HomeMy WebLinkAboutCT 99-01; Carlsbad Beach Estates; Tentative Map (CT) (14)RECORDING REQUESTED BY )
AND )
AND WHEN RECORDED, MAIL TO: )
THE ORIGINAL OF THIS DOCUHENT
UAS RECORDED ON OCT 09, 2000
DOOMNT NUMBER 2000-0559562
GUGQRY J. SHITH, CCUWY RECORDER
SfiN DIEGO COUNTY RECORDER'S OFICE
TIHE:8:00 AH
BRIAN D. GREENBERG, ESQ.
ONE AMERICA PLAZA
SUITE 940
600 WEST BROADWAY
SAN DIEGO, CA 92101-3362
(Space Above for Recorder's Use)
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
CARLSBAD BEACH ESTATES
MMDS259029
CC4SS/C3E/
10/5/2000
TABLE OF CONTENTS
FOR
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
CARLSBAD BEACH ESTATES
1. Definitions 3
1.1. Architectural Committee or Committee 3
1.2. Articles 3
1.3. Assessment, Annual 3
1.4. Assessment, Capital Improvement 3
1.5. Assessment, Reconstruction 4
1.6. Assessment, Special 4
1.7. Association 4
1.8. Association Maintenance Funds 4
1.9. Association Property Module 5
1.10. Beneficiary 5
1.11. Board or Board of Directors 5
1.12. Budget 5
1.13. Bylaws 5
1.14. City 5
1.15. Close of Escrow 5
1.16. Common Expenses 6
1.17. Condominium 6
1.18. Condominium Common Area Module 7
1.19. Condominium Plan 7
1.20. Condominium Property 7
1.21. Declarant 8
1.22. Declaration 8
1.23. Deed of Trust 8
1.24. ORE 8
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1.25. Family 8
1.26. FHA 8
1.27. FHLMC 8
1.28. Fiscal Year 8
1.29. FNMA 9
1.30. GNMA 9
1.31. Improvements 9
1.32. Manager 9
1.33. Member, Membership 9
1.34. Mortgage 9
1.35. Mortgagee, Mortgagor 10
1.36. Notice and Hearing 10
1.37 . Owner 10
1.38. Person 10
1.39. Property or Proj ect 10
1.40. Record, File, Recordation 10
1.41. Residence 10
1.42. Restrictions 11
1.43. Rules and Regulations 11
1.44. Separate Interest or Unit 11
1.45. Separate Interest or Lot 11
2. CARLSBAD BEACH ESTATES HOMEOWNERS ASSOCIATION 12
2.1. Organization of Association 12
2.2. Duties and Powers 12
2.3. Membership 13
2.4. Transfer 13
2.5. Classes of Membership 14
2.6. Voting Rights 14
2.7. Repair and Maintenance by the Association 16
2.8. Unsegregated Real Property Taxes 17
2.9. Repair and Maintenance by Owners 18
3. Rights in Condominium Common Area Module and Association
Property Module 18
3.1. Association Easement 18
3.2. Partition 18
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3.3. Members' Easements in Common Property 18
3.4. Extent of Members' Easements 19
3.5. Delegation of Use 20
3.6. Waiver of Use 20
3.7. Damage by Condominium Owner Member 21
3.8. Damage by Lot Owner Member 22
4. Architectural Review Committee 23
4.1. Members of Committee 23
4.2. Review of Plans and Specifications 24
4.3. Meetings of the Committee 26
4.4 No Waiver of Future Approvals 26
4.5. Compensation of Members 26
4.6. Inspection of Work 26
4.7. Scope of Review 28
4.8. Variances 28
4.9. Appeals 29
5. Maintenance Funds and Assessments 29
5.1. Personal Obligation of Assessments 29
5.2. Maintenance Funds of Association 30
5.3. Purpose of Assessments 30
5.4. Limitations on Annual Assessment Increases 31
5.5. Annual Assessments/Commencement-Collection 33
5.6. Capital Improvement Assessments ,34
5.7. Delinquency 35
5.8. Creation and Release of Lien 36
5.9. Enforcement of Liens 37
5.10. Priority of Assessment Lien 38
6. Property Easements and Rights of Entry 39
6.1. Easements 39
7. Declarant's Rights and Reservations 41
7.1. Declarant's General Rights and Reservations 41
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8. Residence and Use Restrictions 42
8.1. Single Family Residences 43
8.2. Parking and Vehicular Restrictions 43
8.3. Nuisances 45
8.4. Signs 45
8.5. Antennas/Satellite Dishes 46
8.6. Animal Regulations 47
8.7. Business or Commercial Activity 48
8.8. Rubbish Removal 48
8.9. Further Subdivision 49
8.10. Drainage 49
9. Insurance 50
9.1. Duty to Obtain Insurance; Types 50
9.2. Waiver of Claims Against Insurance 51
9.3. Right and Duty of Owners to Insure 52
9.4. Notice of Expiration Requirements 52
9.5. Insurance Premiums 52
9.6. Trustee for Policies 53
9.7. Action as Trustee 54
9.8. Restoration of the Condominium Common Area Module/
Association Property Module 54
9.9. Sale of Property and Right to Partition 55
9.10. Repair Procedures 55
9.11. Procedures When Repairs are Not Made 56
9.12. Insurance Review 56
10. Eminent Domain-Association Property Module 57
10.1. Condemnation of Association Property Module 57
10.2. Notice to Owners and Mortgagees 57
10.3. Sale by Consent 57
10.4. Distribution of Proceeds 57
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11. Eminent Domain-Condominium Common Area Module 58
11.1. Condemnation of Condominium Common Area Module 58
11.2. Notice to Owners and Mortgagees 58
11.3. Sale by Consent 58
11.4. Distribution of Proceeds 58
12. Rights of Mortgagees 59
13. Duration and Amendment 64
13.1. Duration 64
13.2. Termination and Amendment 64
13.3. Protection of Declarant 68
14. Enforcement of Certain Bonded Obligations 69
14.1. Consideration by Board of Directors 69
14 . 2 . Consideration by the Members 69
15 . General Provisions 70
15.1. Enforcement of Restrictions 70
15.2. Severability 72
15.3. Interpretation 72
15.4. Mergers or Consolidations 72
15.5. Use of Recreational Facilities 73
15.6. No Public Right or Dedication 73
15.7. Nonliability and Indemnification 73
15.8. Notices 76
15.9. Priorities and Inconsistencies 76
15.10. Constructive Notice and Acceptance 77
15.11. Declarant's Right to Cure Alleged Defects 77
15.12 . Arbitration of Alleged Defect Claims 78
15.13. No Representations or Warranties 81
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16. Annual Inspection 81
16.1. Duty to Inspect 81
16.2. Purpose of Inspection 81
16.3. Scope of Inspection 81
16.4. Experts and Consultants 81
16.5. Report to Owners 82
17. Alternative Dispute Resolution 83
17.1 Responsibilities of Owner(s) ; Association 83
17.2. Role of Board of Directors 83
18. Organizational Documentation 85
18.1. Role of Declarant 85
19. Causes of Action in Tort 87
19.1. Lawsuits Against the Association 87
20. Documentation to be provided Prospective Purchaser 88
