HomeMy WebLinkAboutCT 94-02; Pacific Pointe; Tentative Map (CT) (12)TELECOPIER (714) 851-1554
(714) 851-3844
(714) 757-1225
LAW OFFICES
PALMIERI, TYLER, WIENER, WILHELM & WALDRON
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
2.6O3 MAIN STREET
EAST TOWER - SUITE I3OO
P. O. BOX 19713
IRVINE, CALIFORNIA 92714
(714) S5I-9AOO
June 30, 1995
WRITER'S DIRECT
DIAL NUMBER
851-7251
REFER TO FILE NO.
30283001
Mr. Michael J. Holzmiller
Planning Director
City of Carlsbad
2075 Las Palmas Drive
Carlsbad, California 92009-1576
Re: CT 94-02/PUD 94-01 - Pacific Pointe
Dear Mr. Holzmiller:
Pursuant to Item 14 of Planning Commission Resolution No. 3699,
please find enclosed for your review the proposed Declaration of
Covenants, Conditions and Restrictions for the above-referenced
project.
Should you have any questions or comments, please feel free to
contact me at your earliest opportunity.
,//s&<*4L.
ra}i M. Cott^e
Legal Assistant
DMCdg
CC: Jill Parker (w/encl.)
Dennis G. Tyler, Esq.
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
PALMIERI, TYLER, WIENER,
WILHELM & WALDRON (DGT)
2603 Main Street
East Tower - Suite 1300
Irvine, CA 92714
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
PACIFIC POINTE AT CARLSBAD HOMEOWNERS ASSOCIATION
TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE I DEFINITIONS 3
Section 1. Association 3
Section 2. Board of Directors 3
Section 3. City 3
Section 4. Common Area 3
Section 5. Declarant 3
Section 6. Declaration 3
Section 7. Improvement 3
Section 8. Institutional Holder 3
Section 9. Lot 4
Section 10. Member 4
Section 11. Mortgage 4
Section 12. Owner 4
Section 13. Properties 4
Section 14. Regular Assessment 4
Section 15. Reimbursement Assessment 4
Section 16. Special Assessment 4
ARTICLE II NATURE AND PURPOSE OF COVENANTS 5
ARTICLE III USE RESTRICTIONS 6
Section 1. Single Family Residence 6
Section 2. Business or Commercial Activity 6
Section 3. Nuisances 6
Section 4. Signs 6
Section 5. Parking and Vehicular Restrictions ... 7
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Section 6.
Section 7.
Section 8.
Section 9.
Section 10,
Section 11.
Section 12,
Section 13,
Section 14,
Section 15,
Section 16,
Section 17,
Section 18,
ARTICLE IV
Section 1.
Section 2.
Section 3,
Section 4.
Section 5.
Section 6.
ARTICLE V
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Animal Restrictions 7
Trash 7
Temporary Buildings 8
Common Area Facilities 8
Outside Installations 8
Insurance Rates 8
Drilling 8
Drainage 9
Violation of Governing Instruments ... 9
Construction by Declarant 9
Development and Maintenance of Lot A . . 10
Landscape Maintenance 10
Restriction on Improvements within Sewer
Easement Area 10
MEMBERSHIP AND VOTING RIGHTS 11
Organization 11
Membership 11
Voting Rights 11
Two Classes of Memberships 11
Special Class A Voting Rights 12
Vesting of Voting Rights 12
COVENANT FOR MAINTENANCE ASSESSMENTS . . 13
Covenant to Pay Assessment 13
Purpose of Assessments 13
Amount of Regular Assessments and
Limitation on Increases in Regular
Assessments 13
Special Assessments for Capital
Improvements and Limitation on Increases
In Special Assessments 14
Special Quorum and Meeting Requirements
for Increases In Assessments 14
Exceptions from Limitation on Assessment
Increases 14
Reimbursement Assessments 15
Uniform Rate of Assessment 15
Date of Commencement of Regular
Assessments: Due Dates 15
Certification of Payment 16
Exemption from Regular Assessments -
Dwelling Unit 16
Exemption from Regular Assessments -
Common Area 16
Reserves 17
Effect of Nonpayment of Assessments;
Remedies of the Association 17
Subordination to Certain Trust Deeds . . 19
Exempt Property 20
Enforcement of Reimbursement Liens ... 20
Delivery by Owner 20
Late Charges and Interest on Delinquent
Assessments 21
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ARTICLE VI
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10,
ARTICLE VII
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
ARTICLE VIII
Section 1.
Section 2.
ARTICLE IX
ARTICLE X
ARTICLE XI
ARTICLE XII
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11,
ARTICLE XIII
DUTIES AND POWERS OF THE ASSOCIATION . . 22
General Powers of the Association .... 22
Contracts of the Association 22
General Powers and Duties of
Association 22
Restrictions on Power of the Board ... 24
Limitation on Board Authority to
Contract 24
Association Rules 24
Entry Onto Lots 25
Damage from Wood-Destroying Pests .... 25
Association Documents to Declarant ... 26
Maintenance of Perimeter Walls and
Fences 26
INSURANCE 27
Types 27
Waiver by Members 27
Other Insurance; Annual Review 28
Premiums and Proceeds 28
Payment of Taxes or Premiums by
Institutional Holders of First
Mortgages 28
Annual Notification of Insurance .... 29
DAMAGE AND DESTRUCTION AFFECTING COMMON
AREA 30
Consent of Owners to Rebuild 30
No Consent Required With Adequate
Insurance 30
EMINENT DOMAIN 31
ARCHITECTURAL CONTROL 32
NOTICES 33
RIGHTS OF LENDERS 34
Notice to Institutional Holders of
Default 34
Assessments on Foreclosure 34
Right of First Refusal 34
Required Consent of Owners 34
Rights of Institutional Holders 35
Payment of Taxes and Insurance Premiums . 35
Priority on Distribution of Proceeds . . 35
Notice of Destruction or Taking 36
Insurance 36
Mortgage Protection Clause 36
Conflicts 36
ENFORCEMENT OF BONDED OBLIGATIONS . . .37
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ARTICLE XIV
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
ARTICLE XV
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
ARTICLE XVI
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
EASEMENTS AND OWNERS7 PROPERTY RIGHTS . . 38
Owners' Easements of Enjoyment 38
Waiver of Use 39
Owners' Rights and Duties: Utilities . . 39
Common Area Easements 40
Party Walls and Fences 40
Creation of Easements 40
COMPLIANCE WITH CIVIL CODE SECTIONS
1354, 1365 AND 1365.5 41
Budgets and Financial Statements .... 41
Certification of Report 42
Alternative Financial Statements .... 42
Minutes 43
Policies on Remedies 43
Fiscal Duties of Board 43
Withdrawal of Funds from the
Association's Reserve Accounts 44
GENERAL PROVISIONS 46
Enforcement 46
Severability 46
Term 46
Amendments 46
Nonliability of Officials 47
Construction 47
Singular Includes Plural 47
Nuisance 47
Conflicts 47
Attorneys' Fees 47
The Declaration 48
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,.. uu,<.,, ,J
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
PACIFIC POINTE AT CARLSBAD HOMEOWNERS ASSOCIATION
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
is made this day of , 1995, by LMD
PACIFIC POINTE, LLC, a California limited liability company
("Declarant").
RECITALS :
A. Declarant is the owner of certain real property in the
City of Carlsbad, County of San Diego, State of California, described
as Lots 1 through 6 and Lot A of City of Carlsbad Tract 94-02,
according to Map thereof No. , filed in the Office of the
County Recorder of San Diego County (the
"Properties").
B. Declarant has deemed it desirable to impose a general
plan for the improvement and development of the Properties as a
planned development and the adoption and establishment of covenants,
conditions and restrictions upon the real property and each and every
Lot and portion thereof and upon the use, occupancy and enjoyment
thereof, all for the purpose of enhancing and protecting the value,
desirability and attractiveness of the Properties.
C. Declarant has deemed it desirable for the efficient
preservation of the value, desirability and attractiveness of the
Properties, pursuant to the provisions of this Declaration to create
a corporation to which should be delegated and assigned the powers of
maintaining certain Common Area within the Properties as hereinafter
provided, and administering and enforcing these covenants, conditions
and restrictions and collecting and disbursing funds pursuant to the
assessment and charges hereinafter created and referred to.
D. PACIFIC POINTE AT CARLSBAD HOMEOWNERS ASSOCIATION, a
nonprofit mutual benefit corporation, has been incorporated under the
laws of the State of California for the purpose of exercising the
powers and functions aforesaid.
E. Declarant hereby declares that all of the Properties
shall be held, sold, conveyed, encumbered, hypothecated, leased,
used, occupied and improved subject to the following easements,
restrictions, covenants, conditions and equitable servitudes, all of
which are for the purpose of uniformly enhancing and protecting the
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value, attractiveness and desirability of the Properties, in
furtherance of a general plan for the protection, maintenance,
subdivision, improvement and sale of the Properties or any portion
thereof. The covenants, conditions, restrictions, reservations,
easements and equitable servitudes set forth herein shall run with
the Properties, shall be enforceable equitable servitudes, unless
unreasonable, and shall be binding upon all persons having any right,
title or interest in the Properties, or any part thereof, their
heirs, successors and assigns; shall inure to the benefit of every
portion of the Properties and any interest therein; and shall inure
to the benefit of and be binding upon Declarant, each Owner and their
respective heirs, executors and administrators; may be enforced by
Declarant, by any Owner or by the Association (as hereinafter
defined).
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ARTICLE I
DEFINITIONS
Section 1. Association. The term "Association" as used
herein shall mean and refer to PACIFIC POINTE AT CARLSBAD HOMEOWNERS
ASSOCIATION, a nonprofit mutual benefit corporation, its successors
and assigns.
Section 2. Board of Directors. The term "Board of
Directors" or "Board" as used herein shall mean and refer to the duly
elected Board of Directors of the Association.
Section 3. City. The term "City" as used herein shall
mean and refer to the City of Carlsbad, California, a municipal
corporation of the State of California.
Section 4. Common Area. The term "Common Area" as used
herein shall mean all the real property and improvements, which are
owned in fee or by easement by the Association for the common use and
enjoyment of all of the Owners. The Common Area to be so owned by
the Association at the time of the conveyance of the first Lot within
the Properties shall include that certain real property located in
the City of Carlsbad, County of San Diego, State of California,
described more particularly as follows: Lot A of City of Carlsbad
Tract 94-02, according to Map thereof No. , filed in the
Office of the County Recorder of San Diego County
Section 5. Declarant. The term the "Declarant" as used
herein shall mean and refer to LMD PACIFIC POINTE, LLC, a California
limited liability company, its successors and assigns, if such
successors or assigns should acquire more than one undeveloped Lot
from the Declarant for the purpose of development.
Section 6. Declaration. The term "covenants" and/or
"Declaration" as used herein shall mean and refer collectively to the
covenants, conditions, restrictions, reservations, easements, liens
and charges imposed by or expressed in this Declaration.
Section 7. Improvement. The term "Improvement" as used
herein shall mean any structure or appurtenance thereto of every type
and kind, including but not limited to buildings, walkways, sprinkler
pipes, garages, room additions, patio covers, swimming pools, spas,
recreational facilities, roads, driveways, parking areas, fences,
screening walls, retaining walls, stairs, decks, landscaping,
antenna, hedges, windbreaks, plantings, planted trees and shrubs,
poles, signs, exterior air conditioning and water softening fixtures
or equipment.
Section 8. Institutional Holder. The term
"Institutional Holder" as used herein shall mean and refer to any
holder (beneficiary) of a first deed of trust which encumbers a Lot,
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which holder is a bank or savings and loan association or established
mortgage company, or other entity chartered under federal or state
laws, any corporation or insurance company, or any federal or state
agency.
Section 9. Lot. The term "Lot" as used herein shall
mean and refer to any numbered plot of land shown upon any recorded
subdivision map of the Properties (with the exception of the public
streets or alleys and the Common Area).
Section 10. Member. The term "Member" shall mean and
refer to those persons entitled to membership in the Association as
provided in this Declaration and in the Association Articles of
Incorporation and By-Laws.
Section 11. Mortgage. The term "Mortgage" as used
herein shall mean and refer to any duly recorded and valid mortgage
or deed of trust encumbering a Lot.
Section 12. Owner. The term "Owner" as used herein
shall mean and refer to the record Owner, whether one or more persons
or entities, of a fee simple title to any Lot which is a part of the
Properties, including contract purchasers, but excluding those having
such interest merely as security for the performance of an
obligation.
