the owner and developer of the referenced property (the "LLC"). Officers of the Corporation have the authority to perform duties customarily incident to their respective offices, and without limitation, the President and any Vice President have the authority to execute and deliver agreements and instruments on behalf of the Corporation, acting in its individual capacity or in its representative capacity as identified herein, on behalf of the Limited Partnership as general partner, and on behalf of the LLC as the Limited Partnership's managing member. Should anyone have questions, please do not hesitate to call me at the above phone number or e-mail address and I will be happy to help however I can. Very truly yours, Lee Ann Shamblin Enclosure LAStPOINSETTIA COMMON3CERT INC LTFtdOC TCR SOUTHERN CALIFORNIA III. INC. CERTIFICATE OF CORPORATE OFFICER The undersigned, Lee Ann Shamblin, hereby certifies that: 1. I am a duly elected, qualified and acting Assistant Secretary of TCR Southern California III, Inc., a Texas corporation (the "Corporation"), and I am authorized to execute and deliver this Certificate in the name of and on behalf of the Corporation. 2. The Corporation is the sole general partner and has requisite authority to act on behalf of SC 102 Poinsettia Limited Partnership, a Delaware limited partnership (the "Limited Partnership"), and the Limited Partnership is a duly formed, validly existing limited partnership under the laws of the State of Delaware. The Limited Partnership is the managing member and has requisite authority to act on behalf of Poinsettia Commons LLC, a Delaware limited liability company (the "LLC"), and the LLC is a duly formed, validly existing limited liability company under the laws of the State of Delaware. 3. Set forth below are the names of the duly elected, qualified and acting Directors and Officers of the Corporation holding the offices opposite his or her name: NAME OFFICE Kevin E. Andrade President Harlan R. Crow Director/Vice President J. Ronald Terwilliger Director/Vice President Michael Collins Director/Vice President Brad C. Perozzi Vice President/Assistant Secretary Clifford A. Breining Vice President Eric J. Lezak Vice President Kimberly J. Paperin Vice President Michael C. Genthe Vice President/Assistant Secretary Thomas J. Patterson Vice President/Treasurer/Secretary Alexander P. Gill Assistant Secretary Alison E. Mori Assistant Secretary Faye Thetford Assistant Secretary Julie A. Bodnar Assistant Secretary Laura Hopkins Assistant Secretary Lee Ann Shamblin Assistant Secretary Marcia L. Moody Assistant Secretary Robert LaFever Assistant Secretary Shari Steinhardt Assistant Secretary LAS\POlNSETTIA COMMONSXCERT CORP OFFICER.doc IN WITNESS WHEREOF, the undersigned has hereunto signed this Certificate this 9th day of May, 2007. Lee Ann Shamblin, Assistant Secretary U\S\POINSE7TIA COMMONSVCERT CORP OFFICER.doc TCR SOUTHERN CALIFORNIA III, INC. CERTIFICATE OF CORPORATE OFFICER The undersigned, Laura Hopkins, hereby certifies that: 1. I am a duly elected, qualified and acting Assistant Secretary of TCR Southern California III, Inc., a Texas corporation (the "Corporation"), and that, as such Assistant Secretary, I am authorized to execute and deliver this Certificate in the name of and on behalf of the Corporation. 2. The Corporation is the sole general partner of SC 102 Poinsettia Limited Partnership, a Delaware limited partnership, which is the sole member of Poinsettia Commons LLC, a Delaware limited liability company. 3. Set forth below are the names of duly elected, qualified and acting officers of the Corporation holding the offices opposite his or her name: NAME OFFICE Kevin E. Andrade President Eric J. Lezak Vice President Brad C. Perozzi Vice President/Assistant Secretary Clifford A. Breining Vice President Harlan R. Crow Vice President J. Ronald Terwilliger Vice President Michael C. Genthe Vice President/Assistant Secretary Michael Collins Vice President Kimberiy J. Paperin Vice President Thomas J. Patterson Vice President/Treasurer/Secretary Alexander P. Gill Assistant Secretary Alison E. Mori Assistant Secretary Faye Thetford Assistant Secretary Laura Hopkins Assistant Secretary Lee Ann Shamblin Assistant Secretary Marcia L. Moody • Assistant Secretary Shari Steinhardi Assistant Secretary Robert LaFever Assistant Secretary Julie A. Bodner Assistant Secretary IN WITNESS WHEREOF, this Certificate has been executed this 10th day of October, 2006.. Tau 23 3.3-0906-M ISC-POT LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of the effective date of September 1, 2006 ("Effective Date") by and between the North County Transit District ("NCTD"), and Poinsettia Commons LLC, a Delaware Limited Liability Company, ("Licensee"). RECITALS A. NCTD has policies regulating and governing the use of its Rights-of-Way, B. Licensee has applied for the issuance of a License in accordance with such policies and NCTD has agreed to allow Licensee to use that portion of the Right of Way identified in Exhibit A ("License Area"), subject to the terms and conditions of this Agreement. C. Licensee agrees to be bound by the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, the parties agree as follows: 1. License to Use. In consideration of the sum of One Thousand Dollars ($ 1,000.00) due and payable on issuance of this License Agreement, and of the covenants and conditions set forth in this Agreement, NCTD licenses Licensee to own, maintain, repair, or replace a concrete sidewalk, and two (2) concrete stairway landings within the Poinsettia Lane Coaster Station parking lot, at approximate Milepost 233.3, (the Facility"), subject to applicable local, state and federal law and this Agreement. 2. Authority Not Exclusive. This License is non-exclusive. The Licensee shall respect the rights and property of NCTD and other authorized users of the Rights-of- way, easements, power poles, street light poles, vaults, and conduits. Except as otherwise required by applicable law, disputes between the Licensee and parties other than NCTD over the use, pursuant to this Agreement, of the easements, power poles, street light poles, vaults, conduits and other rights-of-way shall be submitted to NCTD for resolution. Licensee expressly agrees the Facility shall not interfere with any use of the surface property. 3. Relocation. Licensee shall, at Licensee's sole expense and within one hundred eight (180) days after receiving written notice from NCTD, protect, temporarily relocate, or remove the Facility if NCTD determines, in its sole and absolute discretion that the Facility is inconsistent or interferes with NCTD's current or planned use of the License Area or Right-of-Way. In consideration of NCTD's agreement to enter into this License, Licensee hereby waives any and all rights it may now have, or hereafter obtain, to any "relocation assistance benefits" pursuant to the Federal Uniform Relocation Assistance Act (42 U.S.C. § 4601 et seq.), the License Agreement .-1: 233.3-0906-MISC-PO1 California Relocation Assistance law (Cal. Gov. Code § 7260 et seq.) or any other statute that replaces or provides rights similar to such statutes, if NCTD requires Licensee to relocate the Facility or makes use of the Right-of-Way in such a way as to 'displace1 Licensee from the License Area. Licensee, further, shall in the future execute any further documentation of the release and waiver provided hereby as NCTD may reasonably require. 4. Limitations on Use. 4.1 Licensee shall comply with all applicable terms, conditions and requirements of NCTD's policies regarding rights-of-way and other NCTD ordinances, rules and regulations. Licensee shall comply with all applicable laws and regulations of the federal, state, county, local governments and all administrative agencies thereof which may have jurisdiction over Licensee's proposed use of the License Area and the use, construction, and maintenance of the Facility. 4.2 Licensee shall not cause or permit any Hazardous Material to be used, stored, transported, generated, or disposed in or about the License Area by Licensee or Licensee's agents, employees, contractors, licensees, or invitees. "Hazardous Material" means any hazardous, toxic, or infectious substance, material, or waste which is or becomes regulated by any local governmental entity, the State of California, or the United States Government under any law, regulation or ordinance regulating or controlling any Hazardous Material (the "Hazardous Materials Laws"), including, without limitation, any material, or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under California Health and Safety Code §§ 25115, 25117 or 25122.7, or listed pursuant to California Health and Safety Code § 25140, (ii) defined as a "hazardous substance" under California Health and Safety Code § 25316, (in) defined as a "hazardous material," "hazardous substance" or "hazardous waste" under California Health and Safety Code § 25501 (v) defined as a "regulated medical waste" under 40 C.F.R. § 259.10(a) or § 259.30, (v) petroleum or petroleum product, (vi) asbestos, (vii) designated as a "hazardous substance" pursuant to § 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317), (ix) defined as a "hazardous waste" pursuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (42 U.S.C. § 6903), or (x) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601). 