20.1. Owner Requirements of Civil Code Section 1368 88
20.2. Association Requirements of Civil Code Section
1368 89
20.3. Failure to comply with Article XX 89
20.4. Validity of Transfer 89
20.5. Additional Owner Requirements 89
21. Civil Code Section 1375 90
21.1. Review of Civil Code Section 1375 90
22. Managing Agent 90
22.1. Written Disclosure of Prospective Managing Agent ...90
22.2. Definition of "managing agent" 91
22.3. Handling of Association Funds by Managing Agent ....92
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23. Requirements of the City of Carlsbad 94
23.1. Conditions of Approval of Carlsbad Beach Estates ...94
23.2. General Enforcement by the City 94
23.3. Notice and Amendment 94
23.4. Failure of Association to Maintain Common Area Lots
and Easements 95
23.5. Special Assessments Levied by the City 95
23.6. Sight Distance Corridor Encroachment 96
23.7. National Pollutant Discharge Elimination System
(NPDES) permit 96
23.8. Prohibition on Parking 97
23.9. Landscape Maintenance Responsibilities 97
23.10 . Balconies, trellies, and decks 97
23.11. Prohibition on additional decks, balconies or
patios 97
23 .12 . Prohibition on room additions 97
23.13. Prohibition on Replacement or Remodeling of
Structure 97
24 . Cost Center 98
24.1. Definition of Terms 98
24.2. Authorization 98
24.3. Amendment of Provisions 99
24.4. Prohibition on Commingling 99
24.5. Prohibition on use of Cost Center funds 99
24.6. Accounting/Annual Review and Disclosure 99
25. Maintenance of Condominium 100
25.1. Common Roof and Common Foundation System 100
25.2. Application of General Rules 100
25.3. Repair, Maintenance and Replacement of Common
Structures 100
25.4. Allocation of Costs 101
25.5. Change to Exteriors 102
25.6. Damage and Destruction 103
25.7. Weatherproofing 104
25.8. Encroachment Easements 104
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25.9. Maintenance, Repair and Reconstruction Easements ..105
25.10. Roof Easement; Drainage 105
25.11. Owner's Insurance 106
25.12. Dispute Resolution 106
25.13. Mechanic's Liens 107
SUBORDINATION 110
SUBORDINATION 112
SUBORDINATION 114
SUBORDINATION 116
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
CARLSBAD BEACH ESTATES
THIS DECLARATION is made by CARLSBAD BEACH GROUP INVESTORS,
L.L.C., A CALIFORNIA LIMITED LIABILITY COMPANY and by H. David
Buckmaster, Owner and Patricia A. Buckmaster, Owner (collectively
referred to herein as "Declarant") .
PREAMBLE:
A. Declarant is the owner of certain real property located
in the City of Carlsbad, County of San Diego, State of California,
described as follows:
LOT 5 OF CARLSBAD BEACH ESTATES, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 14047, FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, SEPTEMBER 29, 2000 ("Condominium
Property").
LOT 1 TO LOT 4, INCLUSIVE, OF CARLSBAD BEACH ESTATES, IN THE
CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 14047, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 29, 2000.
B. It is the desire and intention of Declarant to create
a "condominium project," as defined in Section 1351 (f) of the
California Civil Code and a "planned development, as defined in
Section 1351 (g) of the California Civil Code, to subdivide The
Property (as hereinafter defined) as authorized by Section 66427 of
the California Government Code into "condominiums" as defined in
Section 783 of the California Civil Code and into "separate
interests" as defined in Section 1351 (1)(2) and 1351 (1)(3) of
the California Civil Code, and to impose mutually beneficial
restrictions under a general plan of improvement for the benefit of
all the condominiums and Lots created pursuant to the Davis-
Stirling Common Interest Development Act.
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C. Declarant hereby declares that all the Property is to be
held, conveyed, hypothecated, encumbered, leased, rented, used,
occupied and improved subject to the limitations, restrictions,
reservations, rights, easements, conditions and covenants contained
in this Declaration, all of which are declared and agreed to be in
furtherance of a plan for the protection, subdivision, maintenance,
improvement and sale of the Property for the purpose of enhancing
the value, desirability and attractiveness of the Property. All
provisions of this Declaration, including without limitation the
easements, uses, obligations, covenants, conditions and
restrictions hereof, are hereby imposed as equitable servitude
upon the Property. All of the limitations, restrictions,
reservations, rights, easements, conditions and covenants herein
shall run with and burden the Property and shall be binding on and
for the benefit of all of the Property and all Persons having or
acquiring any right, title or interest in the Property, or any part
the, and their successive owners and assigns.
D. Declarant, its successors, assigns and grantees, covenant
and agree that the undivided interest in the Condominium Common
Area Module, the membership in the Association, any easements
conveyed therewith and the fee title to each respective Unit
conveyed therewith shall not be separated or separately conveyed
and each such undivided interest, membership and easement shall be
deemed to be conveyed or encumbered with its respective Unit or
even though the description in the instrument of conveyance or
encumbrance may refer only to the Unit; provided, however, that
this restriction upon the severability of the component interests
of the Condominiums shall not extend beyond the period for which
the right to partition the Property is suspended in accordance with
Section 1359 of the California Civil Code and the provisions of
Article X hereof. Any conveyance by an Owner of a Condominium, or
any portion the, shall be presumed to convey the entire
Condominium, together with a membership in the Association.
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ARTICLE I
1. Definitions.
Unless otherwise expressly provided, the following words and
phrases when used herein shall have the following specified
meanings.