Section 13. Properties. The term "Properties" as used
herein shall mean and refer to that certain real property in the City
of Carlsbad, County of San Diego, State of California, described as
Lots 1 through 6 and Lot A of City of Carlsbad Tract 94-02, according
to Map thereof No. , filed in the Office of the County
Recorder of San Diego County .
Section 14. Regular Assessment. The term "Regular
Assessment" as used herein shall mean and refer to the amount which
is to be paid by each Owner to the Association for common expenses as
provided by the terms of this Declaration.
Section 15. Reimbursement Assessment. The term
"Reimbursement Assessment" as used herein shall mean a charge against
each Owner and his Lot for the purpose of reimbursing the Association
for any costs incurred by the Association on behalf of an individual
Owner. A Reimbursement Assessment may also be levied by the
Association for purposes of collecting any monetary penalties which
may be imposed by the Association against an Owner who fails to
comply with provisions of this Declaration, the determinations of the
Board, or any rule or regulation adopted by the Association.
Section 16. Special Assessment. The term "Special
Assessment" as used herein shall mean a charge against each Owner and
his Lot, representing a portion of the cost to the Association for
installation or construction of any capital improvements on any of
the Common Area which the Association may from time to time authorize
pursuant to the provisions of this Declaration.
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ARTICLE II
NATURE AND PURPOSE OF COVENANTS
The covenants, conditions and restrictions set forth in
this Declaration constitute a general scheme for the development,
protection and maintenance of the Properties to enhance the value,
desirability and attractiveness of the Lots for the benefit of all
Owners of Lots therein. These covenants, conditions and restrictions
are imposed upon Declarant and upon the Owners of all Lots. Said
covenants, conditions and restrictions are for the benefit of all
Lots, and shall bind the Owners of all such Lots. Such covenants,
conditions and restrictions shall be a burden upon and a benefit to
not only the original Owner of each Lot, but also his successors and
assigns. All such covenants, conditions and restrictions are
intended as and are hereby declared to be covenants running with the
land or equitable servitudes upon the land, as the case may be.
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ARTICLE III
USE RESTRICTIONS
All real property within the Properties shall be held, used
and enjoyed subject to the following limitations and restrictions.
Section 1. Single Family Residence. Each Lot shall be
used as a residence for a single family and for no other purpose.
Section 2. Business or Commercial Activity. No part of
the Properties shall ever be used or caused to be used or allowed or
authorized in any way, directly or indirectly, for any business,
commercial, manufacturing, mercantile, storage, vending or other such
nonresidential purposes; except Declarant, its successors or assigns,
may use any portion of the Properties for a model home site, and
display and sales office during the construction and sales period.
The provisions of this Section shall not preclude professional and
administrative occupations without external evidence thereof, for so
long as such occupations are in conformance with all applicable
governmental ordinances and are merely incidental to the use of the
dwelling unit as a residential home.
Section 3. Nuisances. No noxious or offensive activity
(including but not limited to the repair of motor vehicles) shall be
carried on, in or upon any Lot or the Common Area, nor shall anything
be done therein which may be or become an unreasonable annoyance or a
nuisance to any other Owner. Without limiting the generality of the
foregoing provisions, no loud noises or noxious odors, no exterior
speakers, horns, whistles, bells or other sound devices (other than
security devices used exclusively for security purposes), noisy or
smoky vehicles, large power equipment or large power tools,
unlicensed off-road motor vehicles or items which may unreasonably
interfere with television or radio reception of any Owner in the
Properties, shall be located, used or placed on any portion of the
Properties, or exposed to the view of other Owners without the prior
written approval of the Board. The Board of Directors shall have the
right to determine in accordance with the By-Laws if any noise, odor,
interference or activity producing such noise, odor or interference
constitutes a nuisance.
Section 4. Signs. No sign, poster, display, billboard
or other advertising device of any kind shall be displayed to the
public view on any portion of the Properties or any Lot, without the
prior written consent of the Board, except for the following: (i)
one sign for each dwelling unit, of not more than six (6) square
feet, plain block letters, advertising the dwelling unit for sale or
rent, or (ii) signs, regardless of size or number, used by Declarant,
its successors or assigns, to advertise the Properties during
construction and sale period. All signs or billboards and the
conditions promulgated for the regulation thereof shall conform to
the requirements of all applicable governmental ordinances.
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Section 5. parking and Vehicular Restrictions. No
Owner shall park, store or keep any vehicle, except wholly within the
parking area designated therefor, and any inoperable vehicle shall be
stored only in enclosed garages. No Owner shall park, store or keep
on any property or street (public or private) within the Properties
any large commercial-type vehicle (including, but not limited to, any
dump truck, cement mixer truck, oil or gas truck or delivery truck),
any recreational vehicle (including, but not limited to, any camper
unit, motor home), any bus, trailer, trailer coach, camp trailer,
boat, aircraft, mobile home, inoperable vehicle or any other similar
vehicle or any vehicular equipment, mobile or otherwise, deemed to be
a nuisance by the Board, upon any unenclosed parking space, so as to
be visible from anywhere in the Properties. The above excludes
camper trucks and similar vehicles up to and including three-quarter
(3/4) ton when used for everyday-type transportation and subject to
approval by the Board. No Owner of a Lot shall conduct repairs or
restorations of any motor vehicle, boat, trailer, aircraft or other
vehicle upon any portion of any Lot or upon the Common Area, except
wholly within the Owner's garage, and then only when the garage door
is closed; provided, however, that such activity shall at no time be
permitted if it is determined by the Board or its agent to be a
nuisance. Garage doors shall remain closed except for reasonable
periods while the garages are being used.
Section 6. Animal Restrictions. No insects, reptiles,
poultry or animals of any kind shall be raised, bred or kept on any
Lot or the Common Area, except usual and ordinary dogs, cats, fish,
birds and other household pets (excluding, without limitation,
equine, bovine, sheep, swine, goats and other such animals) may be
kept on Lots, provided that they are not kept, bred or maintained for
commercial purposes or in unreasonable quantities, nor in violation
of the rules and regulations adopted by the Association. As used in
this Declaration, "unreasonable quantities" shall ordinarily mean
more than two (2) pets per household, provided, however, that the
Association (or such other person or entity as the Association may
from time to time designate) may determine that a reasonable number
in any instance may be more or less. The Association, acting through
the Board of Directors, shall have the right to prohibit maintenance
of any animal which constitutes, in the opinion of the Board, a
nuisance to any other Owner. Animals belonging to Owners, occupants
or their licensees, tenants or invitees within the Properties must be
either kept within an enclosure, an enclosed yard or on a leash being
held by a person capable of controlling the animals. Furthermore,
any Owner shall be absolutely liable to each and all remaining
Owners, their families, guests, tenants and invitees, for any
unreasonable noise or damage to person or property caused by any
animals brought or kept upon the Properties by an Owner or by members
of his family, his tenants or his guests; and it shall be the
absolute duty and responsibility of each such Owner to clean up after
such animals which have used any portion of the Common Area or any
portion of another's Lot.
Section 7. Trash. No rubbish, trash or garbage or
other waste material shall be kept or permitted upon any Lot or
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Common Area, except in sanitary containers located in appropriate
areas screened and concealed from view, and no odor shall be
permitted to arise therefrom so as to render the Properties, or any
portion thereof, unsanitary, unsightly, offensive or detrimental to
any other property in the vicinity thereof or to its occupants. Such
containers shall be exposed to the view of neighboring Lots only when
set out for a reasonable period of time (not to exceed twenty-four
(24) hours before and after scheduled trash collection hours). There
shall be no exterior fires whatsoever except barbecue fires contained
with receptacles therefor and fire pits in the enclosed yards
designed in such a manner that they do not create a fire hazard. No
clothing or household fabrics shall be hung, dried or aired in such a
way in the Properties as to be visible to other property, and no
lumber, grass, shrub or tree clippings or plant waste, metals, bulk
material or scrap or refuse or trash shall be kept, stored or allowed
to accumulate on any portion of the Properties except within an
enclosed structure or appropriately screened from view.
Section 8. Temporary Buildings. No temporary
outbuilding, tent, shack, shed or other temporary building or
improvement of any kind shall be placed upon any portion of the
Properties. No garage, trailer, camper, motor home or recreational
vehicle shall be used as a residence in the Properties, either
temporarily or permanently.
Section 9. Common Area Facilities. Nothing shall be
altered or constructed in or removed from the Common Area except upon
the written consent of the Board, subject to the provisions of this
Declaration limiting construction on portions of the Common Area.
Section 10. Outside Installations. No radio station or
short-wave operators of any kind shall operate from any Lot or
dwelling unit unless approved by the Board of Directors. No exterior
radio antenna, C.B. antenna, television antenna, or other antenna of
any type shall be erected or maintained in the Properties. No fence
or wall shall be erected, altered or maintained on any Lot in the
Properties, except with the prior written approval of the Board. All
walls or fences initially constructed by Declarant shall be
permanently maintained by the Owners of the Lots on which they are
located. Any alterations or modifications of the walls or fences not
addressed herein shall be subject to the prior written approval of
the Board.
Section 11. Insurance Rates. Nothing shall be done or
kept in the Properties which will increase the rate of insurance on
any property insured by the Association without the approval of the
Board, nor shall anything be done or kept in the Properties which
would result in the cancellation of insurance on any property insured
by the Association or which would be in violation of any law.
Section 12. Drilling. No oil drilling, oil development
operations, oil refining, quarrying or mining operations of any kind
shall be permitted upon or in any Lot, nor shall oil wells, tanks,
tunnels or mineral excavations or shafts be permitted upon the
8
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surface of any Lot or within five hundred fifty feet (550') below the
surface of the Properties. No derrick or other structure designed
for use in boring for water, oil or natural gas shall be erected,
maintained or permitted upon any Lot.
Section 13. Drainage. There shall be no interference
with the established drainage pattern over any Lot within the
Properties, unless an adequate alternative provision is made for
proper drainage and is first approved in writing by the Board. For
the purposes hereof, "established" drainage is defined as the
drainage which exists at the time that such Lot is conveyed to a
purchaser from Declarant, or that which is shown on any plans
approved by the Board, which may include drainage from the Common
Area over any Lot or Lots in the Properties. Notwithstanding the
foregoing, in the event a Lot contains an open v-ditch, such Lot
Owner shall assure that the v-ditch is kept free and clear of debris
at all times to prevent damage to the Lot or adjacent Lots caused by
interference with the established drainage pattern within the
Properties.
Section 14. Violation of Governing Instruments. There
shall be no violation of the restrictions of this Declaration or of
the rules and regulations of the Association adopted in accordance
with the provisions of the By-Laws. If any Owner, his family, guest,
licensee, lessee or invitee, violates any such restrictions, the
Board may impose a reasonable Reimbursement Assessment upon such
Owner for each violation and may suspend the voting privileged of
such Owner as further provided in the By-Laws. Such Reimbursement
Assessment shall be collectible in the same manner as Regular
Assessments hereunder, but the Board shall give such Owner notice and
hearing before invoking any such Reimbursement Assessment or
suspension.
Section 15. Construction by Declarant. Nothing in this
Declaration shall limit the right of the Declarant to commence and
complete construction of improvements to the Properties or to alter
the foregoing or the Lots or Common Area or to construct such
additional improvements as the Declarant deems advisable prior to the
completion and sale of all of the Properties. The Declarant may use
any of the Lots within the Properties owned by it for model home
sites and incidental parking. The Declarant shall have the right and
an easement to enter upon, use and enjoy and designate and permit
others (including, without limitation, Declarant's agents, employees,
representatives, contractors and prospective purchasers) to enter
upon, use and enjoy the Common Area for any purpose in connection
with or incidental to the construction, development, sale, lease or
other transfer of property within or adjacent to the Properties
(including, without limitation, the erection, construction and
maintenance of displays, sales offices and incidental parking,
exhibits, sign and other structures); provided, however, that such
use shall not be for a period beyond the earlier of (i) five (5)
years from the conveyance of the first Lot by Declarant, or (ii) the
sale by Declarant of all Lots within the Project, and provided
further that the exercise of such right and easement shall not
F:\REAL\636\30283001\CCIRS o
unreasonably interfere with the reasonable use and enjoyment of the
Common Area by the Members.
Section 16. Development and Maintenance of Lot A. Lot A
will be developed by the Declarant as an open space lot with passive
recreational amenities. Lot A will be conveyed to the Association in
fee prior to the close of the first escrow in the Properties and will
be maintained by the Association and retained as permanent open
space. No private development of Lot A is permitted.
Section 17. Landscape Maintenance. All landscaped areas
within the Properties shall be maintained in a healthy, thriving
condition, free from weeds, trash and debris.