4.3 No use, construction, or maintenance by Licensee or on Licensee's behalf on the License Area will interfere with any railroad operations on the Right-of-Way. 4.4 Licensee shall not cross or permit the crossing over of the railroad tracks on the Right-of-Way except at public crossings approved by the California Public Utilities Commission. 233.3-0906-MISC-POf 4.5 Licensee shall not leave any personal property or equipment on the Right-of-Way unattended at any time. 4.6 Licensee shall not install or use any underground storage tanks on the License Area. 5. Insurance Licensee, at Licensee's sole cost and expense, shall procure and maintain the following insurance: 5.1 General Liability. a. Coverage for commercial general liability shall be at least as broad as Insurance Services Office Commercial General Liability Coverage (Occurrence Form CG 0001). b. Limits shall be no less than Two Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply to the Right-of-Way (with the ISO CG 2503, or ISO CG 2504, or insurer's equivalent endorsement provided to NCTD) or the general aggregate limit shall be twice the required occurrence limit. c. The policy shall cover bodily injury (including death) and property damage liability, owned and non-owned equipment, and blanket contractual liability. d. All policy or endorsement limitations relating specifically to operations on or near railroad property or track shall be eliminated. 5.2Automobile Liability. a. Coverage for automobile liability insurance shall be at least as broad as insurance Services Office Automobile Liability Coverage (Form CA 0001), covering Symbol 1 (any auto). b. Limits shall be not less than one million dollars ($1,000,000) for bodily injury and property damage each accident limit. c. The insurance shall indemnify against loss from liability imposed by law for damages on account of bodily injury, properly damage, and personal injury. The automobile liability policy shall cover all owned, non-owned, and hired automobiles. 5,3 Licensee shall cover or insure under the applicable laws relating to workers' compensation insurance, all of their employees working on or about the Right-of- Way, all in accordance with the "Workers' Compensation and Insurance Act," V.- 233.3-0906-M1SC-POI Division IV of the Labor Code of the State of California and any Acts amendatory thereof. Licensee shall provide employers liability insurance in the amount of not less than one million dollars ($1,000,000) per accident for bodily injury and disease. By his/her signature hereunder, Licensee certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it will comply with such provisions in connection with any work performed on the Site. Any persons providing services with or on behalf of Licensee shall be covered by workers' compensation (or qualified self-insurance). 5.4The general liability and automobile liability policies are to contain, or be endorsed to contain the following provisions: a. NCTD, its directors, officers, employees, contractors, agents or authorized volunteers are to be named as additional insureds as respects liability arising out of Licensee's operations and activities or automobiles owned, leased, hired or borrowed by Licensee. The coverage shall contain no special limitations on the scope of protection afforded to NCTD, its directors, officers, employees, agents or authorized volunteers. b. For any claims arising from Licensee's operations or activities, Licensee's insurance shall be primary insurance to NCTD, its directors, officers, employees, contractors, agents or authorized volunteers. Any insurance, self-insurance or other coverage maintained by NCTD, its directors, officers, employees, agents or authorized volunteers shall not contribute to it. c. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to NCTD, its directors, officers, employees, contractors, agents or authorized volunteers. d. Licensee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5.5 All of the insurance shall be provided on policy forms and through companies reasonably satisfactory to NCTD. 5.6 Insurance is to be placed with insurers having a current A.M. Best rating of no less than A-, Vil or equivalent or as otherwise approved by NCTD. 5.7 Prior to execution of this License, Licensee shall file with NCTD a certificate of insurance signed by the insurer's representative. Such evidence shall also include confirmation that coverage includes or has been modified to include required provisions as set forth in section 5.4. Licensee shall, upon the 233.3-0906-MISC-POI reasonable demand of NCTD, deliver to NCTD such policy or policies of insurance. Each insurance policy required by this clause shall state or be endorsed to state that coverage shall not be amended or canceled, except after thirty (30) days prior written notice by U.S. mail has been given to NCTD. 5.8 Every contractor or subcontractor of Licensee entering upon, using, or performing any work upon the Right-of-way by or on behalf of Licensee shall provide evidence of insurance required under this section 5 prior to entering upon the Right-of-Way. 5.9 NCTD reserves the right to increase the limits for the insurance required by this section 5 to amounts recommended by NCTD's insurance risk manager or insurance representative. 6. Indemnification Licensee agrees to protect, save, defend, and hold harmless NCTD and its Board and each member of the Board, the San Diego Northern Railroad, the National Railroad Passenger Corporation {"AMTRAK"), the Southern California Regional Rail Authority ("SCRRA" or "Metrolink"), and the Burlington Northern Santa Fe Railway Company ("BNSF"), their officers, agents and employees from any and all liability or claim of liability, loss or expense, including defense costs and legal fees and claims for damages of whatsoever character, nature and kind, whether directly or indirectly arising from or connected with an act or omission of Licensee, or any employee, agent, invitee, or contractor of Licensee, or other person acting by or on behalf of Licensee on or about the Right-of-Way, including, but not limited to, liability, expense, and claims for bodily injury, death, personal injury, or property damage; provided, however, that nothing herein shall relieve any party indemnified hereunder from liability to the extent that such liability arises from such party's sole established negligence or willful misconduct The requirements as to the types and limits of insurance coverage to be maintained by Licensee as required by section 5, and any approval of such insurance by NCTD, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Licensee pursuant to this Agreement, including but not limited to the provisions concerning indemnification. 7. Construction. 7.1 Any work performed or caused to be performed by Licensee on the License Area shall be performed (a) at Licensee's sole cost and expense; (b) in accordance with any and all applicable laws, rules and regulations (including the NCTD's rules and regulations) and (c) in a manner that is satisfactory to NCTD and which meets or exceeds the then applicable standards of the industry for such work. 7.2 Licensee shall submit to NCTD for review and approval prior to commencement of any construction drawings, specifications, and other construction documents describing any proposed work in the License Area in sufficient detail to enable NCTD to determine the scope and nature of the proposed work and the potential 233.3-0906-MISC-POI effect of such work on the Right-of-Way and train operations, NCTD may approve or disapprove any work in NCTD's sole and absolute discretion, and NCTD may require such changes or impose such conditions as NCTD, in its sole and absolute discretion, deems necessary or appropriate. 7.3 Licensee shall provide NCTD and all holders of underground utility facilities located within the License Area with at least seven (7) calendar days written notice prior to commencement of any work on the License Area. In the event of an emergency, Licensee shall notify NCTD personally or by telephone prior to commencing any work. Upon completion of any work, Licensee shall restore the License Area to its condition immediately preceding the commencement of the work. 7.4 Every individual who will be entering upon the License Area or Right-of-Way under this Agreement, before entering, shall first attend a class conducted by NCTD or NCTD's designee on Railroad Worker Protection Safety rules and regulations. Licensee shall pay all costs associated with such class. 7.5 Not less than three (3) business days prior to each entry on the License Area or Right-of-Way, Licensee shall complete the "Flag Protection Right-of-Way Work Request" form, attached hereto as Exhibit "B." The need for flag protection for Licensee's operations on or adjacent to the Right-of-Way shall be determined in the sole discretion of NCTD's Manager of Maintenance of Way. In the event that the Manager of Maintenance of Way determines that flag protection is necessary, Licensee shall not enter upon or use the License Area until flag protection has been provided. Licensee shall pay all costs of flag protection. NCTD shall use reasonable efforts to provide flag protection on the dates and times of Licensee's requested entries, provided that any work by NCTD, BNSF, or AMTRAK that requires flag protection shall take priority, NCTD shall not be liable for any costs, expenses, or claims if flag protection is not provided on Licensee's requested dates or times of entry. 