1.1. Architectural Committee or Committee.
Architectural Committee or Committee shall mean the Architectural
Review Committee created pursuant to Article IV hereof.
1.2. Articles.
Articles shall mean the Articles of Incorporation of the
Association filed or to be filed in the Office of the Secretary of
State of the State of California, as such Articles may be amended
from time to time.
1.3. Assessment, Annual.
Annual Assessment shall mean a charge against a particular Owner
and the Condominium and the Lot, which represents a portion of the
Common Expenses which are to be levied among all of the Owners of
the Condominiums and the Lots in the Project in the manner and
proportions provided herein.
1.4. Assessment. Capital Improvement.
Capital Improvement Assessment shall mean a charge which the Board
may from time to time levy against each Owner of a Condominium or
a Lot which represents a portion of the cost to the Association for
installation or construction of any capital improvements on any of
the Association Property Module. Such charge shall be levied among
all the Owners in the Project in the same proportions as are Annual
Assessments.
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1.5. Assessment. Reconstruction.
Reconstruction Assessment shall mean a charge which the Board may
from time to time levy against a particular Owner and the
Condominium, representing a portion of the cost to the Association
for reconstruction of any Improvements to the Condominium Common
Area Module. Such charge shall be levied among all of the Owners
and their Condominiums in the Project in the same proportions as
the relative interior square foot floor areas of the residential
elements of the Units (as such areas are depicted in the
Condominium Plan), expressed as percentages, and computed by
dividing the interior square foot floor area of the element
element of each Unit by the total interior square foot floor areas
of the residential elements of all Units in the Project.
1.6. Assessment, Special.
Special Assessment shall mean a charge against a particular Owner,
directly attributable to, or reimbursable by, that Owner, equal to
the cost incurred by the Association for corrective action
performed pursuant to the provisions of this Declaration, or a
reasonable fine or penalty assessed by the Board, plus interest and
other charges on such Special Assessments as provided for herein.
Special Assessments shall not include any late payment penalties,
interest charges or costs (including attorneys' fees) incurred by
the Association in the collection of Annual, Capital Improvement
and Reconstruction Assessments.
1.7. Association.
Association shall mean CARLSBAD BEACH ESTATES HOMEOWNERS
ASSOCIATION, a California nonprofit corporation (formed pursuant to
the Nonprofit Mutual Benefit Corporation Law of the State of
California), its successors and assigns. The Association is an
"association" as defined in Section 1351(a) of the California Civil
Code.
1.8. Association Maintenance Funds.
Association Maintenance Funds shall mean the accounts created for
receipts and disbursements of the Association, pursuant to Article
V hereof.
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1.9. Association Property Module.
The Association Property Module shall consist of the Condominium
Property excepting Unit 1 to Unit 6, inclusive, and the Condominium
Common Area Module. The lateral boundaries of which are the
vertical planes at the limits of the horizontal dimensions as shown
on the recorded Condominium Plan, the upper limit of which extends
extends from the ground elevation to the heavens, and the lower
limit for which extends from the ground elevation down to the
center of the earth.
1.10. Beneficiary.
Beneficiary shall mean a Mortgagee under a Mortgage or a
Beneficiary under a Deed of Trust, as the case may be, and the
assignees of such Mortgagee or Beneficiary.
1.11. Board or Board of Directors.
Board or Board of Directors shall mean the Board of Directors of
the Association.
1.12. Budget.
Budget shall mean a written, itemized estimate of the income and
Common Expenses of the Association in performing its functions
under this Declaration, which Budget shall be prepared pursuant to
the Bylaws.
1.13. Bylaws.
Bylaws shall mean the Bylaws of the Association as adopted by the
Board, as such Bylaws may be amended from time to time.
1.14. City.
City shall mean the incorporated municipal City of Carlsbad, County
of San Diego, State of California, and its various departments,
divisions, employees and representatives.
1.15. Close of Escrow.
Close of Escrow shall mean the date on which a deed is Recorded
conveying either a Condominium or a Lot pursuant to a transaction
requiring the issuance of a Final Subdivision Public Report by the
ORE.
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1.16. Common Expenses.
Common Expenses shall mean those expenses for which the Association
is responsible under this Declaration, including the actual and
estimated costs of: maintenance, management, operation, repair and
replacement of the Association Property Module and the
Condominium Common Area Module; unpaid Special Assessments,
Reconstruction Assessments and Capital Improvement Assessments;
the costs of any and all utilities metered to more than one Unit
and other commonly metered charges for the Property; the costs of
trash collection and removal (as applicable); costs of management
and administration of the Association including, but not limited to
compensation paid by the Association to managers, accountants,
attorneys and other employees; the costs of all gardening
security, and other services benefiting the Association Property
Module and the Condominium Common Area Module; the costs of fire,
casualty and liability insurance, workers' compensation insurance
errors and omissions and director, agent and other insurance
covering the Property and the directors, officers and agents of the
Association; the costs of bonding of the members of the Board;
taxes paid by the Association, including any blanket tax assessed
against the Property; amounts paid by the Association for discharge
of any lien or encumbrance levied against the Property, or portions
thereof; and the costs of any other item or items incurred by the
Association, for any reason whatsoever in connection with the
Property, for the common benefit of the Owners.
1.17. Condominium.
Condominium shall mean an estate in real property as defined in
California Civil Code Section 1351(f), and shall consist of an
undivided fee simple ownership interest in the Condominium Common
Area Module, together with a separate ownership interest in fee in
a Unit and all easements appurtenant thereto. Subject to the
provisions of Section 11.5 hereof, the fractional undivided fee
simple interest appurtenant to each Unit shall be an undivided one-
sixth (l/6th) interest in the Condominium Common Area Module
to be held by the owners as tenants in common.
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1.18. Condominium Common Area Module.
Condominium Common Area Module shall consist of the Condominium
Property excepting Unit 1 to Unit 6, inclusive, and the
Association Property Module. The lateral boundaries of which
the vertical planes at the limits of the horizontal dimensions as
shown on the recorded Condominium Plan, the upper limit of which
extends from the ground elevation to the heavens, and the
lower limit for which extends from the ground elevation down to the
center of the earth.