Section 18. Restriction on Improvements within Sewer
Easement Area. A 12.5 foot public sewer easement dedicated to the
City of Carlsbad is located along the northeastern boundary of the
Properties within the sideyards of Lots 3 and 6, as shown on the
recorded tract map for the Properties. In order to prevent damage to
the sewer system, improvements within the sewer easement area should
be limited to light landscaping. No deep rooting trees should be
planted in the easement area, or any other improvements that might
damage the sewer system or impair the ability of the City to obtain
access to the sewer system for maintenance or repairs.
10
ARTICLE IV
MEMBERSHIP AND VOTING RIGHTS
Section 1. Organization. The Association is organized
as a California corporation under the California Nonprofit Mutual
Benefit Corporation Law. The Association is charged with the duties
and vested with the powers prescribed by law and set forth in the
Articles, By-Laws, and this Declaration. Neither the Articles nor
By-Laws shall, for any reason, be amended or otherwise changed so as
to be inconsistent with this Declaration. In the event that there
should exist any ambiguity in any provision of the Articles or By-
Laws, then such provision shall be construed, to the extent possible,
so that such provision shall be interpreted so as to be consistent
with the provisions of this Declaration.
Section 2. Membership. Every person or entity who is a
record Owner of a fee or undivided fee interest in any Lot which is
subject by covenants of record to assessment by the Association,
shall be a Member of the Association. Membership shall be
appurtenant to and may not be separated from the fee ownership of any
Lot which is subject to assessment by the Association. Ownership of
such Lot shall be the sole qualification for membership. Transfer of
a Lot shall automatically transfer membership in the Association.
Section 3. Voting Rights. The Association shall have
two (2) classes of voting membership:
Class A. Class A Members shall be all Owners with the
exception of Declarant and shall be entitled to one (1) vote for each
Lot owned. When more than one person holds an interest in any Lot,
all such persons shall be entitled to all rights and privileges of
membership. The vote for such Lot shall be exercised as its Owners
collectively determine, but in no event shall more than one vote be
cast with respect to any Lot.
Class B. The Class B Member shall be the Declarant
and shall be entitled to three (3) votes for each Lot owned. The
Class B membership shall cease and be converted to Class A Membership
on the happening of either of the following events, whichever occurs
earlier:
(a) At such time as the total votes outstanding
in the Class A membership equal the total votes outstanding in the
Class B membership;
(b) On the second anniversary of the conveyance
of the first Lot in the Properties.
Section 4. Two Classes of Memberships. Any action by
the Association which must have the approval of the membership of the
Association before being undertaken, shall require the vote or
written assent of both a majority of the Class B membership as well
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as a majority of the Class A membership so long as there are two (2)
outstanding classes of Membership, unless a specific provision of
this Declaration or the By-Laws or Articles of the Association
requires the approval of a greater percentage of the voting
membership. Notwithstanding the foregoing, any action by the
Association pursuant to the Article of this Declaration entitled
"ENFORCEMENT OF BONDED OBLIGATIONS" shall only require a majority of
the voting power of the Owners other than Declarant.
Section 5. Special Class A Voting Rights.
Notwithstanding the provisions of this Article, if the Class A
Members do not have sufficient voting power pursuant to the voting
rights set forth in this Declaration and the By-Laws to elect at
least one (1) director at any meeting at which directors are to be
elected, and at which Class A Members are entitled to vote, then such
Class A Members shall, by majority vote, among themselves, elect one
(1) director and the remaining vacancies on the Board shall be
elected by the Class B Member so long as there are two outstanding
classes of membership in the Association or so long as a majority of
the voting power of the Association resides in the Declarant. In no
event shall the Class A Members be entitled to elect more than one
(1) director to the Board pursuant to the provisions of this special
Class A voting right.
Section 6. Vesting of Voting Rights. All voting rights
which are attributable to a specific Lot pursuant to the terms of
this Declaration shall not vest until such time as such Lot is
subject to Regular Assessments pursuant to the terms of this
Declaration.
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ARTICLE V
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Covenant to Pay Assessment. Declarant, on
behalf of itself, and for each Lot owned, hereby covenants, and each
Owner of any Lot by acceptance of a deed therefor, whether or not it
shall be so expressed in such deed, is deemed to covenant and agree
to pay to the Association: (1) Regular Assessments or charges, (2)
Special Assessments for capital improvements, and (3) Reimbursement
Assessments, all such assessments to be established and collected as
hereinafter provided. The Regular Assessment or charges must be in
an amount sufficient to include an adequate reserve fund for
maintenance, repairs and replacement of the Common Area that must be
replaced on a periodic basis, and this reserve fund must be collected
as a portion of the Regular Assessment rather than as a Special
Assessment. Each of such assessments, together with interest, costs
and reasonable attorneys' fees, shall also be the personal obligation
of the person who was the Owner of such Lot at the time the
assessment fell due. The personal obligation for delinquent
assessments shall not pass to such person's successors in title
unless expressly assumed by them. The Association shall not impose
or collect an assessment or fee that exceeds the amount necessary to
defray the costs for which it is levied.
Section 2. Purpose of Assessments. The assessments
levied by the Association shall be used exclusively to promote the
recreation, health, safety and welfare of the residents of the Lots
and for the improvement, operation and maintenance of the Common
Areas and the performance of the duties of the Association as set
forth in this Declaration.
Section 3. Amount of Regular Assessments and Limitation
on Increases in Regular Assessments. The amount and time of payment
of Regular Assessments against each Lot shall be determined by the
Board of Directors of the Association giving due consideration to the
current maintenance costs and future needs of the Association.
Except as provided in this Section, the Association shall levy
Regular and Special Assessments sufficient to perform its obligations
under the governing documents and this Article. However, annual
increases in Regular Assessments for any fiscal year, as authorized
by subdivision (b) of Section 1366 of the California Civil Code,
shall not be imposed unless the Board has complied with subdivision
(a) of Section 1365 of the California Civil Code, the provisions of
which are set forth in the Article of this Declaration entitled
"COMPLIANCE WITH CIVIL CODE SECTIONS 1354, 1365 and 1365.5," with
respect to that fiscal year, or has obtained the approval of Owners,
constituting a quorum, casting a majority of the votes at a meeting
or election of the Association conducted in accordance with Chapter 5
(commencing with Section 7510) of Part 3 of Division 2 of Title 1 of
the Corporations Code and Section 7613 of the Corporations Code.
Notwithstanding more restrictive limitations placed on the Board by
the governing documents, and except for the terms of this Declaration
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as provided for in Section 6 below, the Board of Directors may not
impose a Regular Assessment that is more than twenty percent (20%)
greater than the Regular Assessment for the Association's preceding
fiscal year against each Lot without the vote or written assent of
Members, constituting a quorum, casting a majority of the votes at a
meeting or election of the Association. For purposes of this
Section, quorum means more than fifty percent (50%) of the Owners of
the Association. The Association shall provide notice by first-class
mail to the Owner of each Lot of any increase in the Regular
Assessments of the Association not less than thirty (30) nor more
than sixty (60) days prior to the increased assessment becoming due.
Section 4. Special Assessments for Capital Improvements
and Limitation on Increases In Special Assessments. In addition to
the Regular Assessments authorized above, the Association may levy,
in any assessment year, a Special Assessment applicable to that year
only for the purpose of defraying, in whole or in part, the cost of
any construction, reconstruction, restoration, repair or replacement
of a capital improvement within the Common Area including fixtures
and personal property related thereto or any other action or
undertaking on behalf of the Association, provided that any Special
Assessment for all Lots for the fiscal year in the aggregate in
excess of five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year shall be approved by the vote or
written assent of Members, constituting a quorum, casting a majority
of the votes of the Association at a meeting or election of the
Association. This limitation on Special Assessments shall not apply
to any Reimbursement Assessment which is authorized by the provisions
of this Declaration. The Association shall provide notice by
first-class mail to the Owner of each Lot of any increase in the
Special Assessments of the Association not less than thirty (30) nor
more than sixty (60) days prior to the increased assessment becoming
due.
Section 5. Special Quorum and Meeting Requirements for
Increases In Assessments. For purposes only of Section 3 and Section
4 of this Article, a quorum means more than fifty percent (50%) of
the Members of the Association. Any meeting or election of the
Association for purposes of complying with Sections 3 and 4 of this
Article shall be conducted in accordance with the provisions of
Chapter 5 of Part 3, Division 2 of Title 1 of the California
Corporations Code dealing with meetings and voting and Section 7613
of the California Corporations Code dealing with proxies.
Section 6. Exceptions from Limitation on Assessment
Increases. The limitation on percentage increases of Regular and
Special Assessments under Sections 3 and 4 above shall not limit
assessment increases necessary for addressing emergency situations.
For purposes of this Section, an emergency situation is any one of
the following:
(i) An extraordinary expense required by an
order of a court;
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(ii) An extraordinary expense necessary to repair
or maintain the Properties or any part thereof for which the
Association is responsible where a threat to personal safety on the
Properties is discovered;
(iii) An extraordinary expense necessary to repair
or maintain the Properties or any part thereof for which the
Association is responsible that could not have been reasonably
foreseen by the Board in preparing and distributing the pro forma
operating budget, as required under the Article of this Declaration
entitled "COMPLIANCE WITH CIVIL CODE SECTIONS 1354, 1365 AND 1365.5."
However, prior to the imposition or collection of an increased
assessment under this Section, the Board shall pass a resolution
containing written findings as to the necessity of the extraordinary
expense involved and why the expense was not or could not have been
reasonably foreseen in the budgeting process, and the resolution
shall be distributed to the Members with the notice of assessment.
Section 7. Reimbursement Assessments. The Association
shall levy a Reimbursement Assessment against any Owner who fails to
comply with the provisions of this Declaration, the determinations of
the Board, the Association's Articles or By-Laws, or any rule or
regulation adopted by the Association, if such failure results in the
expenditure of monies by the Association in carrying out its
functions hereunder or for purposes of collecting any fines which may
be levied by the Association. Except for collection of fines, such
assessment shall be for the purpose of reimbursing the Association,
shall be limited to the amount so expended, and shall be due and
payable to the Association when levied.
Section 8. Uniform Rate of Assessment. Both Regular
and Special Assessments must be fixed at a uniform rate for all Lots
and may be collected on a monthly basis, unless some other period for
collection is adopted by the Board.
Section 9. Date of Commencement of Regular Assessments;
Due Dates. The Regular Assessments provided for herein shall
commence as to all Lots (including those owned by Declarant) no later
than (but earlier at the discretion of Declarant) the first day of
the month following the conveyance of the first Lot by Declarant to
an individual Owner, or upon conveyance of the Common Area to the
Association, whichever first occurs. Once Regular Assessments have
commenced, such assessments may not cease and such Lots shall be
subject at all times to the provisions of the Declaration, including
the power of the Association to collect such assessments through the
enforcement of a lien as provided in this Declaration. The first
Regular Assessments shall be adjusted according to the number of
months remaining in the fiscal year of the Association. The Board of
Directors shall fix the amount of the Regular Assessment against each
Lot at least sixty (60) days in advance of each fiscal year of the
Association at an amount not in excess of the maximum as provided in
this Declaration. Written notice of the amount of the Regular
Assessments against each Lot shall be sent to every Owner subject
thereto. The due dates shall be established by the Board of
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Directors. Regular Assessments shall be deemed delinquent fifteen
(15) days after the due dates established by the Association. In the
event the Board shall determine at any time that the estimate of the
Regular Assessment for the current fiscal year is, or will become,
inadequate to meet the expenses of the Association for any reason, it
shall immediately determine the approximate amount of such inadequacy
and issue a supplemental estimate of the total Association expenses
and determine the revised amount of the Regular Assessment against
each Lot.
Section 10. Certification of Payment. The Association
shall, upon demand, and for a reasonable charge, furnish a
certificate signed by an officer of the Association setting forth
whether the assessments on a specified Lot have been paid. Said
signed certificate shall be conclusive evidence as to all third
parties relying thereon to show that all assessments acknowledged
therein have been paid but shall not relieve any Owner of the
responsibility for assessments not in fact paid.
Section 11. Exemption from Regular Assessments -Dwelling
Unit. Notwithstanding anything to the contrary contained elsewhere
in this Article, the Declarant and any other Owner of a Lot within
the Properties which does not contain a residential dwelling unit
shall be exempt from the payment of that portion of the Regular
Assessments which is for the purpose of defraying expenses and
reserves directly attributable to the existence and the use of the
residential structural improvements. The exemption may include, but
shall not necessarily be limited to:
(1) Roof replacement;
(2) Exterior maintenance;
(3) Walkway and carport lighting;
(4) Refuse disposal;
(5) Cable television; and
(6) Domestic water supplied to a portion of the
dwelling units.