7.6 Licensee shall, upon NCTD's request and at Licensee's expense, install barrier fencing, K-rail, and/or landscaping to shield the railroad track area from public access and or the improvements thereon from public view. NCTD shall have the right to review and approve fencing and/or landscaping plans prior to installation. 7.7 NCTD's review and inspection of the drawings, specifications, construction documents, and work is for the purpose of examining the general arrangement, design, and details of the work for potential impact on the Right-of-Way and railroad operations. NCTD and NCTD's employees, consultants, and agents assume no responsibility for and make no representations or warranties, express or implied, as to the design, condition, workmanship, or adequacy of the drawings, specifications, construction documents, or work. No review, comments, requirements, or inspection shall relieve Licensee or Licensee's engineers, contractors, subcontractors, or consultants from the entire 233.3-0906-MISC-POI responsibility for the errors or omissions in the drawings, specifications, or construction documents, or for the quality or adequacy of the work. 8. Reimbursement of NCTD Licensee shall reimburse NCTD, within 30 days of invoice, for all cost and expense incurred by NCTD in connection with NCTD's review and processing of this Agreement and any work performed by or for Licensee on the License Area. These costs include, but are not limited to, NCTD staff time and consultants fees for the expenses of reviewing construction documents, conducting railroad safety training, marking out of railroad facilities, inspections, security, flag protection, the installation and removal of false work beneath tracks, equipment rentals, and restoration of the Right-of-Way to the same condition as when Licensee entered thereon. Upon execution of this License, Licensee shall deposit with the NCTD the amount determined by NCTD to be the probable amount of reimbursable expenses. NCTD may deduct the costs and expenses from the deposit as such costs and expenses are incurred. Costs of services provided by NCTD employees will be charged at the employees' fully loaded productive hourly rates (monthly salary and benefits divided by 150 hours). Services provided by NCTD consultants, equipment rentals, and other third party costs will charged at cost plus a 7.2% administrative fee. Upon demand by NCTD, Licensee shall make any additional deposits that NCTD determines are necessary to reimburse NCTD for the costs and expenses incurred by NCTD. In the event that the costs and expenses incurred by NCTD exceed the amounts deposited, Licensee shall reimburse NCTD for ail such costs and expenses within 30 days of invoice. 9. Maintenance and Repair, Licensee shall, at Licensee's sole expense, maintain the Facility and License Area in a condition satisfactory to NCTD and in accordance with applicable governmental codes. Licensee shall be responsible for any citations issued by any agency having jurisdiction as a result of Licensee's failure to comply with any applicable law, regulation, ordinance, rule, or order. 10. Taxes. Nothing contained in this Agreement shall be construed to exempt the Licensee from any tax levy or assessment which is or may be hereafter lawfully imposed. Notice is hereby given pursuant to Revenue and Tax Code Article 107.6 that this License may create a property interest subject to property taxation and may subject Licensee to the payment of property taxes levied on such interest 11. Default; Termination. In the event that Licensee fails to perform any obligation under this Agreement, Licensee shall pay all costs and expenses incurred by NCTD in obtaining performance of such obligations, including costs of suit and reasonable attorney's fees. If Licensee uses the Right-of-Way for any purpose not expressly authorized by this Agreement or fails to act strictly in accordance with the terms and conditions of this Agreement, and if such default is not corrected within 30 days' notice from NCTD to Licensee, NCTD may terminate this Agreement and present Licensee from using or remaining upon the Right-of-Way. If NCTD determines that any default by Licensee does or has the potential to cause a danger to the Right-of- Way or railroad operations, NCTD may immediately and without prior notice to Licensee terminate this Agreement and prevent Licensee from using or remaining 233.3-0906-MISC-POI upon the Right-of-Way, with or without process of law. Upon termination of this Agreement, Licensee shall, at Licensee's sole expense, remove the Facility and all other Licensee improvements in or upon the Right-of-Way and restore the Right-of- Way in a manner satisfactory to NCTD. Should Licensee fail or refuse to comply with the terms of this section, NCTD may, at its option, perform such work, and Licensee shall reimburse NCTD for ail costs and damages so incurred, 12. Service of Notice. Except as otherwise provided in this Agreement, any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery or by certified or registered mail, and shall be deemed sufficiently given if delivered or addressed to Licensee at the address listed below the Licensee's signature or to NCTD at North County Transit District, 810 Mission Avenue, Oceanside, CA 92054, Attention: Manager of Real Estate, Mailed notices shall be deemed given upon actual receipt at the address required, or forty-eight hours following deposit in the mail, postage prepaid, whichever first occurs. Either party may by notice to the other specify a different address for notice purposes. 13. Vibration and Noise From Train Operation; Barricades. Licensee recognizes and acknowledges that railroad tracks are located on or adjacent to the License Area, and that the operation of trains over the tracks does and will produce vibrations which may affect the Facility and Licensee's use of the License Area. With knowledge and understanding of these facts, Licensee by execution of this Agreement, agrees that no legal action or complaint of any kind whatsoever shall be instituted against NCTD by Licensee or on Licensee's behalf as result of vibrations or as a result of the use of the railroad tracks in general. 14. Laws, Venues, and Attorneys' Fees. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Diego, State of California, in the event of any claim, legal action or proceeding between the parties arising under or concerning this License, the prevailing party shall be entitled to reasonable attorneys' fees and expenses as part of the judgment resulting therefrom. 15. Acceptance of License Area, Licensee accepts the License Area in its present physical "as-is" condition, and agrees to make no demands upon NCTD for any improvements or alterations. By signing this License, Licensee represents and warrants that Licensee has independently inspected the License Area and the area immediately surrounding and made all investigations, tests, and observations necessary to satisfy Licensee as to the condition of the License Area, zoning and land use laws, regulations, and ordinances affecting the License Area, and all of the conditions, restrictions, encumbrances, and other matters of record relating to the License Area. Licensee agrees that Licensee is relying solely on Licensee's independent inspection and that NCTD has made no warranty or representation with regard to the License Area. NCTD shall not be responsible for any latent defect or change in condition in the License Area and Licensee's obligations under this 233.3-09Q6-MISC-POI License shall not be diminished on account of any defect in the License Area, any change of condition, or any damages occurring on the License Area. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the License Area, NCTD shall not be liable to Licensee for any damage of any nature whatsoever or to refund any moneys paid hereunder. Licensee hereby releases NCTD from all future claims, actions, or demands that Licensee may have or may hereinafter have, known and unknown, in any way relating to the quality, fitness, or condition of the License Area, and Licensee specifically waives all rights under California Civil Code section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Emergency Number. Licensee shall immediately notify the Dispatcher at (800) 500-7346 if the tracks become damaged, blocked, or fouled in any way. IN WITNESS WHEREOF, the parties have signed below, effective as of the Effective Date, by their duly authorized representatives. North County Transit District aren H. King l / Executive Director Poinsettia Commons LLC, a Delaware Limited Liability Company. SC 102 Poinsettia Limited Partnership A Delaware Limited Partnership, Its sole member >u' TCR Southern California 111, Inc. * A Texas Corporation Its General Partner Licensee's Address: 949 South Coast Dr. SuiteMOO Costa Mesa, CA 92626 First American Title Company 411 Ivy Street San Diego, CA 92101 April 04, 2007 Brad Perozzi Trammell Crow Residential 949 South Coast Drive, Suite 400 Costa Mesa, CA 92626-7836 Customer Reference:Poinsettia Commons LLC KECEIVED APR U2Q07 ENGINEERING DEPARTMENT Title Officer: Phone: Order Number: Roy Provence (619)231-4652 2362446 (11) Escrow Number:2362446 Property:Vacant Land Carlsbad, CA Attached please find the following item(s): Guarantee Thank