1.19. Condominium Plan.
Condominium Plan shall mean the Recorded plan, as amended from time
to time, consisting of (1) a description or survey map of the
Project, which shall refer to or show monumentation on the ground,
(2) a three-dimensional description of the Project, one or more
dimensions of which may extend for an indefinite distance upwards
or downwards in sufficient detail to identify the Condominium
Common Area Module, each Separate Interest and the Association
Property Module; and (3) a certificate consenting to the
recordation the signed and acknowledged by the record owner of fee
title to the Project and by either the trustee or the Beneficiary
of each Recorded Deed of Trust, and the Mortgagee of each recorded
Mortgage encumbering the Project.
1.20. Condominium Property.
Condominium Property shall mean and refer to certain real property
located in the City of Carlsbad, County of San Diego, State of
California, described as follows:
LOT 5 OF CARLSBAD BEACH ESTATES, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 14047, FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, SEPTEMBER 29, 2000.
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1.21. Declarant.
Declarant shall mean CARLSBAD BEACH GROUP INVESTORS, L.L.C., A
CALIFORNIA LIMITED LIABILITY COMPANY, its successors, and any
Person to which it shall have assigned any of its rights hereunder
by an express written assignment. Declarant shall also mean
H. David Buckmaster, Owner and Patricia A. Buckmaster, Owner,
their, its successors, and any Person to which each shall have
have assigned any of their rights hereunder by an express written
assignment.
1.22. Declaration.
Declaration shall mean this instrument, as it may be amended from
time to time.
1.23. Deed of Trust.
Deed of Trust shall mean a Mortgage as further defined herein.
1.24 .
DRE shall mean the California Department of Real Estate and any
successors thereto.
1.25. Family.
Family shall mean one or more natural persons related to each other
by blood, marriage or adoption, or one or more natural persons not
all so related, but who maintain a common household in a Residence.
1.26.
FHA shall mean the Federal Housing Administration of the United
States Department of Housing and Urban Development and any
department or agency of the United States government which succeeds
to the FHA's function of insuring notes secured by Mortgages on
residential real estate.
1.27. FHLMC.
FHLMC shall mean the Federal Home Loan Mortgage Corporation (also
known as The Mortgage Corporation) created by Title II of The
Emergency Home Finance Act of 1970, and any successors to such
corporation.
1.28. Fiscal Year.
Fiscal Year shall mean the fiscal accounting and reporting period
of the Association selected by the Board from time to time.
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FNMA shall mean the Federal National Mortgage Association, a
government-sponsored private corporation established pursuant to
Title VIII of the Housing and Urban Development Act of 1968, and
any successors to such corporation.
1.30. GNMA.
GNMA shall mean the Government National Mortgage Association
administered by the United States Department of Housing and Urban
Development, and any successor to such association.
1.31. Improvements.
Improvements shall mean all structures and appurtenances thereto of
every type and kind, including but not limited to, buildings,
walkways, sprinkler pipes, recreational facilities, roads,
driveways, parking areas, fences, screening walls, block walls
retaining walls, landscaping, the exterior surfaces of any visible
structure and the paint on such surfaces, planted trees and shrubs.
1.32. Manager.
Manager shall mean the Person employed by the Association pursuant
to and limited by the provisions of this Declaration, and delegated
the duties, power or functions of the Association as limited by
this Declaration, the Bylaws and the terms of the agreement between
the Association and said Person.
1.33. Member, Membership.
Member shall mean any Person holding a membership in the
Association, as provided in this Declaration. Membership shall
mean the property, voting and other rights and privileges of
Members as provided herein, together with the correlative duties
and obligations contained in the Restrictions.
1.34. Mortgage.
Mortgage shall mean any Recorded mortgage or deed of trust or other
conveyance of one or more Condominiums and/or Lots or other portion
of the Property to secure the performance of an obligation, which
conveyance will be reconveyed upon the completion of such
performance.
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1.35. Mortgagee, Mortgagor.
Mortgagee shall mean a Person to whom a Mortgage is made and shall
include the Beneficiary of a Deed of Trust. "Mortgagor" shall mean
a Person who mortgages his or its property to another (i.e., the
maker of a Mortgage), and shall include the Trustor of a Deed of
Trust. The term "Trustor" shall be synonymous with the term
"Mortgagor" and the term "Beneficiary" shall be synonymous with the
term "Mortgagee."
1.36. Notice and Hearing.
Notice and Hearing shall mean written notice and a hearing before
the Board, at which the Owner concerned shall have an opportunity
to be heard in person, or by counsel at the Owner's expense, in the
manner further provided in the Bylaws.
1.37. Owner.
Owner shall mean the Person or Persons, including holding fee
simple interest to a Condominium or a Lot. The term "Owner" shall
include a seller under an executory contract of sale but shall
exclude Mortgagees.
1.38. Person.
Person shall mean a natural individual or any other entity with the
legal right to hold title to real property.
1.39. Property or Project.
Property or Project shall mean all of the real property described
in Paragraph A of The Preamble to this Declaration. The Property
is a "common interest development", a "condominium project", and
a "planned development" as defined in Section 1351(c), Section 1351
(f), and Section 1351 (k) of The California Civil Code.
1.40. Record, File, Recordation.
Record, File, or Recordation shall mean, with respect to any
document, the recordation or filing of such document in the Office
of the San Diego County Recorder.
1.41. Residence.
Residence shall mean a Unit, intended for use by a single Family.
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1.42. Restrictions.
Restrictions shall mean this Declaration, the Articles, Bylaws and
the Rules and Regulations of the Association from time to time in
effect.
1.43. Rules and Regulations.
Rules and Regulations shall mean the rules and regulations adopted
by the Board pursuant to this Declaration or the Bylaws, as such
rules and regulations may be amended from time to time.
1.44. Separate Interest or Unit.
Separate Interest or Unit shall mean a separate interest in space
as defined in Section 1351 (f) of the California Civil Code. Each
Separate Interest or Unit shall be a separate freehold estate, as
separately shown, numbered and designated in the Condominium Plan.
In interpreting deeds, declarations and plans, the existing
physical boundaries of the Unit or a Unit constructed or
reconstructed in substantial accordance with the Condominium Plan
and the original plans thereof, if such plans are available, shall
be conclusively presumed to be its boundaries, rather than the
description expressed in the deed, Condominium Plan or Declaration,
regardless of settling or lateral movement of the building and
regardless of minor variances between boundaries, as shown on the
Condominium Plan or defined in the deed and Declaration, and the
boundaries of a building as constructed or reconstructed.