This exemption from the payment of Regular Assessments
attributable to the dwelling units shall be in effect only until the
earliest of the following events: (i) a notice of completion of the
structural improvements on the Lot has been recorded; (ii) occupation
or use of the dwelling unit on the Lot; or (iii) completion of all
elements of the residential structures on the Lot which the
Association is obliged to maintain.
Section 12. Exemption from Regular Assessments -Common
Area. The Declarant and any other Owner of a Lot shall be exempt
from the payment of that portion of the Regular Assessments which is
for the purpose of defraying expenses and reserves directly
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attributable to the existence and use of a Common Area facility that
is not complete at the time the Regular Assessments commence. Any
exemption from the payment of Regular Assessments attributable to
Common Area facilities shall be in effect only until the earliest of
the following events: (i) a notice of completion of the Common Area
facility has been recorded, or (ii) the Common Area facility has been
placed into use.
Section 13. Reserves. The Regular Assessments shall
include reasonable amounts as determined by the Board collected as
reserves for the future periodic maintenance, repair or replacement
of all or a portion of the Common Area, or any other purpose as
determined by the Board. All amounts collected as reserves, whether
pursuant to this Section or otherwise, shall be deposited by the
Board in a separate bank account to be held in trust for the purposes
for which they are collected and are to be segregated from and not
commingled with any other funds of the Association. Such reserves
shall be deemed a contribution to the capital account of the
Association by the Members.
Section 14. Effect of Nonpayment of Assessments;
Remedies of the Association. Each Owner of any Lot on becoming an
Owner of any Lot, is and shall be deemed to covenant and agree to pay
to the Association each and every of the assessments provided for in
this Declaration; and agrees to the enforcement of all such
assessments in the manner herein specified. In the event an attorney
or attorneys are employed for collection of any assessment, whether
by suit or otherwise, or to enforce compliance with or specific
performance of the terms and conditions of this Declaration, each
Owner agrees to pay reasonable attorneys' fees and costs thereby
incurred in addition to any other amounts due or any other relief or
remedy obtained against said Owner. In addition to any other
remedies herein or by law provided, the Board, or its authorized
representative, may enforce the obligations of the Owners to pay the
assessments provided for in this Declaration, and each of them, in
any manner provided by law or in equity, or without any limitation of
the foregoing, by either or both of the following procedures:
(a) Enforcement by Suit. By commencement and
maintenance of a suit at law against any Owner or Owners personally
obligated to pay assessments for such delinquent assessments as to
which they are personally obligated, such suit to be maintained in
the name of the Association. Any judgment rendered in any such
action shall include the amount of the delinquency, together with
interest thereon as provided for herein, costs of collection, court
costs and reasonable attorneys' fees in such amount as the Court may
adjudge against the delinquent Owner. Suit to recover a money
judgment for unpaid assessments shall be maintainable without
foreclosing or waiving the lien hereinafter provided for.
(b) Enforcement by Lien. There is hereby created a
claim of lien, with power of sale, on each and every Lot to secure
payment to the Association of any and all assessments levied against
any and all Owners of such Lots pursuant to this Declaration,
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together with interest thereon as provided for in this Declaration,
and all costs of collection which may be paid or incurred by the
Association in connection therewith, including reasonable attorneys'
fees. At any time after the occurrence of any delinquency in the
payment of any such assessment, the Board or any authorized
representative thereof may make a written demand for payment to the
delinquent Owner. Said demand shall state the date and amount of the
delinquency. Each delinquency shall constitute a separate basis for
a demand or claim of lien or a lien, but any number of defaults may
be included within a single demand or claim of lien and any demand or
claim of lien or lien on account of prior delinquencies shall be
deemed to include subsequent delinquencies and amounts due on account
thereof. If such delinquency is not paid within ten (10) days after
delivery of such demand, the Board or its duly authorized
representative may thereafter elect to file and record a Notice of
Delinquent Assessment ("Notice") on behalf of the Association against
the Lot of the defaulting Owner in the Office of the County Recorder
of San Diego County. The amount of the assessment, plus any costs of
collection, late charges and interest assessed in accordance with
this Declaration shall be a lien on the Owner's Lot from and after
the time the Association records the Notice of Delinquent Assessment.
Such Notice shall be executed and acknowledged by any officer of the
Association and shall contain substantially the following
information:
(1) The claim of lien made pursuant to this
Declaration;
(2) The name of the record Owner;
(3) The legal description of the Lot against
which claim of lien is made;
(4) The total amount claimed to be due and owing
for the amount of the delinquency, interest thereon, collection
costs, and estimated attorneys' fees (with any proper offset
allowed);
(5) That the claim of lien is made by the
Association pursuant to this Declaration;
(6) That a lien is claimed against said Lot in
an amount equal to the amount stated, together with all other amounts
becoming due from time to time in accordance with this Declaration;
and
(7) The name and address of the trustee
authorized by the Association to enforce the lien by public sale.
Upon such recordation of a duly executed original
or copy of such Notice, the lien claimed therein shall immediately
attach and become effective in favor of the Association as a lien
upon the Lot against which such assessment was levied. Such a lien
shall have priority over all liens or claims created subsequent to
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the recordation of this Declaration, except for tax liens for real
property taxes on any Lot and assessments on any Lot in favor of any
municipal or other governmental assessing unit and except for certain
Trust Deeds as provided in the Section of this Article entitled
"Subordination to Certain Trust Deeds" below. Any such lien may be
foreclosed by appropriate action in Court or in the manner provided
by the California Civil Code for the foreclosure of a deed of trust
with power of sale, or in any other manner permitted by law. The
Board is hereby authorized to appoint its attorney, any officer or
director of the Association, or any Title Company authorized to do
business in California as Trustee for the purpose of conducting such
power of sale foreclosure. The lien provided for herein shall be in
favor of the Association and shall be for the benefit of all other
Lot Owners and shall secure payment of all sums set forth in the
Notice, together with all sums becoming due and payable in accordance
with this Declaration after the date of recordation of said Notice.
The Association shall have the power to bid in at any foreclosure
sale and to purchase, acquire, hold, lease, mortgage and convey any
Lot. In the event such foreclosure is by action in Court, reasonable
attorneys7 fees, court costs, title search fees, late payment fees,
interest and all other costs and expenses shall be allowed to the
extent permitted by law. Each Owner, by becoming an Owner of a Lot,
hereby expressly waives any objection to the enforcement and
foreclosure of this lien in this manner. Upon the timely curing of
any default for which a Notice was filed by the Board and the payment
of all sums secured by the lien created by the recordation of such
Notice, the Board shall cause an officer of the Association to file
and record an appropriate release of such Notice in the Office of the
County Recorder of San Diego County, California. No Owner may waive
or otherwise escape liability for the assessments provided for in
this Declaration by non-use or abandonment of his Lot. Notwith-
standing anything contained in this Declaration to the contrary, no
action may be brought to foreclose the lien created by recordation of
a Notice of Delinquent Assessments, whether judicially, by power of
sale, or otherwise, until the expiration of ten (10) days after a
copy of said Notice, showing the date of recordation thereof, has
been mailed to the Owner of the Lot which is described in such
Notice.
Section 15. Subordination to Certain Trust Deeds. The
lien for the assessments provided for herein in connection with a
given Lot shall not be subordinate to the lien of any deed of trust
or mortgage, except the lien of a first deed of trust or first
mortgage, given and made in good faith and for value that is of
record as an encumbrance against such given Lot prior to the
recordation of a Notice of Delinquent Assessment for the assessments
provided for in this Declaration against such given Lot (such deed of
trust or mortgage being hereinafter referred to as a "First
Encumbrance"). The sale or transfer of any Lot shall not affect any
assessment lien created pursuant to the term of this Declaration to
secure assessments becoming due whether prior to, on, or after the
date of such sale or transfer, nor shall such sale or transfer
diminish or defeat the personal obligation of any Owner for
delinquent assessments as provided for by Section 1 of this Article;
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provided, however, that the sale or transfer of any Lot pursuant to a
judicial foreclosure or foreclosure by power of sale of a First
Encumbrance, shall extinguish any assessment lien which has attached
and become effective with regard to the Lot being so transferred
prior to the time of such sale or transfer, and shall prohibit the
recordation of any assessment lien against such Lot on account of
assessments which became due prior to the date of such sale or
transfer; provided, however, that there shall be a lien on the
interests of the purchaser at such sale which shall attach, be
created and become effective and be foreclosed in accordance with
this Declaration and which shall secure all assessments becoming due
after the date of any such sale or transfer. For the purpose of this
Section, a sale or transfer of a Lot shall occur on the date of
recordation of a deed or other instrument of title evidencing the
conveyance of record title to the Lot.
Section 16. Exempt Property. The following property
subject to this Declaration shall be exempt from the assessments
created herein: All properties dedicated to and accepted by any
local public authority and the Common Area.
Section 17. Enforcement of Reimbursement Liens.
(a) Notwithstanding anything to the contrary
contained in this Article or elsewhere in this Declaration, in the
event the Association imposes a Reimbursement Assessment as a
monetary penalty for failure of a Member to comply with the terms of
the Declaration or as a means of reimbursing the Association for
costs incurred by the Association in the repair of damage to the
Common Area for which the Member was allegedly responsible or as a
means to force a Member to comply with the terms of this Declaration,
such Reimbursement Assessment shall not be characterized or treated
as an assessment which may become a lien against a Member's Lot
enforceable in the manner provided by the California Civil Code for
the foreclosure of a deed of trust with power of sale as provided in
the Section of this Article entitled "Effect of Nonpayment of
Assessments; Remedies of the Association." A Reimbursement
Assessment imposed for any purpose other than the purposes enumerated
hereinabove in this Section shall be enforceable in accordance with
the procedures set forth in the Section of this Article entitled
"Effect of Nonpayment of Assessments; Remedies of the Association."
(b) The provisions of subsection (a) hereinabove
relating to restrictions on the enforcement of Reimbursement
Assessments for certain purposes shall not apply to any interest
charge or late charge for delinquent assessments imposed pursuant to
the Section of this Article entitled "Effect of Nonpayment of
Assessments; Remedies of the Association," or to any costs reasonably
incurred by the Association (including attorneys' fees) in its
efforts to collect delinquent assessments.
Section 18. Delivery by Owner. Each Owner of a Lot
shall, before the execution of an offer to purchase or lease, make
available for examination by the prospective purchaser or lessee, and
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as soon as practicable before transfer of the interest being
acquired, give to each purchaser or lessee (i) a copy of this
Declaration and copies of the Bylaws and Articles of Incorporation of
the Association, (ii) copies of any other instruments which define
the rights and responsibilities of the Owner or lessee as members of
the Association, (iii) to the extent available, a copy of the most
recent financial statement distributed by the Association in
accordance with the Article of this Declaration entitled "COMPLIANCE
WITH CIVIL CODE SECTIONS 1354, 1365 AND 1365.5," (iv) a statement
prepared by the Board of Directors as to the amount of the
Association's current Regular and Special Assessments and fees, as
well as the amount of any delinquent assessments and information
relating to penalties, late charges, interest and other charges
authorized by this Declaration which are or may be a lien on such
Owner's Lot as of the date the statement is issued, and (v) written
notice of any change in the Association's current Regular and Special
Assessments and fees which have been approved by the Association's
Board, but which are not yet due and payable as of the date
disclosure is provided, as required by this Section, to the
prospective purchaser.
Section 19. Late Charges and Interest on Delinquent
Assessments. Any assessment imposed pursuant to the terms of this
Declaration, if delinquent, shall include a late charge in the
maximum amount which shall be imposed by the Board in accordance with
and subject to the limitations of California Civil Code Section 1366
as the same may be modified from time to time by statute or judicial
decision. Interest shall accrue on all sums imposed in accordance
with this Article, including the delinquent assessment, reasonable
costs of collection and late charges, at an annual percentage rate of
twelve percent (12%) interest, commencing thirty (30) days after the
assessment becomes due, or such higher percentage rate of interest
authorized by Civil Code Section 1366 as modified from time to time
by statute or judicial decision.
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ARTICLE VI
DUTIES AND POWERS OF THE ASSOCIATION
Section 1. General Powers of the Association. All
powers relating to the management, operation and maintenance of the
Common Area, as well as certain rights, duties and powers relating to
the Lots, as hereinafter set forth, shall be vested in the
Association and in its Board of Directors. The specific and primary
purposes and powers of the Association and its Board of Directors are
to provide for the operation, control, repair, maintenance and
restoration of the Common Areas, provide architectural control of the
Properties, provide recreational activities for the Members, and to
enforce the provisions of this Declaration and the Association's
Articles and By-Laws, and any other instruments relating to the
management and control of the Association and the Properties. The
Association may do any and all other acts and things that a nonprofit
corporation is empowered to do, which may be necessary, convenient or
desirable in the administration of its affairs for the specific and
primary purposes of meeting its duties as set forth in this
Declaration. The Association, through its Board of Directors, shall
have the authority to delegate its powers to committees, officers of
the Association or its employees.