You for your confidence and support. We at First American Title Company maintain the fundamental principle: Customer First! First American Title Company Form No. 14 CLTA Subdivision Guarantee (4-10-75) Order Number: 2362446 Page Number: 1 SUBDIVISION GUARANTEE Fee: $500.00 Subdivision: Poinsettia Commons First American Title Insurance Company, a California corporation GUARANTEES The County of San Diego and any City within which said subdivision is located in a sum not exceeding $1,000.00. That, according to those public records which, under the recording laws, impart constructive notice of matters affecting the title to the land included within the exterior boundary shown on the map of the above referenced subdivision, the only parties having any record title interest in said land whose signatures are necessary, under the requirements of the Subdivision Map Act, on the certificates consenting to the recordation of said map and offering for dedication any streets, roads, avenues and other easements offered for dedication by said map are: see below Poinsettia Commons, LLC, a Delaware Limited Liability Company, as Owner California Bank & Trust, a California Banking Corporation, as Beneficiary under Deed(s) of Trust recorded March 3, 2006, as Instrument No. 2006-0150919, of Official Records. The map hereinbefore referred to is a subdivision of: LOT 5 OF CARLSBAD TRACT NO. 97-10, POINSETTIA PROPERTIES, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13785, FILED IN THE OFFICE OF THE COUNTY RECORDED OF SAN DIEGO COUNTY ON MAY 21, 1999. Dated: 03-28-2007 at 7:30 A.M. First American We Company Form No. 14 CLTA Subdivision Guarantee (4-10-75) Order Number: 2362446 Page Number: 2 First American Title Insurance Company ATTEST First American Title Company Form No. 14 Order Number: 2362446 CLTA Subdivision Guarantee (4-10-75) Page Number: 3 SCHEDULE OF EXCLUSIONS FROM COVERAGE OF THIS GUARANTEE 1. Except to the extent that specific assurance are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the following: (a) Defects, liens, encumbrances, adverse claims or other matters against the title, whether or not shown by the public records. (b) (1) Taxes or assessments of any taxing authority that levies taxes or assessments on real property; or, (2) Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not the matters excluded under (1) or (2) are shown by the records of the taxing authority or by the public records. (c) (1) Unpatented mining claims; (2) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (3) water rights, claims or title to water, whether or not the matters excluded under (1), (2) or (3) are shown by the public records. 2. Notwithstanding any specific assurances which are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the following: (a) Defects, liens, encumbrances, adverse claims or other matters affecting the title to any property beyond the lines of the land expressly described in the description set forth in Schedule (A), (C) or in Part 2 of this Guarantee, or title to streets, roads, avenues, lanes, ways or waterways to which such land abuts, or the right to maintain therein vaults, tunnels, ramps, or any structure or improvements; or any rights or easements therein, unless such property, rights or easements are expressly and specifically set forth in said description. (b) Defects, liens, encumbrances, adverse claims or other matters, whether or not shown by the public records; (1) which are created, suffered, assumed or agreed to by one or more of the Assureds; (2) which result in no loss to the Assured; or (3) which do not result in the invalidity or potential invalidity of any judicial or non-judicial proceeding which is within the scope and purpose of the assurances provided. (c) The identity of any party shown or referred to in Schedule A. (d) The validity, legal effect or priority of any matter shown or referred to in this Guarantee. GUARANTEE CONDITIONS AND STIPULATIONS 1. Definition of Terms. The following terms when used in the Guarantee mean: (a) the "Assured": the party or parties named as the Assured in this Guarantee, or on a supplemental writing executed by the Company. (b) "land": the land described or referred to in Schedule (A) (C) or in Part 2, and improvements affixed thereto which by law constitute real properly. The term "land" does not include any property beyond the lines of the area described or referred to in Schedule (A) (C) or in Part 2, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways. (c) "mortgage": mortgage, deed of trust, trust deed, or other security instrument. (d) "public records": records established under state statutes at Date of Guarantee for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. (e) "date": the effective date. 2. Notice of Claim to be Given by Assured Claimant. An Assured shall notify the Company promptly in writing in case knowledge shall come to an Assured hereunder of any claim of title or interest which is adverse to the title to the estate or interest, as stated herein, and which might cause loss or damage for which the Company may be liable by virtue of this Guarantee. If prompt notice shall not be given to the Company, then all liability of the Company shall terminate with regard to the manner or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any Assured under this Guarantee unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 3. No Duty to Defend or Prosecute. The Company shall have no duty to defend or prosecute any action or proceeding to which the Assured is a party, notwithstanding the nature of any allegation in such action or proceeding. 4. Company's Option to Defend or Prosecute Actions; Duty of Assured Claimant to Cooperate. Even though the Company has no duty to defend or prosecute as set forth in Paragraph 3 above: (a) The Company shall have the right, at its sole option and cost, to institute and prosecute any action or proceeding, interpose a defense, as limited in (b), or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest as stated herein, or to establish the lien rights of the Assured, or to prevent or reduce loss or damage to the Assured. The Company may take any appropriate action under the terms of this Guarantee, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this Guarantee. If the Company shall exercise its rights under this paragraph, it shall do so diligently. (b) If the Company elects to exercise its options as stated in Paragraph 4(a) the Company shall have the right to select counsel of its choice (subject to the right of such Assured to object for reasonable cause) to represent the Assured and shall not be liable for and will not pay the fees of any other counsel, nor will the Company pay any fees, costs or expenses incurred by an Assured in the defense of those causes of action which allege matters not covered by this Guarantee. (c) Whenever the Company shall have brought an action or interposed a defense as permitted by the provisions of this Guarantee, the Company may pursue any litigation to final determination by a court of competent jurisdiction and expressly reserves the right, in its sole discretion, to appeal from an adverse judgment or order. (d) In all cases where this Guarantee permits the Company to prosecute or provide for the defense of any action or proceeding, an Assured shall secure to the Company the right to so prosecute or provide for the defense of any action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of such Assured for this purpose. Whenever requested by the Company, an Assured, at the Company's expense, shall give the Company all reasonable aid in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as stated herein, or to establish the lien rights of the Assured. If the Company is prejudiced by the failure of the Assured to furnish the required cooperation, the Company's obligations to the Assured under the Guarantee shall terminate. First American Title Company 'V • ' •' Form No. 14 Order Number: 2362446 CLTA Subdivision Guarantee (4-10-75) Page Number: 4 5. Proof of Loss Damage. In addition to and after the notices required under Section 2 of these Conditions and Stipulations have been provided to the Company, a proof of loss or damage signed and sworn to by the Assured shall be furnished to the Company within ninety (90) days after the Assured shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the matters covered by this Guarantee which constitute the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the Assured to provide the required proof of loss or damage, the Company's obligation to such Assured under the Guarantee shall terminate. In addition, the Assured may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Guarantee, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the Assured shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss damage. All information designated as confidential by the Assured provided to the Company, pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the Assured to submit for examination under oath, produce other reasonably requested information of grant permission to secure reasonably necessary information from third patties as required in the above paragraph, unless prohibited by law or governmental regulation, shall terminate any liability of the Company under this Guarantee to the Assured for that claim. 