1.45. Separate Interest or Lot.
Separate Interest or Lot shall mean a separate interest in space as
defined in Section 1351(1) (3) of The California Civil Code. Each
Separate Interest or Lot shall be a separate freehold estate, as
separately shown, numbered and designated on the Map referred to
in Preamble, paragraph A.
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ARTICLE II
2. CARLSBAD BEACH ESTATES HOMEOWNERS ASSOCIATION.
2.1. Organization of Association.
The Association is or shall be incorporated under the name of
CARLSBAD BEACH ESTATES HOMEOWNERS ASSOCIATION, as a corporation not
for profit under the Nonprofit Mutual Benefit Corporation Law of
the State of California, as required by Section 1363 of the
California Civil Code.
2.2. Duties and Powers.
The duties and powers of the Association are those set forth in the
Declaration, the Articles and Bylaws, together with its general and
implied powers of a nonprofit mutual benefit corporation, generally
to do any and all things that a corporation organized under the
laws of the State of California may lawfully do which are necessary
or proper, in operating for the peace, health, comfort, safety and
general welfare of its Members, subject only to the limitations
upon the exercise of such powers as are expressly set forth in the
Articles, the Bylaws and in this Declaration. The Association shall
further have the right to install or construct capital Improvements
on either the Association Property Module or the Condominium
Common Area Module. The Association may at any time, and from time
to time reconstruct, replace or refinish any Improvement or portion
thereof on the Association Property Module or the Condominium
Common Area Module in accordance with the original finish or
standard of construction of such Improvement; replace destroyed
trees or other vegetation and plant trees, shrubs and ground cover
upon any portion of the Association Property Module or the
Condominium Common Area Module. The Association may employ
personnel necessary for the effective operation and maintenance of
the Project, including the employment of legal, management and
accounting services. The Association shall additionally have the
power but not the duty to enter into contracts with Owners or other
persons to provide services or to maintain and repair Improvements
within the Project and elsewhere which the Association is not
otherwise required to provide or maintain pursuant to this
Declaration; provided, however, that any such contract shall
provide for the payment to the Association for the costs of
providing such services or maintenance. Concurrently with the
commencement of Annual Assessments, as provided in Section 5.5 of
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this Declaration, the obligations thereunder are hereby deemed to
have been assigned to and accepted by the Association as of the
commencement of Annual Assessments.
2.3. Membership.
Every Owner, upon becoming the Owner of a Condominium or a Lot,
shall automatically become a Member of the Association, and shall
remain a Member thereof until such time as his ownership ceases, at
which time his Membership in the Association shall automatically
cease. Ownership of a Condominium or of a Lot shall be the sole
qualification for Membership in the Association. Membership in the
Association shall not be assignable except to the Person to which
title to the Unit has been transferred, and every Membership in the
Association shall be appurtenant to and may not be separated from
The fee ownership of such Unit. The rights, duties, privileges
and obligations of all Members of the Association shall be as
provided in the Restrictions.
2.4. Transfer.
The Membership held by any Owner shall not be transferred, pledged
or alienated in any way, except upon the sale or encumbrance of
such Owner's Condominium, and then only to the purchaser or
Mortgagee of such Condominium or Lot. A prohibited transfer is
void and will not be reflected upon the books and records of the
Association. A Class A Member who has sold the Condominium or Lot
to a contract purchaser under an agreement to purchase shall be
entitled to delegate to the contract purchaser the Membership
rights in the Association. The delegation shall be in writing and
shall be delivered to the Board before the contract purchaser may
vote. However, the contract seller shall remain liable for all
charges and assessments attributable to the Condominium or Lot
until fee title to the Condominium or Lot sold is transferred.
If the Owner of any Condominium or Lot fails or refuses to transfer
the Membership to the purchaser of the Condominium or Lot upon
transfer of fee title thereto, the Board of Directors shall have
the right to record the transfer upon the books of the Association.
Until satisfactory evidence of such transfer has been presented to
the Board, the purchaser shall not be entitled to vote at meetings
of the Association. The Association may levy a reasonable transfer
fee against a new Owner and the Condominium or Lot (which fee shall
be added to the Annual Assessment chargeable to such new Owner) to
reimburse the Association for the administrative cost of
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transferring the membership to the new Owner on the records of the
Association provided such fee does not exceed the Association's
actual cost involved in changing its records of ownership.
2.5. Classes of Membership.
The Association shall have two (2) classes of voting Membership.
(a) Class A. Class A Members shall originally be all
Owners except Declarant for so long as there exists a Class
Membership. Class A Members shall be entitled to one (I) vote for
each Condominium or Lot owned by such Class A Members and subject
to assessment. Declarant shall become a Class A Member with regard
to Condominiums or Lots owned by Declarant upon conversion of
Declarant's Class B Membership as provided below. When more than
one (1) Person owns any Condominium or Lot, all such Persons shall
be Members. The vote for such Condominium or Lot shall be
exercised in accordance with Section 2.6, but in no event shall
more than one (1) Class A vote be cast for any Condominium or Lot.
(b) Class B. The Class B Member shall be Declarant. The
Class B Member shall be entitled to three (3) votes for each
Condominium or Lot owned by Declarant and subject to assessment.
The Class B Membership shall cease and be converted to Class A
Membership immediately upon the first to occur of the following
events :
(1) When the total votes outstanding in the Class A
Membership equals the total votes outstanding in the Class B
Membership; or
(2) The second anniversary of the first Close of Escrow
in the Property;
2.6. Voting Rights.
(a) All voting rights shall be subject to the
Restrictions. Except as provided in Section 14.2 of this
Declaration and Section 4 . 8 of the Bylaws, as long as there exists
a Class B Membership, any provision of this Declaration, the
Articles or Bylaws which expressly requires the vote or written
consent of a specified percentage (i.e., other than actions
requiring merely the vote or written consent of a majority of a
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quorum) of the voting power of the Association before action may be
undertaken shall require the approval of such specified percentage
of the voting power of each class of membership. Except as
provided in Section 14.2 of this Declaration and Section 4.8 of the
Bylaws, upon termination of the Class B Membership, any provision
of this Declaration, the Articles or Bylaws which expressly
requires the vote or written consent of Owners representing a
specified percentage (i.e., other than actions requiring merely the
vote or written consent of a majority of a quorum) of the voting
power of the Association before action may be undertaken shall then
require the vote or written consent of Owners representing such
specified percentage of both the total voting power of the
Association and the voting power of the Association residing in
Owners other than Declarant.