Section 2. Contracts of the Association. The
Association shall have the right and power to employ or engage a
manager and other employees or agents and contract for such services,
labor and materials as it may deem reasonable or necessary to operate
and maintain the Properties and the Common Area, and the improvements
thereon and to discharge its other duties as herein provided. Any
agreement for professional management of the Association or for
services of the Declarant must provide that the management contract
may be terminated by either party without cause or payment of a
termination fee upon no more than ninety (90) days written notice,
and the term of such contract shall not exceed one (1) year. Any
management company or agent that handles funds for the Association
should be covered by a fidelity bond, which must provide the same
coverage required of the Association under the Article of this
Declaration entitled "INSURANCE."
Section 3. General Powers and Duties of Association.
In addition to the duties and powers enumerated in its Articles of
Incorporation and By-Laws, or elsewhere provided for herein, and
without limiting the generality thereof, and subject to the
limitations on the power of the Board as set forth in Sections 4 and
5 of this Article, the Association acting through the Board shall:
(a) Own and maintain all Common Area within the
Properties. The responsibility of the Association to maintain the
Common Area shall commence on the first of the month following the
close of escrow representing the conveyance of the first Lot by
Declarant to an Owner;
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(b) Maintain such policy or policies of insurance as
the Board deems necessary or desirable in furthering the purposes of
and protecting the interests of the Association and its Members
including, but not limited to, hazard and liability insurance, plate
glass insurance, fidelity bonds, workmen's compensation and officers'
and directors' liability insurance. The Association shall be
required, if available, to maintain fire and extended coverage
insurance on insurable Common Area improvements on a current
replacement cost basis in an amount not less than one hundred percent
(100%) of the insurable value (based on current replacement costs);
(c) Have the authority to obtain, for the benefit of
the Common Area, all utility services unless such services are
separately charged to the Owners;
(d) Maintain all drainage facilities and easements
owned by the Association, if any;
(e) Maintain all fences, walls and entry gates lying
directly adjacent to Lot A;
(f) Pay taxes and assessments which are or could
become a lien on the Common Area, if any, or some portion thereof;
(g) Prepare budgets and financial statements for the
Association and its Members as prescribed in the Article of this
Declaration entitled "COMPLIANCE WITH CIVIL CODE SECTION 1354, 1365
AND 1365.5";
(h) Initiate and execute disciplinary proceedings
against Members of the Association for violations of provisions of
this Declaration or the Association's Articles of Incorporation or
By-Laws in accordance with the procedures set forth in this
Declaration;
(i) Disclose information in accordance with Section
11018.6 of the California Business and Professions Code;
(j) Have the authority to institute, defend, settle
or intervene in litigation, arbitration, mediation, or administrative
proceedings in its own name as the real party in interest and without
joining with it the individual Owners of the Properties, in matters
pertaining to the following:
(i) Enforcement of this Declaration and the
Bylaws of the Association;
(ii) Damage to the Common Areas;
(iii) Damage to the Lots that the Association
is obligated to maintain or repair;
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r«v 06/29/95 c
(iv) Damage to the Lots which arises out of,
or is integrally related to, damage to the Common Areas or Lots that
the Association is obligated to maintain or repair.
Section 4. Restrictions on Power of the Board. The
Association shall be prohibited without the prior vote or written
assent of a majority of the voting power of the Association, which
shall include a majority of the votes residing in Members other than
the Declarant, from doing either of the following: (i) incurring
aggregate expenditures for capital improvements to any portion of the
Properties in any fiscal year in excess of five percent (5%) of the
budgeted gross expenses of the Association for that fiscal year; or
(ii) selling during any fiscal year of the Association property of
the Association having an aggregate fair market value greater than
five percent (5%) of the budgeted gross expenses of the Association
for the fiscal year; (iii) paying compensation to members of the
Board or to officers of the Association for services performed in the
conduct of the Association's business; provided, however, that the
Board may cause a member or officer to be reimbursed for expenses
incurred in carrying on the business of the Association; and (iv)
filling of a vacancy on the Board created by the removal of a Board
member.
Section 5. Limitation on Board Authority to Contract.
The Board of Directors shall not enter into any contracts for goods
or services with a duration greater than one (1) year without the
vote or written consent of a majority of the voting power of the
Association, which shall include a majority of the votes residing in
Members other than the Declarant, with the following exceptions: (i)
a management contract, the terms of which have been approved by the
Federal Housing Administration or Department of Veterans Affairs;
(ii) a contract with a public utility company if the rates charged
for the materials or services are regulated by the Public Utilities
Commission; provided, however that the term of the contract shall not
exceed the shortest term for which the supplier will contract at the
regulated rate; (iii) prepaid casualty and/or liability insurance
policies of not to exceed three (3) years duration, provided that the
policy permits for short rate cancellation by the insured; (iv) a
lease agreement for laundry room fixtures and equipment of not to
exceed five (5) years duration provided that the lessor under the
agreement is not an entity in which Declarant has a direct or
indirect ownership interest of ten percent (10%) or more; or (v)
agreements for cable television services and equipment or satellite
dish television services and equipment of not to exceed five (5)
years duration provided that the supplier is not an entity in which
the subdivider has a direct or indirect ownership interest of ten
percent (10%) or more.
Section 6. Association Rules. The Board shall also
have the power to adopt, amend, and repeal such rules and regulations
as it deems reasonable which may include the establishment of a
system of fines and penalties enforceable as Reimbursement
Assessments, as more fully set forth in the Bylaws of the
Association. The rules of the Association shall govern such matters
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rev 06/29/95
in furtherance of the purposes of the Association, including, without
limitation, the use of the Common Areas provided, however, that the
rules of the Association may not discriminate among Owners, and shall
not be inconsistent with this Declaration, the Articles or By-Laws.
Any rule of the Association which imposes a system of fines or
penalties must provide that the accused be given notice and the
opportunity to be heard by the Board with respect to the alleged
violations before a decision to impose discipline is imposed. A copy
of the rules of the Association as they may from time to time be
adopted, amended or repealed or a notice setting forth the adoption,
amendment or repeal of specific portions of the rules of the
Association shall be delivered to each Owner in the same manner
established in this Declaration for the delivery of notices. Upon
completion of the notice requirements, said rules of the Association
shall have the same force and effect as if they were set forth in and
were part of this Declaration and shall be binding on the Owners and
their successors in interest whether or not actually received
thereby. The rules of the Association, as adopted, amended or
repealed, along with current copies of the Declaration, and Articles
of Incorporation and Bylaws of the Association, shall be available at
the principal office of the Association to each Owner and
Institutional Holder of a Mortgage upon request. In the event of any
conflict between any such rules of the Association and any other
provisions of this Declaration, or the Articles or By-Laws, the
provisions of the rules of the Association shall be deemed to be
superseded by the provisions of this Declaration, the Articles or the
By-Laws to the extent of any such conflict.
Section 7. Entry Onto Lots. The Association and its
representatives shall have the right to enter upon any Lot within the
Properties to the extent such entry is necessary in connection with
the performance by the Association of its duties and responsibilities
under this Article or under this Declaration, including, without
limitation, the construction, maintenance or effectuation of
emergency repairs for the benefit of the Lots, the Common Areas, or
for any of the Owners within the Properties.
Section 8. Damage from Wood-Destroying Pests. The
Owner of each Lot shall be responsible for the repair and maintenance
of the dwelling unit on that Lot as may be occasioned by the presence
of wood-destroying pests or organisms. Upon approval of the majority
of all Members of the Association, the responsibility for such repair
and maintenance may be delegated to the Association which shall be
entitled to recover the cost thereof as a Special Assessment. The
costs of temporary relocation during the repair and maintenance of
the dwelling unit shall be borne by the Owner of the dwelling unit
being repaired. The Association may cause the temporary, summary
removal of any occupant of a dwelling unit for such periods and at
such times as may be necessary for prompt, effective treatment of
wood-destroying pests or organisms. In the event of such removal,
the Association shall give notice as specified in California Civil
Code Section 1364, and such notice by the Association shall be deemed
complete when given as specified therein.
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Section 9. Association Documents to Declarant. In
addition to documents to be provided to Declarant as set forth in
Section 1 of the Article of this Declaration entitled "COMPLIANCE
WITH CIVIL CODE SECTIONS 1354, 1365 AND 1365.5", commencing with the
close of the first sale escrow and terminating ten years after the
closing of the final sale escrow for a Lot in the Properties, the
Board shall provide Declarant or a designated representative of
Declarant copies of the minutes of each meeting of the Association or
its Board, correspondence from the Association to it's Members, and a
full copy of the reserve study conducted pursuant to Civil Code
Section 1365.5, as set forth in the Article of this Declaration
entitled "COMPLIANCE WITH CIVIL CODE SECTIONS 1354, 1365 AND 1365.5."
Declarant shall further be entitled to: (a) inspect and copy the
books and records of the Association during normal business hours;
and (b) receive written notice of all meetings of Owners of the
Association and be permitted to designate a representative to attend
all such meetings. In the event Declarant is no longer an Owner of a
Lot, the Board shall notify Declarant of the amount of reimbursement
of the Association's costs prior to making such distribution, which
shall be equal to the cost it would charge its Members for such
distribution, if any.
Section 10. Maintenance of Perimeter Walls and Fences.
Perimeter fencing and walls are located along the northeast and
southwest boundaries of the Properties. It shall be the
responsibility of the Owner of each Lot to maintain the portion of
the fencing and walls which lies directly adjacent to their Lot. If
such fence or wall is damaged or destroyed by some cause (including
ordinary wear and tear and deterioration from lapse of time), the
Owner of the Lot upon which the portion of the fence or wall is
located shall rebuild or repair the same to as good condition as
formerly existed at their sole expense.
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ARTICLE VII
INSURANCE
Section 1. Types. The Association, to the extent
available, shall obtain and continue in effect in its own name the
following types of insurance:
(a) A comprehensive policy of public liability
insurance covering the Common Areas with a limit of not less than Two
Million Dollars ($2,000,000.00) for claims for personal injury and/or
property damage arising out of a single occurrence if the Properties
consist of 100 or fewer Lots, and a limit of not less than Three
Million Dollars ($3,000,000.00) per occurrence if the Properties
consist of more than 100 Lots, such coverage to include protection
against such risks as shall customarily be covered or available with
respect to planned unit developments and shall contain an endorsement
which shall preclude the insurer from denying the claim of an Owner
because of negligent acts or omissions of the Association or other
Owners;
(b) A policy of fire and casualty insurance with
extended coverage for the full replacement value of the Common Area
improvements, without deduction for depreciation, and clauses waiving
subrogation against Owners and the Association and persons upon the
Properties with the permission of an Owner, such insurance to afford
protection against loss or damage by fire and other hazards covered
by the standard extended coverage policy of hazard insurance;
(c) Fidelity coverage against dishonest or fraudulent
acts on the part of directors, officers, managers, trustees,
employees or volunteers who handle or who are responsible for
handling funds belonging to or administered by the Association in the
same amount set forth above for public liability insurance; and such
fidelity bonds shall name the Association as obligee and beneficiary,
and shall be written in an amount equal to at least the estimated
maximum of funds, including reserves, in the custody of the
Association or a management agent at any given time during the term
of the fidelity bond. However, the bond shall not be less than a sum
equal to three (3) months' aggregate assessments on all Lots, plus
reserve funds. The bond shall cover persons serving without
compensation by endorsement to the policy if not otherwise covered
under the policy. The Board of Directors may purchase such other
insurance as it may deem necessary, including, but not limited to,
plate glass insurance, medical payments, malicious mischief and
vandalism insurance, worker's compensation, and directors and
officer's liability.
Section 2. Waiver by Members. As to each of said
policies which will not be voided or impaired thereby, the Members
hereby waive and release all claims against the Association, the
Board, the Declarant and agents and employees of each of the
foregoing, with respect to any loss covered by such insurance,
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whether or not caused by negligence of or breach of any agreement by
said persons, but to the extent of insurance proceeds received in
compensation for such loss only.