6. Options to Pay or Otherwise Settle Claims: Termination of Liability. In case of a claim under this Guarantee, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Liability or to Purchase the Indebtedness. The Company shall have the option to pay or settle or compromise for or in the name of the Assured any claim which could result in loss to the Assured within the coverage of this Guarantee, or to pay the full amount of this Guarantee or, if this Guarantee is issued for the benefit of a holder of a mortgage or a lienholder, the Company shall have the option to purchase the indebtedness secured by said mortgage or said lien for the amount owing thereon, together with any costs, reasonable attorneys' fees and expenses incurred by the Assured claimant which were authorized by the Company up to the time of purchase. Such purchase, payment or tender of payment of the full amount of the Guarantee shall terminate all liability of the Company hereunder. In the event after notice of claim has been given to the Company by the Assured the Company offers to purchase said indebtedness, the owner of such indebtedness shall transfer and assign said indebtedness, together with any collateral security, to the Company upon payment of the purchase price. Upon the exercise by the Company of the option provided for in Paragraph (a) the Company's obligation to the Assured under this Guarantee for the claimed loss or damage, other than to make the payment required in that paragraph, shall terminate, including any obligation to continue the defense or prosecution of any litigation for which the Company has exercised its options under Paragraph 4, and the Guarantee shall be surrendered to the Company for cancellation. (b) To Pay Otherwise Settle With Parties Other Than the Assured or With the Assured Claimant. To pay or otherwise settle with other parties for or in the name of an Assured claimant any claim Assured against under this Guarantee, together with any costs, attorneys' fees and expenses incurred by the Assured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of the option provided for in Paragraph (b) the Company's obligation to the Assured under this Guarantee for the claimed loss or damage, other than to make the payment required in that paragraph, shall terminate, including any obligation to continue the defense or prosecution of any litigation for which the Company has exercised its options under Paragraph 4. 7. Determination and Extent of Liability. This Guarantee is a contract of Indemnity against actual monetary loss or damage sustained or incurred by the Assured claimant who has suffered loss or damage by reason of reliance upon the assurances set forth in this Guarantee and only to the extent herein described, and subject to the Exclusions From Coverage of This Guarantee. The Liability of the Company under this Guarantee to the Assured shall not exceed the least of: (a) the amount of liability stated in Schedule A or in Part 2; (b) the amount of the unpaid principal indebtedness secured by the mortgage of an Assured mortgagee, as limited or provided under Section 6 of these Conditions and Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the time the loss or damage Assured against by this Guarantee occurs, together with interest thereon; or (c) the difference between the value of the estate or interest covered hereby as stated herein and the value of the estate or interest subject to any defect, lien or encumbrance Assured against by this Guarantee. 8. Limitation of Liability. (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures any other matter Assured against by this Guarantee in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. (b) In the event of any litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title, as stated herein. (c) The Company shall not be liable for loss or damage to any Assured for liability voluntarily assumed by the Assured in settling any claim or suit without the prior written consent of the Company. 9. Reduction of Liability or Termination of Liability. All payments under this Guarantee, except payments made for costs, attorneys' fees and expenses pursuant to Paragraph 4 shall reduce the amount of liability pro tanto. 10. Payment of Loss. (a) No payment shall be made without producing this Guarantee for endorsement of the payment unless the Guarantee has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within thirty (30) days thereafter. 11. Subrogation Upon Payment or Settlement. Whenever the Company shall have settled and paid a claim under this Guarantee, all right of subrogation shall vest in the Company unaffected by any act of the Assured claimant First American Title Company Form No. 14 Order Number: 2362446 CLTA Subdivision Guarantee (4-10-75) Page Number: 5 The Company shall be subrogated to and be entitled to all rights and remedies which the Assured would have had against any person or property in respect to the claim had this Guarantee not been issued. If requested by the Company, the Assured shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation. The Assured shall permit the Company to sue, compromise or settle in the name of the Assured and to use the name of the Assured in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the Assured the Company shall be subrogated to all rights and remedies of the Assured after the Assured shall have recovered its principal, interest, and costs of collection. 12. Arbitration. Unless prohibited by applicable law, either the Company or the Assured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Assured arising out of or relating to this Guarantee, any service of the Company in connection with its issuance or the breach of a Guarantee provision or other obligation. All arbitrable matters when the Amount of Liability is $1,000,000 or less shall be arbitrated at the option of either the Company or the Assured. All arbitrable matters when the amount of liability is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the Assured. The Rules in effect at Date of Guarantee shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permits a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrators) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request 13. Liability Limited to This Guarantee; Guarantee Entire Contract (a) This Guarantee together with all endorsements, if any, attached hereto by the Company is the entire Guarantee and contract between the Assured and the Company. In interpreting any provision of this Guarantee, this Guarantee shall be construed as a whole. (b) Any daim of loss or damage, whether or not based on negligence, or any action asserting such claim, shall be restricted to this Guarantee. (c) No amendment of or endorsement to this Guarantee can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, and Assistant Secretary, or validating officer or authorized signatory of the Company. 14. Notices, Where Sent. All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this Guarantee and shall be addressed to the Company at 2 First American Way, Bldg 2, Santa Ana, California, 92707. First American Title Company Order Number: 2362446 (11) Page Number: 1 Updated 12-11-2006 First American Title Company Bob La Fever Trammell Crow Residential 949 South Coast Drive, Suite 400 Costa Mesa, CA 92626-7836 Phone: Fax: 411 Ivy Street San Diego, CA 92101 Customer Reference: Order Number: Teak Investors 2362446 (11) Title Officer: Phone: Fax No.: E-Mail: Buyer: Owner: Property: Roy Provence (619)231-4652 (866)559-1847 rprovence@firstam .com Poinsettia Commons LLC Vacant Land Carlsbad, CA PRELIMINARY REPORT In response to the above referenced application tor a policy of title insurance, this company hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against toss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms. The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from the office which issued this report. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects, and encumbrances affecting title to the land. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or Commitment should be requested. first American Title Order Number: 2362446 (11) Page Number: 2 Dated as of December 5, 2006 at 7:30 A.M. The form of Policy of title insurance contemplated by this report is: Subdivision Map Processing/Map Guarantee A specific request should be made if another form or additional coverage is desired. Title to said estate or interest at the date hereof is vested in: POINSETTIA COMMONS LLC, A DELAWARE LIMITED LIABILITY COMPANY The estate or interest in the land hereinafter described or referred to covered by this Report is: A fee. The Land referred to herein is described as follows: (See attached Legal Description) At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in said policy form would be as follows: 1. Taxes and assessments. Report to follow. Please verify before closing. 2. The lien of special tax assessed pursuant to Chapter 2.5 commencing with Section 53311 of the California Government Code for Community Facilities District No. 3, as disclosed by Notice of Special Tax Lien recorded April 26,1994 as Instrument No. 1994-277976 and July 27,1995 as Instrument No. 1995-322359, both of Official Records. 3. The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code. 4. The terms and provisions contained in the document entitled "Agreement Between Developer- Owner and the City of Carlsbad for the Payment of a Public Facilities Fee for Outside the Boundaries of Community Facilities District No. 1" recorded October 18,1995 as Instrument No. 95-469812 of Official Records. 