(b) Class A Members shall be entitled to one (1) vote for
each Condominium or Lot in which they hold the interest required
for Membership. When more than one (1) Person holds such interest
or interests in any Condominium or Lot ("co-owners"), all of such
co-owners shall be Members and may attend any meeting of the
Association, but only one (1) such co-owner shall be entitled to
exercise the single vote to which the Condominium or Lot is
entitled. Co-owners owning the majority interests in a Condominium
or Lot shall from time to time designate in writing one of their
number to vote. Fractional votes shall not be allowed, and the
vote for each Condominium or Lot shall be exercised, if at all, as
a unit. Where no voting co-owner is designated or if the
designation has been revoked, the vote for the Condominium or Lot
shall be exercised as the co-owners owning the majority interests
in the Condominium or Lot mutually agree. Unless The Board
receives a written objection in advance from a co-owner, it shall
conclusively presumed that the corresponding voting co-owner is
acting with the consent of his co-owners. No vote shall be cast
for any Condominium or Lot if the co-owners present in person or by
proxy owning the majority interests in such Condominium or Lot
cannot agree to said vote or other action. The nonvoting co-owner
or co-owners shall be jointly and severally responsible for all of
the obligations imposed upon the jointly-owned Condominium or Lot
and shall be entitled to all other benefits of ownership. All
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agreements and determinations lawfully made by the Association in
accordance with the voting percentages established herein, or in
the Bylaws of the Association, shall be deemed to be binding on all
Owners, their successors and assigns.
2.7. Repair and Maintenance by the Association.
(a) Maintenance Standards. Subject to Article X
pertaining to destruction of Improvements and Article XI pertaining
to eminent domain, the Association shall paint, maintain,
and replace the Condominium Common Area Module and the Association
Property Module and Improvements thereon or shall contract for such
maintenance, repair and replacement to assure maintenance of the
Condominium Common Area Module and the Association Property Module
and Improvements thereon in a clean, sanitary and attractive
condition reasonably consistent with the level of maintenance
reflected in the most current Budget on file with and approved by
the DRE. The Board shall determine the level and frequency of
maintenance of the Condominium Common Area Module and the
Association Property Module.
(c) Charges to Owners. All such costs of maintenance,
repairs and replacements for the Property shall be paid for"as
Common Expenses out of the Maintenance Funds as provided in this
Declaration. It shall further be the affirmative duty of the Board
of Directors to require strict compliance with all provisions of
this Declaration and to cause the Property to be inspected by the
Architectural Committee for any violation thereof. The cost of any
maintenance, repairs or replacement by the Association which is not
the responsibility of the Association or which arises out of, or is
caused by, the act of an Owner or such Owner's Family, tenants,
guests, invitees, or agents shall, after Notice and Hearing, be
levied by the Board as a Special Assessment against such Owner.
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2.8. Unsegregated Real Property Taxes.
To the extent not assessed to or paid by the Owners, the
Association shall pay all real and personal property taxes and
assessments levied upon any portion of the Property. In addition,
if all of the Units in the Project are taxed under a blanket tax
bill covering all of the Project each Owner shall pay the
proportionate share of any installment due under the blanket tax
bill to the Association at least ten (10) days prior to the
delinquency date. The Association shall transmit the taxes to the
appropriate tax collection agency on or before the delinquency
date. Blanket taxes for the Project shall be allocated equally
among the Owners and their Condominiums, based upon the total
number of Units in the Project. The Association shall, at least
forty-five (45) days prior to the delinquency date of any blanket
tax installment, deliver to each Owner a copy of the tax bill
along with a written notice setting forth the Owner's obligation to
pay the proportionate share of the tax installment and the
potential additional charges to the Owner for failure to comply.
The Association shall pay the taxes on behalf of any Owner who does
not pay his proportionate share. The Association shall add to the
Annual Assessment of a delinquent Owner the amount of any sum
advanced, plus interest at the rate of ten percent (10%) per annum
and any amount necessary to reimburse the Association for any
penalty or late charge actually assessed in connection with the
blanket tax bill, which late charge results from the failure of the
delinquent Owner to make timely payment of his proportionate share
of the taxes. Until the Close of Escrow for the sale of ninety
percent (90%) of the Condominiums in the Project, the foregoing
provisions relating to the collection of taxes in connection with
a blanket tax bill on all or any portion of the Project may not be
amended without the express written consent of Declarant.
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2.9. Repair and Maintenance by Owners.
Each Owner shall maintain, repair, replace, paint, paper, plaster,
tile, finish and restore or cause to be so maintained, repaired
replaced and restored, at his sole expense, all portions of the
Condominium or the Lot. In the event a portion of a Condominium
requires maintenance by more than one (1) Owner, each Owner of the
Condominium requiring maintenance shall be equally responsible for
the cost of the maintenance.
ARTICLE III
3. Rights in Condominium Common Area Module and
Association Property Module.
3.1. Association Easement.
The Association shall have an easement over the Condominium
Common Area Module and the Association Property Module for
performing its duties and exercising its powers described in this
Declaration. The Association's obligations to maintain the
Condominium Common Area Module and the Association Property Module
shall commence on the date Annual Assessments commence on
Condominiums and Lots in The Project. Until commencement of Annual
Assessments on Condominiums and Lots in the Project, the
Condominium Common Area Module and the Association Property Module
shall be maintained by Declarant.
3.2. Partition.
Except as provided in this Declaration, there shall be no judicial
partition of the Common Area, or any part thereof, for the term of
the Project, nor shall Declarant/ any Owner or any other Person
acquiring any interest in any Condominium or Lot in the Project
seek any such judicial partition.
3.3. Members' Easements in Common Area Module/
Association Property Module
Subject to the provisions of this Declaration, every Member of the
Association shall have, for himself, his Family, his tenants and
guests, a nonexclusive easement of access, ingress, egress, use and
employment of, in, to and over the Condominium Common Area Module
and the Association Property Module and such easement shall be
appurtenant to and shall pass with title to every Condominium
and Lot in The Project.
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3.4. Extent of Members' Easements.