Section 3. Other Insurance; Annual Review. The
Association may purchase such other insurance as it may deem
necessary, including, but not limited to, plate-glass insurance,
workmen's compensation, officers' and directors' liability, errors
and omission insurance and blanket policies of hazard insurance for
the Lots. The Board shall annually determine whether the amounts and
types of insurance it has obtained provide adequate coverage for the
Association in light of inflation, practice in the area in which the
Properties are located, or any other factor which tends to indicate
that either additional insurance policies or increased coverage under
existing policies are necessary or desirable to protect the interests
of the Association. If the Board determines that increased coverage
or additional insurance is appropriate, it shall obtain the same. In
the event that the Association decides to obtain blanket policies of
hazard insurance for the dwelling units on the Lots, neither the
Association nor the Owners shall be required to rebuild after
destruction by fire or other casualty or loss unless the dwelling
units on the Lots are insured under a blanket hazard insurance policy
which contains a "Replacement Cost Endorsement", providing for
replacement of the dwelling unit from the proceeds of such insurance.
The Association shall not have the authority to rebuild the dwelling
unit on a Lot and assess the cost of repair or replacement to the
Owner of the Lot experiencing such loss; provided, however, in the
event of a shortfall in funds necessary to rebuild a dwelling unit by
reason of undercoverage under the blanket policy, such shortfall for
purposes of reconstruction may be obtained through a Special
Assessment levied against all Lots in the Properties in accordance
with the procedures for a Special Assessment as set forth in the
Article of this Declaration entitled "Covenant For Maintenance
Assessments".
Section 4. Premiums and Proceeds. Insurance premiums
for any such blanket insurance coverage obtained by the Association
and any other insurance deemed necessary by the Association shall be
an expense to be included in the Regular Assessments levied by the
Association. The Association is hereby granted the authority to
negotiate loss settlements with the appropriate insurance carriers.
Any two (2) directors of the Association may sign a loss claim form
and release form in connection with the settlement of a loss claim,
and such signatures shall be binding on the Association and the
Members.
Section 5. Payment of Taxes or Premiums by
Institutional Holders of First Mortgages. Institutional Holders of
First Mortgages may, jointly or singly, pay taxes or other charges
which are in default and which may or have become a charge against
the Common Area, unless such taxes or charges are separately assessed
against the Owners, in which case the rights of Institutional Holders
of First Mortgages shall be governed by the provisions of their First
Mortgages. Institutional Holders of First Mortgages may, jointly or
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singly, also pay overdue premiums on hazard insurance policies, or
secure new hazard insurance coverage on the lapse of a policy, for
the Common Area and the Institutional Holder of a First Mortgage
making such payments shall be owed immediate reimbursement therefor
from the Association.
Section 6. Annual Notification of Insurance. The
Association shall, upon issuance or renewal of insurance, but no less
than annually, notify its Members as to the amount and type of
insurance carried by the Association, and it shall accompany this
notification with statements to the effect that the Association is or
is not insured to the levels specified by Section 1 of this Article,
and that if not so insured, Owners may be individually liable for the
entire amount of a judgment, and if the Association is insured to the
levels specified in Section 1 above, then Owners may be individually
liable only for their proportional share of assessments levied to pay
the amount of any judgment which exceeds the limits of the
Association's insurance.
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ARTICLE VIII
DAMAGE AND DESTRUCTION AFFECTING COMMON AREA
Section 1. Consent of Owners to Rebuild. If all or any
portion of the Common Area is damaged or destroyed by fire, or other
casualty, then neither the Board, the Association, or any agent or
employee thereof shall be required or permitted to take any action to
repair or rebuild the damaged portions, or to cause the damaged
portions to be repaired or rebuilt without the written consent of at
least fifty-one percent (51%) of the Members of each class as to the
manner of repair or reconstruction and the payment therefor, except
as provided in Section 2 of this Article in the event adequate
insurance proceeds are available as set forth therein.
Section 2. No Consent Required With Adequate Insurance.
Notwithstanding anything contained in Section 1 above to the
contrary, if the cost of repairing or rebuilding the portion of the
Common Area so damaged or destroyed does not exceed the amount of
insurance proceeds available to the Association, the Board shall be
authorized and required without the consent or approval of the
Members, to contract to repair or rebuild the damaged portions of the
Common Area substantially in accordance with the original plans and
specifications therefor. In the event any excess insurance proceeds
remain, or in the event of a decision by the Association not to
reconstruct or replace such damages or destroyed improvements, the
Board, in its sole discretion, may retain such sums in the general
funds of the Association or distribute pro rata all or a portion
thereof to the Owners, subject to the prior rights of Institutional
Holders of any first Mortgage whose interest may be protected by
insurance policies carried by the Association. The rights of an
Owner and the Institutional Holder of a first Mortgage on his Lot as
to such pro rata distribution shall be governed by the provisions of
the Mortgage encumbering such Lot.
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^RSS^S?SJ30ae3001XCCMls
ARTICLE IX
EMINENT DOMAIN
The term "taking" as used in this Article shall mean
condemnation by eminent domain or sale under threat of condemnation.
In the event of a threatened taking of all or any portion of the
Common Area or the improvements thereon, the Owners hereby appoint
the Board and such persons as the Board may delegate to represent all
of the Owners in connection with the taking. The Board shall act in
its sole discretion with respect to any awards being made in
connection with the taking and shall be entitled to make a voluntary
sale to the condemnor in lieu of engaging in a condemnation action.
Any awards received on account of the taking shall be paid to the
Association. In the event of a taking of less than all of the Common
Area, the rules as to restoration and replacement of the Common Area
and the improvements thereon shall apply as in the case of
destruction of improvements upon the Common Area. In the event of a
total taking, the Board may in its sole discretion retain any award
in the general funds of the Association or distribute pro rata all or
a portion thereof to the Owners. The rights of an Owner and the
Institutional Holder of a Mortgage on his Lot as to such pro rata
distribution shall be governed by the provisions of the Mortgage
encumbering such Lot.
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ARTICLE X
ARCHITECTURAL CONTROL
Section 1. Architectural Approval. No exterior
improvement or other structure shall be commenced, erected, altered
or maintained upon the Properties (except for all original
improvements constructed within the Properties by Declarant) nor
shall any exterior addition to or change or alteration to any Lot or
patio or balcony area be made, nor shall any change in original
exterior color and/or any structure be made until the plans and
specifications showing the nature, kind, shape, height, materials and
locations of the same shall have been submitted to and approved in
writing as to harmony of external design and location in relation to
the existing design of the Properties by the Board of Directors of
the Association. In the event the Board fails to approve or
disapprove such design and location within thirty (30) days after
said plans and specifications have been submitted to it, approval
will not be required, and this Article will be deemed to have been
fully complied with. The Board shall, from time to time, adopt and
promulgate Architectural Standards to be administered by the Board.
The Architectural Standards shall include among other things those
restrictions and limitations upon the Owners set forth below:
(a) Time limitations for the completion of the
architectural improvements for which approval is required pursuant to
the Architectural Standards;
(b) Conformity of completed architectural
improvements to plans and specifications approved by the Board;
(c) Such other limitations and restrictions as the
Board, in its reasonable discretion, shall adopt, including, without
limitation, the regulation of the following: construction,
reconstruction, exterior addition, change or alteration to or
maintenance of any building, including, without limitation, the
nature, kind, shape, height, materials, exterior color and surface
and location of such dwelling or structure.
Section 2. Nonliability for Approval of Plans.
Plans and specifications are not approved for engineering design, and
by approving such plans and specifications, the Board does not assume
any liability or responsibility therefor, or for any defect in an
structure constructed from such plans and specifications.
Section 3. Nonapplicability to Declarant. The
provisions of this Article shall not apply to any portion of the
Properties owned by Declarant prior to the construction on such
Properties by Declarant of a residential dwelling unit or prior to
the conveyance of such Lot by Declarant to a member of the public.
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ARTICLE XI
NOTICES
In each instance in which notice is to be given to the
Owner of a Lot, the same shall be in writing and may be delivered
personally, in which case personal delivery of such notice to one or
two or more co-owners of a Lot, or to any general partner of a
partnership owning such a Lot, shall be deemed delivery to all of the
co-owners or to the partnership as the case may be, and personal
delivery of the notice to any officer or agent for the service of
process of a corporation owning such Lot shall be deemed delivery to
the corporation or such notice may be delivered by United States
mail, certified or registered, postage prepaid, return receipt
requested, addressed to the Owner of such Lot at the most recent
address furnished by the Owner in writing for the purpose of giving
notice, or if no such address shall have been furnished, then to the
street address of such Lot, and any notice so deposited in the mail
within San Diego County, California, shall be deemed delivered forty-
eight (48) hours after such deposit. Any notice to .be given to the
Association may be delivered personally to any member of the Board,
or delivered in such other manner as may be authorized by the
Association. Any notice to be given to the Association shall be
delivered by the United States mail, certified or registered, postage
prepaid, return receipt requested, and any notice so deposited in the
mail within San Diego County, California, shall be deemed delivered
forty-eight (48) hours after such deposit.
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ARTICLE XII
RIGHTS OF LENDERS
Notwithstanding any provisions to the contrary as may be
provided elsewhere in this Declaration, Lenders shall have the
following rights:
Section 1. Notice to Institutional Holders of Default.
Any Institutional Holder of any Mortgage on a Lot shall be entitled
to receive, upon written request to the Association, written
notification from the Association of any default by the Owner
(trustor) of such Lot in the performance of such Owner's obligations
under the Declaration or the Association's Articles or By-Laws which
is not cured within thirty (30) days from the date of such default.
Section 2. Assessments on Foreclosure. Any
Institutional Holder of any First Mortgage who obtains title to a Lot
pursuant to the remedies provided in the Mortgage (but exclusive of a
deed in lieu of foreclosure), or through foreclosure of the First
Mortgage, shall not be liable for any claims for unpaid assessments
or charges against such Lot which accrued prior to the acquisition of
title to such Lot by the Institutional Holder of the First Mortgage.
Section 3. Right of First Refusal. Any Institutional
Holder of a Mortgage who comes into possession of a Lot pursuant to
the remedies provided in such Mortgage, or foreclosure of the
Mortgage, shall be exempt from any right of first refusal, and any
right of first refusal shall not impair the rights of an
Institutional Holder to:
(a) Foreclose or take title to a Lot pursuant to the
remedies provided in the Mortgage,
(b) Accept a deed (or assignment) in lieu of
foreclosure in the event of default by the Trustor of the Mortgage,
or
(c) Sell or lease a Lot acquired by the Institutional
Holder.
Section 4. Required Consent of Owners. Unless at least
two-thirds (2/3) of the Owners, excluding the vote of Declarant
(based on one vote for each Lot owned), have given their prior
written approval, the Association and the Owners shall not be
entitled to:
(a) Change the method of determining the obligations,
assessments (whether Regular or Special), dues or other charges which
may be levied against the Owner of a Lot;
(b) By act or omission seek to abandon, partition,
release, subdivide, encumber, sell or transfer any property or any
34
F:\REAL\636\30283001\CC8iRS I •r«v 06/29/95 ^ttlr
improvements which are owned, directly or indirectly, by the
Association;
(c) By act or omission change, waive or abandon any
scheme of regulations, or enforcement thereof, pertaining to the
architectural design of the dwellings situated on each Lot or the
upkeep of the Common Areas within the Properties;
(d) Use hazard insurance proceeds for losses to the
Common Area property for other than the repair, replacement or
reconstruction of such improvements;
(e) Fail to maintain fire and extended coverage
insurance on insurable Common Area property on a current replacement
cost basis in an amount not less than one hundred percent (100%) of
the insurable value (based on current replacement cost);
(f) Abandon or terminate the Association, except for
abandonment, partition or termination as may be provided by law;
(g) Fail to maintain an adequate reserve fund for the
replacement of equipment and facilities used for Common Area
maintenance.
Section 5. Rights of Institutional Holders. All
Institutional Holders of Mortgages on individual Lots shall, upon
written request to the Association, be entitled to:
(a) Inspect the books and records of the Association
during normal business hours;
(b) Receive an annual audited financial statement of
the Association within ninety (90) days provided, however, that such
audited statements shall be made available only if they have been
prepared by the Association in the regular course of business,
following the end of any fiscal year of the Association;
(c) Receive written notice of all meetings of the
Owners of the Association and shall be entitled to designate a
representative to attend all such meetings.
Section 6. Payment of Taxes and Insurance Premiums.
Institutional Holders of Mortgages on Lots within the Properties may,
jointly or singly, pay taxes or other charges which are in default
and which may or have become a charge or lien against any Common Area
property, if any, and may pay overdue premiums on hazard insurance
policies or secure hazard insurance coverage upon the lapse of a
policy for any Common Area property and the mortgagees making such
payments shall be owed immediate reimbursement therefor from the
Association.