5. The terms and provisions contained in the document entitled "Agreement Between Developer- Owner and the City of Carlsbad for the Payment of a Public Facilities Fee for Inside the Boundaries of Community Facilities District No. 1" recorded July 12,19% as Instrument No. 96- 351884 of Official Records. 6. The terms and provisions contained in the document entitled "Memorandum of Post Closing Agreement" recorded February 12,1998 as Instrument No. 98-75725 of Official Records. First American Title Order Number: 2362446 (11) Page Number: 3 7. The effect of a map purporting to show the land and other property, filed as No. 16829 of Record of Surveys. 8. The terms and provisions contained in the document entitled "Reimbursement Agreement (Sewer Lift Station)" recorded July 31, 2001 as Instrument No. 01-534380 of Official Records. 9. An easement for slope and incidental purposes, recorded January 15, 2002 as Instrument No. 02- 33831 of Official Records. In Favor of: City of Carlsbad, a Municipal Corporation Affects: A portion of said land and is more fully described in said document 10. An easement for public street and general utility and incidental purposes, recorded January 15, 2002 as Instrument No. 02-33832 of Official Records. In Favor of: City of Carlsbad, a Municipal Corporation Affects: A portion of said land and is more fully described in said document 11. A deed of trust and financing statement to secure an original indebtedness of $8,902,500.00 recorded March 3, 2006 as Instrument No. 2006-0150919 of Official Records. Dated: March 3, 2006 Trustor: Poinsettia Commons LLC, a Delaware Limited Liability Company Trustee: First American Title Company Beneficiary: California Bank & Trust, a California Banking Corporation Prior to the issuance of any policy of title insurance, the Company will require: 12. With respect to Poinsetda Commons LLC, a limited liability company: a. A copy of its operating agreement and any amendments thereto; b. If it is a California limited liability company, that a certified copy of its articles of organization (LLC-1) and any certificate of correction (LLC-11), certificate of amendment (LLC-2), or restatement of articles of organization (LLC-10) be recorded in the public records; c. If it is a foreign limited liability company, that a certified copy of its application for registration (LLC-5) be recorded in the public records; d. With respect to any deed, deed of trust, lease, subordination agreement or other document or instrument executed by such limited liability company and presented for recordation by the Company or upon which the Company is asked to rely, that such document or instrument be executed in accordance with one of the following, as appropriate: (i) If the limited liability company properly operates through officers appointed or elected pursuant to the terms of a written operating agreement, such document must be executed by at least two duly elected or appointed officers, as follows: the chairman of the board, the president or any vice president, and any secretary, assistant secretary, the chief financial officer or any assistant treasurer; (ii) If the limited liability company properly operates through a manager or managers identified in the articles of organization and/or duly elected pursuant to the terms of a written operating agreement, such document must be executed by at least two such managers or by one manager if the limited liability company properly operates with the existence of only one manager. e. Other requirements which the Company may impose following its review of the material required herein and other information which the Company may require. First American Title Order Number: 2362446 (11) Page Number: 4 INFORMATIONAL NOTES The map attached, if any, may or may not be a survey of the land depicted hereon. First American expressly disclaims any liability for loss or damage which may result from reliance on this map except to the extent coverage for such loss or damage is expressly provided by the terms and provisions of the title insurance policy, if any, to which this map is attached. 1. No known matters otherwise appropriate to be shown have been deleted from this report, which is not a policy of title insurance but a report to facilitate the issuance of a policy of title insurance. For purposes of policy issuance, items none may be eliminated on the basis of an indemnity agreement or other agreement satisfactory to the Company as insurer. First American Title Order Number: 2362446 (11) Page Number: 5 WIRE INSTRUCTIONS for First American Title Company, Demand/Draft Sub-Escrow Deposits San Diego County, California First American Trust, FSB 5 First American Way Santa Ana, CA 92707 ABA 122241255 Credit to First American Title Company Account No. 2000013101 Reference Title Order Number 2362446, and Title Officer Roy Provence Please wire the day before recording. First American Titfe Order Number: 2362446 (11) Page Number: 6 LEGAL DESCRIPTION Real property in the City of Carlsbad, County of San Diego, State of California, described as follows: LOT 5 OF CARLSBAD TRACT NO. 97-10, POINSETTIA PROPERTIES, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13785, FILED IN THE OFFICE OF THE COUNTY RECORDED OF SAN DIEGO COUNTY ON MAY 21, 1999. APN: 214-450-30-00 First American Title Order Number: 2362446 (11) Page Number: 7 NOTICE Section 12413.1 of the California Insurance Code, effective January 1,1990, requires that any title insurance company, underwritten title company, or controlled escrow company handling funds in an escrow or sub-escrow capacity, wait a specified number of days after depositing funds, before recording any documents in connection with the transaction or disbursing funds. This statute allows for funds deposited by wire transfer to be disbursed the same day as deposit. In the case of cashier's checks or certified checks, funds may be disbursed the next day after deposit. In order to avoid unnecessary delays of three to seven days, or more, please use wire transfer, cashier's checks, or certified checks whenever possible. If you have any questions about the effect of this new law, please contact your local First American Office for more details. First American Titie Order Number: 2362446 (11) Page Number: 8 EXHIBIT A LIST OF PRINTED EXCEPTIONS AND EXCLUSIONS (BY POLICY TYPE) 1. CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY - 1990 SCHEDULES EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notice of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in possession thereof. 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the public records. EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (Hi) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land Is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect; lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage or for the estate or interest insured by this policy. 4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with applicable "doing business" laws of the state in which the land is situated. 5. Invalidity or Unenforceability of the lien of the insured mortgage, or daim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6. Any daim, which arises out of the transaction vesting in the insured the estate or interest insured by their policy or the transaction creating the interest of the insured lender, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws. 2. AMERICAN LAND TITLE ASSOCIATION OWNERS POLICY FORM B - 1970 SCHEDULE OF EXCLUSIONS FROM COVERAGE 1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions of area of the land, or the effect of any violation of any such law, ordinance or governmental regulation. 2. Rights of eminent domain or governmental tights of police power unless notice of the exercise of such rights appears in the public records at Date of Policy. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting in no loss or damage to the insured claimant; (d) attaching or First American Title Order Number: 2362446 (11) Page Number: 9 created subsequent to Date of Policy; or (e) resulting in toss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 3. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY FORM B - 1970 WITH REGIONAL EXCEPTIONS When the American Land Title Association policy is used as a Standard Coverage Policy and not as an Extended Coverage Policy the exclusions set forth in paragraph 2 above are used and the following exceptions to coverage appear in the policy. SCHEDULE B This policy does not insure against loss or damage by reason of the matters shown in parts one and two following: Part One 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. 2. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of said land or by making inquiry of persons in possession thereof. 3. Easements, claims of easement or encumbrances which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by public records. 5. Unpatented mining daims; reservations or exceptions in patents or in Acts authorizing the issuance thereof; water rights, claims or title to water. 6. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 4. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1970 WITH A.L.T.A. ENDORSEMENT FORM 1 COVERAGE SCHEDULE OF EXCLUSIONS FROM COVERAGE 1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law ordinance or governmental regulation. 2. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public records at Date of Policy. 3. Defects, liens, encumbrances, adverse daims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant, (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy or acquired the insured mortgage and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder, (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent insurance is afforded herein as to any statutory lien for labor or material or to the extent insurance is afforded herein as to assessments for street improvements under construction or completed at Date of Policy). 4. Unenforceability of the lien of the insured mortgage because of failure of the insured at Date of Policy or of any subsequent owner of the indebtedness to comply with applicable 'doing business" laws of the state in which the land is situated. 5. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1970 WITH REGIONAL EXCEPTIONS When the American Land Title Association Lenders Policy is used as a Standard Coverage Policy and not as an Extended Coverage Policy, the exclusions set forth in paragraph 4 above are used and the following exceptions to coverage appear in the policy. SCHEDULE B This policy does not insure against toss or damage by reason of the matters shown in parts one and two following: Part One 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. 2. Any facts, rights, interests, or daims which are not shown by the public records but which could be ascertained by an inspection of said land or by making inquiry of persons in possession thereof. 3. Easements, claims of easement or encumbrances which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by public records. 5. Unpatented mining claims; reservations or exceptions in patents or in Acts authorizing the issuance thereof; water rights, daims or title to water. 6. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown by the public records. First American Title Order Number: 2362446 (11) Page Number: 10 6. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1992 WITH A.LT.A. ENDORSEMENT FORM 1 COVERAGE EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay toss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (I) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (Hi) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy; (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Deflects, liens, encumbrances, adverse claims, or other matters: (a) whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of the insured mortgage over any statutory lien for services, labor or material or the extent insurance is afforded herein as to assessments for street improvements under construction or completed at date of policy); or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage. 4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with the applicable "doing business" laws of the state in which the land is situated. 5. Invalidity or unenforosability of the lien of the insured mortgage, or daim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6. Any statutory lien for services, labor or materials (or the daim of priority of any statutory lien for services, labor or materials over the lien of the insured mortgage) arising from an improvement or work related to the land which is contracted for and commenced subsequent to Date of Policy and is not financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance. 7. Any daim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on: (i) the transaction creating the interest of the insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the subordination of the interest of the insured mortgagee as a result of the application of the doctrine of equitable subordination; or (Hi) the transaction creating the interest of the insured mortgagee being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. 7. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1992 WITH REGIONAL EXCEPTIONS When the American Land Title Association policy is used as a Standard Coverage Policy and not as an Extended Coverage Policy the exclusions set forth in paragraph 6 above are used and the following exceptions to coverage appear in the policy. SCHEDULE B This policy does not insure against toss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. 2. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of said land or by making inquiry of persons in possession thereof. 3. Easements, claims of easement or encumbrances which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by public records. 5. Unpatented mining claims; reservations or exceptions in patents or in Acts authorizing the issuance thereof; water rights, claims or title to water. 6. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown by the public records. 8. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY - 1992 First American Title Order Number: 2362446 (11) Page Number: 11 EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay toss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (Hi) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims, or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no toss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 4. Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on: (i) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordatkxi to impart notice to a purchaser for value or a judgment or lien creditor. 9. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY - 1992 WITH REGIONAL EXCEPTIONS When the American Land Title Association policy is used as a Standard Coverage Policy and not as an Extended Coverage Policy the exclusions set forth in paragraph 8 above are used and the following exceptions to coverage appear in the policy. SCHEDULES This policy does not insure against toss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: Part One: 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. 2. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of said land or by making inquiry of persons in possession thereof. 3. Easements, claims of easement or encumbrances which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by public records. 5. Unpatented mining claims; reservations or exceptions in patents or in Acts authorizing the issuance thereof; water rights, claims or title to water. 6. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown by the public records. 10. AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY - 1987 EXCLUSIONS In addition to the Exceptions in Schedule B, you are not insured against toss, costs, attorneys' fees and expenses resulting from: 1. Governmental police power, and the existence or violation of any law or government regulation. This includes building and zoning ordinances and also laws and regulations concerning: * land use * land division * improvements on the land * environmental protection This exclusion does not apply to violations or the enforcement of these matters which appear in the public records at Policy Date. This exclusion does not limit the zoning coverage described in items 12 and 13 of Covered Title Risks. first American We Order Number: 2362446 (11) Page Number: 12 2. The right to take the land by condemning it, unless: * a notice of exercising the right appears in the public records on the Policy Date * the taking happened prior to the Policy Date and is binding on you if you bought the land without knowing of the taking. 3. Title Risks: * that are created, allowed, or agreed to by you * that are known to you, but not to us, on the Policy Date - unless they appeared in the public records * that result in no loss to you * that first affect your title after the Policy Date - this does not limit the labor and material lien coverage in Item 8 of Covered Title Risks 4. Failure to pay value for your title. 5. Lack of a right: * to any land outside the area specifically described and referred to in Item 3 of Schedule A, or * in streets, alleys, or waterways that touch your land This exclusion does not limit the access coverage in Item 5 of Covered Tide Risks. 11. EAGLE PROTECTION OWNER'S POLICY CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE - 1998 ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE - 1998 Covered Risks 14 (Subdivision Law Violation). 15 (Building Permit). 16 (Zoning) and 18 (Encroachment of boundary wads or fences) are subject to Deductible Amounts and Maximum Dollar Limits of Liability EXCLUSIONS In addition to the Exceptions in Schedule B, you are not insured against toss, costs, attorneys' fees, and expenses resulting from: 1. Governmental police power, and the existence or violation of any law or government regulation. This includes ordinances, laws and regulations concerning: a. building b. zoning c. land use d. improvements on the land e. land division f. environmental protection This exclusion does not apply to violations or the enforcement of these matters if notice of the violation or enforcement appears in the Public Records at the Policy Date. This exclusion does not limit the coverage described in Covered Risk 14,15,16,17 or 24. 