The rights and easements of use and enjoyment of the Condominium
Common Area Module and the Association Property Module created by
this Declaration shall be subject to the Restrictions, which
include, without limitation, The following:
(a) The right of the Board to suspend the rights and
easements of any Member, and the Persons deriving such rights and
easements from any Member, for use and enjoyment of any recreation
facilities located on the Association Property Module for any
period during which the payment of any Annual, Special, Capital
Improvement or Reconstruction Assessment against the Member and
the Condominium or Lot remains delinquent, and, after Notice and
Hearing as provided in the Bylaws, to suspend such rights and
easements for the period set forth in the Bylaws for any violation
of the Restrictions, it being understood that any suspension for
either nonpayment of any Assessment or breach of the Restrictions
shall not constitute a waiver or discharge of the Member's
obligation to pay assessments as provided in this Declaration;
(b) The right of the Association to consent to or
otherwise cause the construction of additional Improvements on the
Association Property Module and to consent to or otherwise cause
the alteration or removal of any existing Improvements on the
Association Property Module for the benefit of the Members of the
Association;
(c) The right of the Association to consent to or
otherwise cause the construction of additional Improvements on the
Condominium Common Area Module and to consent to or otherwise cause
the alteration or removal of any existing Improvements on the
Condominium Common Area Module for the benefit of the Unit
Owner Members The Association;
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(d) The right of The Association, acting through the
Board, to grant, consent to or join in the grant or conveyance of
easements, licenses or rights-of-way in, on or over the
Condominium Common Area Module and/or the Association Property
Module for purposes not inconsistent with the intended use of the
Property as a residential condominium project and planned
development;
(e) The rights and reservations of Declarant as set forth
in this Declaration;
(f) The right of the Association to reasonably limit the
number of guests and tenants of the Owners using the Association
Property Module; and
(g) The right of The Association, acting through the
Board, to establish uniform Rules and Regulations for the use of
the Condominium Common Area Module and the Association Property
Module.
3.5. Delegation of Use.
Any Owner entitled to the right and easement of use and enjoyment
of the Association Property Module may delegate his right and
easement to his tenants, contract purchasers or subtenants who
reside in the Condominium or Lot, subject to reasonable regulation
by the Board. An Owner who has so delegated the right and easement
shall not be entitled to use or enjoyment of the recreational
facilities or equipment of the Property for so long as such
delegation remains in effect.
3.6. Waiver of Use.
No Owner may exempt himself from personal liability for assessments
duly levied by the Association, or effect the release of the
Condominium or the Lot from the liens and charges thereof, by
waiving the use and enjoyment of the Association Property Module
or by abandoning the Condominium or Lot.
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3.7. Damage by Condominium Owner Member.
To the extent permitted by California law, each Condominium
Owner Member shall liable to the Association for any damage to
either the Condominium Common Area Module or the Association
Property Module not fully reimbursed to the Association by
insurance (including without limitation any deductible amounts
under any insurance policies against which the Association files a
claim for such damage) if the damage is sustained because of the
negligence, willful misconduct or unauthorized or improper
installation or maintenance of any Improvement by the Condominium
Owner Member, his guests, tenants or invitees, or any other Person
deriving their right and easement of use and enjoyment of the
Condominium Common Area Module or the Association Property Module
from the Member, or his or their respective family and guests, both
minor and adult. However, the Association, acting through the
Board, reserves the right to determine whether any claim shall be
made upon the insurance maintained by the Association, and the
Association further reserves the right, after Notice and Hearing as
provided in the Bylaws, to levy a Special Assessment equal to the
increase, if any, in insurance premiums directly attributable to
the damage caused by the Condominium Owner Member or the Person for
whom the Condominium Owner Member may be liable as described
above. In the case of joint ownership of. a Condominium, the
liability of the Owners shall be joint and several, except to the
extent that the Association shall have previously contracted in
writing with the joint owners to the contrary. After Notice and
Hearing as provided in the Bylaws, the cost of correcting the
damage to the extent not reimbursed to the Association by insurance
shall be a Special Assessment against such Member's Condominium
and may be enforced as provided herein.
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3.8. Damage by Lot Owner Member.
To the extent permitted by California law, each Lot Owner
Member shall liable to the Association for any damage to the
Association Property Module not fully reimbursed to the Association
by insurance (including without limitation any deductible amounts
under any insurance policies against which the Association files a
claim for such damage) if the damage is sustained because of the
negligence, willful misconduct or unauthorized or improper
installation or maintenance of any Improvement by the Lot Owner
Member, his guests, tenants or invitees, or any other Person
deriving their right and easement of use and enjoyment of the
Association Property Module from the Member, or his or their
respective family and guests, both minor and adult. However, the
Association, acting through the Board, reserves the right to
determine whether any claim shall be made upon the insurance
maintained by the Association, and the Association further reserves
the right, after Notice and Hearing as provided in the Bylaws, to
levy a Special Assessment equal to the increase, if any, in
insurance premiums directly attributable to the damage caused by
the Lot Owner Member or the Person for whom the Lot Owner Member
may be liable as described above. In the case of joint ownership
of a Lot, the liability of the Owners shall be joint and several,
except to the extent that the Association shall have previously
contracted in writing with the joint owners to the contrary. After
Notice and Hearing as provided in the Bylaws, the cost of
correcting the damage to the extent not reimbursed to the
Association by insurance shall be a Special Assessment against such
Member's Lot and may be enforced as provided herein.
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ARTICLE IV
4. Architectural Review Committee.
4.1. Members of Committee.
The Architectural Review Committee, sometimes referred to herein as
the "Architectural Committee" or the "Committee," shall be
comprised of three (3) members. The initial members of the
Committee shall be representatives of Declarant until one (1) year
after the original issuance of the first (or only) Final
Subdivision Public Report ("Public Report") for the Property
("First Anniversary"). After the First Anniversary, the Board may
appoint and remove one (1) member of the Committee, and Declarant
shall have the right and power at all times to appoint or remove a
majority of the members of the Committee or to fill any vacancy of
such majority, until the earlier to occur of (i) Close of Escrow
for the sale of ninety percent (90%) of the Condominiums and Lots
subject to this Declaration, or (ii) expiration of five (5) years
following the date of original issuance of the first (or only)
Final Subdivision Public Report for the Property, after which the
Board shall have the power to appoint and remove all of the members
of the Committee. Committee members appointed by the Board shall
be from the membership of the Association, but Committee members
appointed by Declarant need not be Members of the Association. The
Committee shall have the right and duty to promulgate reasonable
standards against which to examine any request made pursuant to
this Article, in order to ensure that the proposed plans conform
harmoniously to the exterior design and existing materials of the
buildings in the Property. Board members may also serve as
Committee members.
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4.2. Review of Plans and Specifications.