Section 7. Priority on Distribution of Proceeds. No
Owner or any other party shall have priority over any rights of
Institutional Holders of Mortgages upon individual Lots pursuant to
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their Mortgages in the case of a distribution to Owners of insurance
proceeds or condemnation awards for losses to or a taking of all or
any portion of the commonly owned property, if any, and/or the
individual Lots and improvements thereon.
Section 8. Notice of Destruction or Taking. In the
event that any Lot or the improvements thereon or any commonly owned
property, if any, or portions thereof, are substantially damaged or
destroyed, or are made the subject of any condemnation proceeding in
eminent domain or are otherwise sought to be acquired by a condemning
authority, the Association shall promptly notify all Institutional
Holders of Mortgages affected by such destruction, taking or
threatened action.
Section 9. Insurance. Notwithstanding any other
provisions herein, the Association shall continuously maintain in
effect such casualty, flood and liability insurance and a fidelity
bond meeting the insurance and fidelity bond requirements for planned
unit development projects established by the Federal Home Loan
Mortgage Corporation, so long as it is a mortgagee or owner of a Lot
Within the project, except to the extent such coverage is not
available or has been waived in writing by the Federal Home Loan
Mortgage Corporation.
Section 10. Mortgage Protection Clause. No breach of
the covenants, conditions or restrictions herein contained, nor any
lien created hereby, shall defeat or render invalid the lien of any
first mortgage or first deed of trust made in good faith and for
value, but all of said covenants, conditions and restrictions shall
be binding upon and effective against any Owner whose title is
derived through foreclosure or trustee's sale, or otherwise.
Section 11. Conflicts. In the event of any conflicts
between any of the provisions of this Article and any other
provisions of the Declaration, the provisions of this Article shall
control.
36
r.v uo/*,,,:>
ARTICLE XIII
ENFORCEMENT OF BONDED OBLIGATIONS
In the event that the improvements to any commonly owned or
maintained property within the Properties have not been completed
prior to the issuance of a Final Subdivision Public Report covering
such tract by the Department of Real Estate of the State of
California, and the Association is obligee under a bond or other
arrangement (hereinafter the "Bond") to secure performance of the
commitment of Declarant to complete such improvements, the following
provisions shall apply:
(a) The Board shall consider and vote on the question
of action by the Association to enforce the obligations under the
Bond with respect to any improvements for which a Notice of
Completion has not been filed within sixty (60) days after the
completion date specified for such 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
improvement, the Board shall consider and vote on the aforesaid
question if a Notice of Completion has not been filed within thirty
(30) days after the expiration of such extension.
(b) In the event that the Board determines not to
initiate action to enforce the obligations under the Bond, or in the
event the Board fails to consider and vote on such question as
provided above, the Board shall call a special meeting of the Members
for the purpose of voting to override such decision or such failure
to act by the Board. Such meeting shall be called according to the
provisions of the By-Laws dealing with meetings of the Members, but
in any event such meeting shall be held not less than thirty-five
(35) days nor more than forty-five (45) days after receipt by the
Board of a petition for such meeting, signed by Members representing
five percent (5%) or more of the total voting power of the
Association.
(c) The only Members entitled to vote at such meeting
shall be the Owners other than Declarant. A vote at such meeting of
a majority of the voting power of such Members, other than 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 name of the Association.
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ARTICLE XIV
EASEMENTS AND OWNERS7 PROPERTY RIGHTS
Section 1. Owners' Easements of Enjoyment. Every Owner
shall have a right and easement of ingress and egress and of
enjoyment in, to and over the Common Area (except for any slope areas
on the Common Area) which shall be appurtenant to and shall pass with
title to every Lot, subject to the following provisions:
(a) The right of the Association to reasonably limit
the number of guests of Owners using the Common Area facilities;
(b) The right of the Association to establish uniform
rules and regulations pertaining to the use of the Common Area;
(c) The right of the Association in accordance with
the Articles, By-Laws and this Declaration, with the vote or written
assent of a majority of the total voting power of the Association,
which shall include a majority of the votes residing in Members other
than the Declarant, to borrow money for the purpose of improving the
Common Area and the facilities and in aid thereof, and, subject to
the provisions of the Article of this Declaration entitled "RIGHTS OF
LENDERS," to mortgage, pledge, deed in trust, or hypothecate any or
all of its real or personal property as security for money borrowed
or debts incurred, provided that the rights of such Institutional
Holders of Mortgages shall be subordinated to the rights of the
Owners;
(d) Subject to the provisions of the Article of this
Declaration entitled "RIGHTS OF LENDERS," the right of the
Association to dedicate, release, alienate or transfer the Common
Area to any public agency, authority, utility or other person for
such purposes and subject to such conditions as may be agreed to by
the Members. No such dedication, release, alienation or transfer
shall be effective, unless an instrument signed by Members entitled
to cast a majority of the total voting power of the Association,
which shall include a majority of the votes residing in Members other
than the Declarant, agreeing to such dedication, release, alienation
or transfer has been recorded;
(e) The rights and reservations of Declarant as set
forth in this Declaration, including the right of Declarant and its
sales agents, representatives and prospective purchasers, to the non-
exclusive use of the Common Area and any facilities thereof, without
cost, for access, ingress, egress, use and enjoyment, in order to
dispose of the Properties as provided herein, until the earlier of
(i) five (5) years from the conveyance of the first Lot by Declarant,
or (ii) the close of escrow for the sale of all of the Lots in the
Properties; provided, however, that such use shall not unreasonably
interfere with the rights of enjoyment of the other Owners as
provided herein;
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(f) The right of the Board to suspend the rights and
easements of use and enjoyment of the recreational facilities, if
any, located on the Common Area of any Member, and the persons
deriving such rights and easements from any Member, for any period
during which the payment of any assessment against such Member and
his Lot remains delinquent; and, after notice and hearing with an
opportunity to be heard, to impose monetary penalties or suspend such
use rights and easements for a reasonable period of time as
determined by the Board for any violation of this Declaration,
Articles, By-Laws or rules and regulations of the Association, it
being understood that any suspension for either non-payment of any
assessment or breach of such restrictions shall not constitute a
waiver or discharge of the Member's obligation to pay assessments as
provided herein;
(g) The right of the Association, acting through the
Board, to reasonably restrict access to areas of the Common Area.
Section 2. Waiver of Use. No Owner may exempt himself
from personal liability for assessments duly levied by the
Association, nor release the Lot or other property owned by him from
the liens and charges hereof, by waiver of the use and enjoyment of
the Common Area and the facilities thereon or by abandonment of his
Lot or any other property in the Properties.
Section 3. Owners7 Rights and Duties; Utilities. The
rights and duties of the Owners of Lots within the Properties with
respect to sanitary sewer and water, electricity, gas and telephone
and cable television lines and drainage facilities shall be governed
by the following:
(a) Wherever sanitary sewer house connections and/or
water house connections or electricity, gas, or telephone and cable
television lines or drainage facilities are installed within the
Properties, which connections, lines or facilities, or any portion
thereof, lie in or upon Lots owned by persons other than the Owner of
a Lot served by said connections, the Owners of any Lots served by
said connections, lines or facilities shall have the right, and are
hereby granted an easement to the full extent necessary therefor, to
enter upon the Lots or to have utility companies enter upon the Lots
within the Properties in or upon which said connection, lines or
facilities, or any portion thereof, lie, to repair, replace and
generally maintain said connections as and when the same may be
necessary as set forth below;
(b) Wherever sanitary sewer house connections and/or
water house connections or electricity, gas or telephone or cable
television lines or drainage facilities are installed within the
Properties, which connections serve more than one Lot, the Owner of
each Lot served by said connections shall be entitled to the full use
and enjoyment of such portions of said connections as service his
Lot;
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(c) In the event of a dispute between Owners with
respect to the repair or rebuilding of said connections, or with
respect to the sharing of the cost thereof, then upon written request
of one of such Owners addressed to the Association, the matter shall
be submitted to the Board of Directors who shall decide and make an
assessment against any or all of the Owners involved, which
assessment shall be collected and enforced in the manner provided by
this Declaration.
Section 4. Common Area Easements. The Association
shall own the Common Area for the use, enjoyment and convenience of
the Owners. Each Lot within the Properties subject to this
Declaration is hereby declared to have an easement over all of the
Common Area, for the benefit of the Lots, the Owners of the Lots, and
each of them, and for their respective families, guests, invitees,
tenants and contract purchasers, for all of the purposes and uses
hereinabove set forth, and without limiting the generality of the
foregoing, for ingress and egress over and through the Common Area.
Section 5. Party Walls and Fences. Those Owners who
have a common wall or fence adjoining their Lots and such a wall or
fence dividing the Lots upon which their homes are constructed, shall
equally have the right to the use of such wall or fence except that
each shall have the exclusive right to the use of the interior
surface of the wall or fence on his side. Neither Owner shall use any
portion of the wall or fence so as to interfere with the use and
enjoyment of the other Owner. In the event that any portion of such
wall or fence, except the interior surface of one side, is damaged or
injured from any cause, other than the act or negligence of either
party, it shall be repaired or rebuilt at their joint expense.
Section 6. Creation of Easements. Each of the
easements provided for in this Declaration shall be deemed to be
established upon the recordation of this Declaration, and shall
thenceforth be deemed to be covenants running with the land for the
use and benefit of the Lots superior to all other encumbrances
applied against or in favor of any portion of the Properties which is
the subject of this Declaration. In furtherance of the easements
provided for in this Declaration the individual grant deeds to Lots
may, but shall not be required to, set forth said easements.
Section 7. Amendment to Eliminate Easements. This
Declaration cannot be amended to modify or eliminate the easements
reserved to Declarant without prior written approval of Declarant,
and any attempt to do so shall have no effect. Any attempt to modify
or eliminate this Section shall likewise require the prior written
approval of Declarant.
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ARTICLE XV
COMPLIANCE WITH CIVIL CODE SECTIONS 1354. 1365 AND 1365.5
Section 1. Budgets and Financial Statements. The Board
of Directors of the Association shall have the below described
financial information of the Association regularly prepared and
distributed to (i) all Members of the Association as provided herein
regardless of the number of Members or the amount of assets of the
Association, and (ii) Declarant for a period terminating ten (10)
years after the closing of the final sale escrow for a Lot in the
Properties:
(a) A pro forma operating budget for the immediately
ensuing fiscal year of the Association which shall include at least
the following information shall be distributed no more than sixty
(60) days and not less than forty-five (45) days prior to the
beginning of the fiscal year of the Association:
(i) Estimated revenue and expenses on an
accrual basis;
(ii) A summary of the Association's reserves
based upon the most recent review or study conducted pursuant to
Civil Code Section 1365.5, which shall be printed in bold type, and
shall include all of the following:
(A) The current estimated replacement cost,
estimated remaining life, and estimated useful life of each major
component;
(B) As of the end of the fiscal year for
which the study is prepared, (1) the current estimate of the amount
of cash reserves necessary to repair, replace, restore or maintain
the major components; and (2) the current amount of accumulated cash
reserves actually set aside to repair, replace, restore, or maintain
major components;
(C) The percentage that the amount
determined for purposes of subparagraph (B)(2) is of the amount
determined for purposes of subparagraph (B)(1).
The summary as required by this subsection shall not be admissible in
evidence to show improper financial management of an association,
provided that other relevant and competent evidence of the financial
condition of the association is not made inadmissible by this
provision.
(iii) A statement as to whether the Board of
Directors of the Association has determined or anticipates that the
levy of one or more Special Assessments will be required to repair,
replace or restore any major component or to provide adequate
reserves therefor;
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(iv) A general statement setting forth the
procedures used by the Board in the calculation and establishment of
reserves to defray the costs of repair, replacement or additions to
major components of the Common Areas and facilities for which the
Association is responsible.
(b) A balance sheet - as of a designated accounting
date which shall be the last day of the month closest in time to six
(6) months from the date of closing of escrow representing the first
sale of a Lot in the Properties - and an operating statement for the
period from the date of the first closing to the designated
accounting date, shall be distributed to each Member within sixty
(60) days after the designated accounting date. This operating
statement shall include a schedule of assessments received and
receivable identified by the Lot within the Properties and the name
of the person or entity assessed therefor.
(c) An annual report which shall consist of at least
the following shall be distributed within one hundred twenty (120)
days after the close of the fiscal year of the Association:
(i) A balance sheet as of the end of the
fiscal year;
(ii) An operating (income) statement for the
fiscal year;
(iii) A statement of changes in financial
position for the fiscal year; and
(iv) For any fiscal year in which the gross
income of the Association exceeds Seventy-Five Thousand Dollars
($75,000.00), a copy of the review of the annual report prepared in
accordance with generally accepted accounting principles by a
licensee of the California State Board of Accountancy. Such
financial report shall include any information required to be
reported under Section 8322 of the California Corporations Code.