2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes. This Exclusion does not apply to violations of building codes if notice of the violation appears in the Public Records at the Policy Date. 3. The right to take the Land by condemning it, unless: a. a notice of exercising the right appears in the Public Records at the Policy Date; or b. the taking happened before the Policy Date and is binding on You if You bought the Land without Knowing of the taking. 4. Risks: a. that are created, allowed, or agreed to by You, whether or not they appear in the Public Records; b. that are Known to You at the Policy Date, but not to Us, unless they appear in the Public Records at the Policy Date; c. that result in no loss to You; or d. that first occur after the Policy Date - this does not limit the coverage described in Covered Risk 7, S.d, 22, 23, 24 or 25. 5. Failure to pay value for Your Title. 6. Lack of a right: a. to any Land outside the area specifically described and referred to in paragraph 3 of Schedule A; and b. in streets, alleys, or waterways that touch the Land. This exclusion does not limit the coverage described in Covered Risk 11 or 18. 12. SECOND GENERATION EAGLE LOAN POLICY AMERICAN LAND TITLE ASSOCIATION EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (10/13/01) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay toss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the Land; (iii) a separation in ownership or a change in the dimensions or area of the Land or any parcel of which the Land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the Land has been recorded in the Public Records at Date of Policy. This exclusion First American We Order Number: 2362446 (11) Page Number: 13 does not limit the coverage provided under Covered Risks 12, 13,14 and 16 of this policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the Public Records at Date of Policy. This exclusion does not limit the coverage provided under Covered Risks 12,13,14 and 16 of this policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the Public Records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without Knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (this paragraph does not limit the coverage provided under Covered Risks 8,16,18, 19, 20, 21, 22, 23,24, 25 and 26); or (e) resulting in loss or damage which would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceabilrty of the lien of the Insured Mortgage because of the inability or failure of the Insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with applicable doing business laws of the state in which the Land is situated. 5. Invalidity or unenforceability of the lien of the Insured Mortgage, or daim thereof, which arises out of the transaction evidenced by the Insured Mortgage and is based upon usury, except as provided in Covered Risk 27, or any consumer credit protection or truth in lending law. 6. Real property taxes or assessments of any governmental authority which become a lien on the Land subsequent to Date of Policy. This exclusion does not limit the coverage provided under Covered Risks 7,8 (e) and 26. 7. Any daim of invalidity, unenforceability or lack of priority of the lien of the Insured Mortgage as to advances or modifications made after the Insured has Knowledge that the vestee shown in Schedule A is no longer the owner of the estate or interest covered by this policy. This exclusion does not limit the coverage provided in Covered Risk 8. 8. Lack of priority of the lien of the Insured Mortgage as to each and every advance made after Date of Policy, and all interest charged thereon, over liens, encumbrances and other matters affecting tttte, the existence of which are Known to the Insured at: (a) The time of the advance; or (b) The time a modification is made to the terms of the Insured Mortgage which changes the rate of interest charged, if the rate of interest is greater as a result of the modification than it would have been before the modification. This exdusion does not limit the coverage provided in Covered Risk 8. 9. The failure of the residential structure, or any portion thereof to have been constructed before, on or after Date of Policy in accordance with applicable building codes. This exdusion does not apply to violations of building codes if notice of the violation appears in the Public Records at Date of Policy. SCHEDULES This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1. The following existing statutes, reference to which are made part of the ALTA 8.1 Environmental Protection Uen Endorsement incorporated into this Policy following item 28 of Covered Risks: NONE. 13. SECOND GENERATION EAGLE LOAN POLICY AMERICAN LAND TITLE ASSOCIATION EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (10/13/01) WITH REGIONAL EXCEPTIONS When the American Land Title Association loan policy with EAGLE Protection Added is used as a Standard Coverage Policy and not as an Extended Coverage Policy the exclusions set forth in paragraph 12 above are used and the following exceptions to coverage appear in the policy. SCHEDULE B This policy does not insure against toss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: Part One: 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. 2. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of said land or by making inquiry of persons in possession thereof. 3. Easements, daims of easement or encumbrances which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by public records. 5. Unpatented mining claims; reservations or exceptions in patents or in acts authorizing the issuance thereof; water rights, daims or title to water. 6. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown by the public records. Part Two: First American Title The following existing statutes, reference to which are made part of the ALTA 8.1 Environmental Protection Lien Endorsement incorporated into this Policy following item 28 of Covered Risks: None. First American Title PRIVACY POLICY We Are Committed to Safeguarding Customer Information In order to better serve your needs now and in the future, we may ask you to provide us with certain information. We understandthat you may be concerned about what we will do with such information - particularly any personal or financial information. Weagree that you have a right to know how we will utilize the personal information you provide to us. Therefore, together with our parent company, The First American Corporation, we have adopted this Privacy Policy to govern the use and handling of yourpersonal information. Applicability This Privacy Policy governs our use of the information which you provide to us. It does not govern the manner in which we may use information we nave obtained from any other source, such as information obtained from a public record or from another person or entity. First American has also adopted broader guidelines that govern our use of personal information regardless of its source.First American calls these guidelines its Fair Information Values, a copy of which can be found on our website at www.firstam.com. Types of Information Depending upon which of our services you are utilizing, the types of nonpublic personal information that we may collect include: • Information we receive from you on applications, forms and in other communications to us, whether in writing, in person,by telephone or any other means; • Information about your transactions with us, our affiliated companies, or others; and • Information we receive from a consumer reporting agency. Use of Information We request information from you for our own legitimate business purposes and not for the benefit of any nonaffiliated party. Therefore, we will not release your information to nonaffiliated parties except: (1) as necessary for us to provide the product orservice you have requested of us; or (2) as permitted by law. We may, however, store such information indefinitely, including theperiod after which any customer relationship has ceased. Such information may be used for any internal purpose, such as quality control efforts or customer analysis. We may also provide all of the types of nonpublic personal information listed above to one or more of our affiliated companies. Such affiliated companies include financial service providers, such as title insurers, property andcasualty insurers, and trust and investment advisory companies, or companies involved in real estate services, such as appraisalcompanies, home warranty companies, and escrow companies. Furthermore, we may also provide all the information we collect, as described above, to companies that perform marketing services on our behalf, on behalf of our affiliated companies, or to other financial institutions with whom we or our affiliated companies have joint marketing agreements. Former Customers Even if you are no longer our customer, our Privacy Policy will continue to apply to you. Confidentiality and Security We will use our best efforts to ensure that no unauthorized parties have access to any of your informatipn. We restrict access to nonpublic personal information about you to those individuals and entities who need to know that information to provide products orservices to you. We will use our best efforts to train and oversee our employees and agents to ensure that your information will behandled responsibly and in accordance with this Privacy Policy and First American's Fair Information Values. We currently maintainphysical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal information. © 2001 The First American Corporation • All Rights Reserved