(v) A summary as required by Civil Code
Section 1354.
Section 2. Certification of Report. If the report
referred to in subsection (c) above is not prepared by an independent
accountant, it shall be accompanied by the certificate of an
authorized officer of the Association that the statement was prepared
from the books and records of the Association without independent
audit or review.
Section 3. Alternative Financial Statements. In lieu
of the distribution of the pro forma operating budget required by
this Article, the Board of Directors may elect to distribute a
summary of the items described in Section l(c)(i), (ii), (iii) and
(iv) to all Members of the Association with a written notice that the
pro forma operating budget is available at the business office of the
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Association or at another suitable location within the boundaries of
the Properties and that copies will be provided upon request and at
the expense of the Association. If any Member requests that a copy
of the pro forma operating budget, including items described in
Section l(c)(i), (ii), (iii) and (iv), be mailed to the Member, the
Association shall provide such copies to the Member by first-class
United States mail at the expense of the Association and mailed
within five (5) days. The written notice that is distributed to each
of the Association Members shall be in at least 10-point bold type on
the front page of the summary of the budget.
Section 4. Minutes. The minutes, minutes proposed for
adoption that are marked to indicate draft status, or a summary of
the minutes of any meeting of the Board, other than an executive
session, shall be available to Members within thirty (30) days of the
meeting. The minutes, proposed minutes, or summary of the minutes
shall be distributed to any Member of the Association upon request
and upon reimbursement of the Association's costs in making that
distribution. Members of the Association shall be notified in
writing at the time that the pro forma budget, required in Section
1365 of the California Civil Code, is distributed, or at the time of
any general mailing to the entire membership of the Association of
their right to have copies of the minutes of meetings of the Board
and how and where those minutes may be obtained.
Section 5. Policies on Remedies. In addition to
financial statements, the Board of Directors shall annually
distribute within sixty (60) days prior to the beginning of the
fiscal year of the Association a statement of the Association's
policies and practices in enforcing its lien rights and other legal
remedies against Members for defaults in the payment of Regular and
Special Assessments including the recording and foreclosing of liens
against Members' Lots.
Section 6. Fiscal Duties of Board.
(a) The Board of Directors of the Association shall
do all of the following:
(i) Cause a current reconciliation of the
Association's operating accounts to be made and review the same on at
least a quarterly basis;
(ii) Cause a current reconciliation of the
Association's reserve accounts to be made and review the same on at
least a quarterly basis;
(iii) Review, on at least a quarterly basis,
the current year's actual reserve revenues and expenses compared to
the current year's budget;
(iv) Review the most current account
statements prepared by the financial institutions where the
Association has its operating and reserve accounts; and
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(v) Review an income and expense statement
for the Association's operating and reserve accounts on at least a
quarterly basis.
Section 7. Withdrawal of Funds from the Association's
Reserve Accounts.
(a) Withdrawal of funds from the Association's
reserve accounts shall require the signatures of either:
(i) Two members of the Board; or
(ii) One member of the Board and one officer of
the Association who is not also a member of the Board.
(b) The Board shall not expend funds designated as
reserve funds for any purpose other than the repair, restoration,
replacement or maintenance of, or litigation involving the repair,
restoration, replacement or maintenance of, major components which
the Association is obligated to repair, restore, replace or maintain
and for which the reserve fund was established. However, the Board
may authorize the temporary transfer of money from a reserve fund to
the Association's general operating fund to meet short-term cash flow
requirements or other expenses, provided the Board has made a written
finding, duly recorded in the Board's minutes, explaining the reasons
that the transfer is needed, and describing when and how the money
will be repaid to the reserve fund. The transferred funds shall be
restored to the reserve fund within one (1) year of the date of the
initial transfer, except that the Board may, upon making a finding
supported by documentation that a temporary delay would be in the
best interests of the Project, temporarily delay the restoration.
The Board shall exercise prudent fiscal management in delaying
restoration of these funds and in restoring the expended funds to the
reserve account, and shall, if necessary, levy a Special Assessment
to recover the full amount of the expended funds within the time
limits required by this subparagraph. This Special Assessment is
subject to the limitation imposed by Section 1366 of the Civil Code,
as set forth in the Section entitled "Special Assessments for Capital
Improvements and Limitation on Increases In Special Assessments" of
the Article entitled "Covenant for Maintenance Assessments" of this
Declaration, unless the Special Assessment is to pay for legal costs
associated with litigation involving the repair, restoration,
replacement or maintenance of major components which the Association
is obligated to repair, restore, replace or maintain. The Board may,
at its discretion, extend the date the payment on the Special
Assessment is due. Any extension shall not prevent the Board from
pursuing any legal remedy to enforce the collection of an unpaid
Special Assessment.
(c) When the decision is made to use reserve funds or
to temporarily transfer money from the reserve fund to pay for
litigation, the Association shall notify the Members of the
Association of that decision in the next available mailing to all
Members pursuant to Section 5016 of the Corporations Code, and of the
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availability of an accounting of those expenses. Unless the
governing documents impose more stringent standards, the Association
shall make an accounting of expenses related to the litigation on at
least a quarterly basis. The accounting shall be made available for
inspection by members of the Association at the Association's office.
(d) At least once every three (3) years, the Board
shall cause a study of the reserve account requirements of the
Project to be conducted if the current replacement value of the major
components which the Association is obligated to repair, replace,
restore or maintain is equal to or greater than one-half of the gross
budget of the Association for any fiscal year. The Board shall
review this study annually and shall consider and implement necessary
adjustments to the Board's analysis of the reserve account
requirements as a result of that review. This reserve study shall at
a minimum include:
(i) Identification of the major components
which the Association is obligated to repair, replace, restore or
maintain which, as of the date of the study, have a remaining useful
life of less than 30 years;
(ii) Identification of the probable
remaining useful life of the components identified in subparagraph
(i) above as of the date of the study;
(iii) An estimate of the cost of repair,
replacement, restoration or maintenance of the components identified
in subparagraph (i) above during and at the end of their useful life;
(iv) An estimate of the total annual
contribution necessary to defray the cost to repair, replace, restore
or maintain the components identified in subparagraph (i) above
during and at the end of their useful life, after subtracting total
reserve funds as of the date of the study.
(e) As used in this Section, "reserve accounts" means
moneys that the Board has identified for use to defray the future
repair or replacement of, or additions to, those major components
which the Association is obligated to maintain.
(f) As used in this Section, "reserve account
requirements" means the estimated funds which the Board has
determined are required to be available at a specified point in time
to repair, replace or restore those major components which the
Association is obligated to maintain.
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ARTICLE XVI
GENERAL PROVISIONS
Section 1. Enforcement. The Association, or any Owner
or the successor in interest of an Owner, shall have the right to
enforce by proceedings at law or in equity, all restrictions,
conditions, covenants, reservations, liens and charges now or
hereafter imposed by the provisions of this Declaration or any
amendment thereto, including the right to prevent the violation of
any such restrictions, conditions, covenants or reservations and the
right to recover damages or other dues for such violation; provided,
however, that with respect to assessment liens, the Association shall
have the exclusive right to the enforcement thereof. Failure by the
Association or by any Owner to enforce any covenant, condition or
restriction herein contained shall in no event be deemed a waiver of
the right to do so thereafter. In any action to enforce the terms of
this Declaration, the prevailing party shall be awarded reasonable
attorneys' fees and costs.
Section 2. Severability. Should any of the covenants
contained in this Declaration be void or be or become unenforceable
in law or in equity, the remaining portions of this Declaration
shall, nevertheless, be and remain in full force and effect.
Section 3. Term. Subject to the limitations set forth
in Section 4 of this Article, this Declaration and the covenants
herein contained shall be in effect until December 31, 2045, and
shall automatically be extended for successive periods of ten (10)
years unless within six (6) months prior to the expiration of the
initial term or any ten (10) year renewal period a written agreement
executed by the then record Owners of more than three-fourths (3/4)
of the Lots within the Properties shall be placed on record in the
Office of the County Recorder of the County of San Diego, by the
terms of which agreement the effectiveness of this Declaration is
terminated or the covenants herein contained are extinguished in
whole or in part as to all or any part of the property then subject
thereto.
Section 4. Amendments. Subject to the rights of
lenders as set forth in the Article of this Declaration entitled
"RIGHTS OF LENDERS," this Declaration of Covenants, Conditions and
Restrictions may be amended only by the affirmative assent or vote of
both (i) sixty-seven percent (67%) of the voting power of the
Association, including the voting power of the Declarant, and (ii)
sixty-seven percent (67%) of the voting power of Members other than
Declarant; provided, however, that the percentage of voting power
necessary to amend a specific clause or provision shall not be less
than the percentage of affirmative votes prescribed for action to be
taken under that clause; provided further, that if the two-class
voting structure as provided in this Declaration is still in effect,
this Declaration may not be amended without the vote or written
assent of sixty-seven percent (67%) of the voting power of each class
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of Members. This amendment provision shall not be amended to allow
amendments by the assent or vote of less than the prescribed
percentage of voting power required for amendments hereof; provided,
however, that in compliance with California Civil Code Section
1356(a), the Board of Directors of the Association or any Owner of a
Lot may petition the Superior Court of San Diego County for an order
reducing the percentage of the affirmative votes necessary for such
amendment. An amendment or modification shall be effective when
executed by the President and Secretary of the Association who shall
certify that the amendment or modification has been approved as
hereinabove provided, and recorded in the Official Records of San
Diego County, California.
Section 5. Nonliability of Officials. To the fullest
extent permitted by law, neither the Board, nor any committee of the
Association or any member of such Board or committee shall be liable
to any Member of the Association for any damage, loss or prejudice
suffered or claimed on account of any decision, approval or
disapproval of plans or specifications (whether or not defective),
course of action, act, omission, error, negligence or the like made
in good faith within which such Board, committees or persons
reasonably believed to be the scope of their duties.
Section 6. Construction. The provisions of this
Declaration shall be liberally construed to effectuate its purpose of
creating a uniform plan for the development of a residential
community or tract and for the maintenance of the Common Area. The
Article and Section headings have been inserted for convenience only,
and shall not be considered or referred to in resolving questions of
interpretation or construction.
Section 7. Singular Includes Plural. Whenever the
context of this Declaration requires same, the singular shall include
the plural and the masculine shall include the feminine.
Section 8. Nuisance. The result of every act or
omission, whereby any provision, condition, restriction, covenant,
easement or reservation contained in this Declaration is violated in
whole or in part, is hereby declared to be and constitutes a
nuisance, and every remedy allowed by law or equity against a
nuisance, either public or private, shall be applicable against every
such result, and may be exercised by the Association, or any other
land owner in the Properties. Such remedy shall be deemed cumulative
and not exclusive.
Section 9. Conflicts. In case of any conflict between
this Declaration and the Articles of Incorporation or By-Laws of the
Association, this Declaration shall control.
Section 10. Attorneys' Fees. In the event of any
controversy or claim respecting this Declaration, or in connection
with the enforcement of this Declaration, the prevailing parties
shall be entitled, in addition to all expenses, costs and damages, to
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reasonable attorneys' fees, whether or not such controversy or claim
is litigated and prosecuted to judgment.
Section 11. The Declaration. By acceptance of a deed or
by acquiring any ownership interest in any of the real property
included within this Declaration, each person or entity, for himself
or itself, his heirs, personal representatives, successors,
transferees and assigns, binds himself, his heirs, personal
representatives, successors, transferees and assigns, to all of the
provisions, restrictions, covenants, conditions, rules and
regulations now or hereafter imposed by this Declaration and any
amendments thereof. In addition, each such person by so doing
thereby acknowledges that this Declaration sets forth a general
scheme for the improvement and development of the real property
covered hereby, and hereby evidences his intent that all the
restrictions, conditions, covenants, rules and regulations contained
herein shall run with the land and be binding on all subsequent and
future Owners, grantees, purchasers, assignees, and transferees
thereof. Furthermore, each such person fully understands and
acknowledges that this Declaration shall be mutually beneficial,
prohibitive and enforceable by the various subsequent and future
Owners.
IN WITNESS WHEREOF, the undersigned, being the Declarant
herein, has executed this Declaration on the day and year first above
written.
LMD PACIFIC POINTE, LLC,
a California limited 'liability company
BY: LUCAS & MERCIER DEVELOPMENT, INC.,
a California corporation
Managing Member
By:
Its:
By:
Its:
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