The Committee shall consider and act upon any and all plans and
specifications submitted for its approval under this Declaration
and perform such other duties as from time to time shall be
assigned to it by the Board, including the inspection of
construction in progress to assure its conformance with plans
approved by the Committee. No construction, alteration, removal
relocation, demolition, repainting, addition, installation
modification, decoration, redecoration or reconstruction of an
Improvement, including landscaping, in the Property shall be
commenced or maintained, until the plans and specifications
therefor showing the nature, kind, shape, height, width, color
materials and location of the same shall have been submitted to the
Committee and approved in writing by the Committee; provided,
however, that any Improvement may be repainted without Committee
approval so long as the Improvement is repainted the identical
color which it was last painted. Without limiting the generality
of the foregoing, the provisions of this Article IV apply to the
construction, installation, alteration and modification of solar
energy systems, as defined in Section 801.5 of the California Civil
Code, subject to the provisions of California Civil Code Section
714, the City Building Code, applicable zoning regulations, and
associated City ordinances. The Owner submitting the plans and
specifications ("Applicant") shall obtain a written, dated receipt
therefor from an authorized agent of the Committee. Until changed
by the Board, the address for the submission of plans and
specifications shall be the principal office of the Association.
The Committee shall approve plans and specifications submitted for
its approval only if it deems that the installation, construction,
alterations or additions contemplated thereby in the locations
indicated will not be detrimental to the appearance of the
surrounding area of the Property as a whole, that the appearance of
any structure affected thereby will be in harmony with the
surrounding structures, that the construction thereof will not
detract from the beauty, wholesomeness and attractiveness of the
Project or the enjoyment thereof by the Members, and that the
upkeep and maintenance thereof will not become a burden on the
Association. Declarant, and any Person to which Declarant may
assign all or a portion of its exemption hereunder, need not seek
or obtain Architectural Committee approval of any Improvements
constructed on the Project by Declarant or such Person, as the case
may be.
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The Committee may condition its approval of proposals or plans
and specifications for any Improvement (1) upon the Applicant's
furnishing the Association with security acceptable to the
Association against any mechanic's lien or other encumbrance which
may be Recorded against the Property as a result of such work, (2)
on such changes therein as it deems appropriate, (3) upon the
Applicant's agreement to grant appropriate easements to the
Association for the maintenance of the Improvements, (4) upon the
Applicant's agreement to install (at its sole cost) water, gas,
electrical or other utility meters to measure any increased
consumption, (5) upon the Applicant's agreement to reimburse the
Association for the cost of maintenance, (6) upon the Applicant's
agreement to complete the proposed work within a stated period of
time, or (7) all of the above, and may require submission of
additional plans and specifications or other information prior to
approving or disapproving material submitted. The Committee may
also issue rules or guidelines setting forth procedures for the
submission of plans for approval, requiring a fee to accompany each
application for approval, or stating additional factors which it
will take into consideration in reviewing submissions. The
Committee may provide that the amount of the fee shall be uniform,
or that it be determined in any other reasonable manner, such as by
the reasonable cost of the construction, alterations or additions
contemplated. The Committee may require such detail in plans and
specifications submitted for its review as it deems proper
including without limitation, floor plans, site plans, drainage
plans, elevation drawings and description or samples of exterior
material and colors. Until receipt by the Committee of any
required plans and specifications, the Committee may postpone
review of any plans submitted for approval. Decisions of the
Committee and the reasons therefor shall be transmitted by the
Committee to the Applicant at the address set forth in the
application for approval within forty-five (45) days after receipt
by the Committee of all materials required by the Committee. Any
application submitted pursuant to this Section 4.2 shall be deemed
approved unless written disapproval or a request for additional
information or materials by the Committee shall have been
transmitted to the Applicant within forty-five (45) days after the
date of receipt by the Committee of all required materials. The
Applicant shall meet any review or permit requirements of the City
prior to making any alterations or Improvements permitted
hereunder.
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4.3. Meetings of the Committee.
The Committee shall meet from time to time as necessary to perform
its duties hereunder. The Committee may from time to time, by
resolution unanimously adopted in writing, designate a Committee
Representative (who may, but need not, be one of its members) to
take any action or perform any duties for and on behalf of the
Committee, except the granting of variances pursuant to Section
4.8. In the absence of such designation, the vote or written
consent of a majority of the Committee shall constitute an act of
the Committee.
4.4. No Waiver of Future Approvals.
The approval of the Committee of any proposals or plans and
specifications or drawings for any work done or proposed or in
connection with any other matter requiring the approval and consent
of the Committee, shall not be deemed to constitute a waiver of any
right to withhold approval or consent to any similar proposals,
plans and specifications, drawings or matters subsequently or
additionally submitted for approval or consent.
4.5. Compensation of Members.
The members of the Committee shall receive no compensation for
services rendered, other than reimbursement for expenses incurred
by them in the performance of their duties hereunder.
4.6. Inspection of Work.
The Committee or its duly authorized representative may at any time
inspect any work for which approval of plans is required under this
Article IV ("Work"), which right to inspect shall include the right
to require any Owner to take such action as may be necessary to
remedy any noncompliance with the Committee-approved plans for the
Work or with the requirements of this Declaration
("Noncompliance").
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(a) Time Limit. The Committee's right to inspect the Work
and notify the responsible Owner of any Noncompliance shall
terminate sixty (60) days after the latest to occur of the
following events: (i) submittal of the plans for the Work to the
Committee for its approval as provided in this Article IV; (ii)
completion of the Work as provided in the Committee-approved plans;
and (iii) written notice from the Owner to the Committee that the
Work has been completed. This time limit for inspection and
notification by the Committee shall be extended indefinitely if any
of these conditions has not occurred. If the Committee fails to
send a notice of Noncompliance to an Owner before this time limit
expires, the Work shall be deemed to comply with the approved
plans.
(b) Remedy. If an Owner fails to remedy any Noncompliance
within sixty (60) days from the date of notification from the
Committee, the Committee shall notify the Board in writing of such
failure. Upon Notice and Hearing, as provided in the Bylaws, the
Board shall determine whether there is a Noncompliance and, if so,
the nature the and the estimated cost of correcting or removing the
same. If a Noncompliance exists, the Owner shall remedy or
remove the same within a period of not more than forty-five (45)
days from the date that notice of the Board ruling is given to the
Owner. If the Owner does not comply with the Board ruling within
that period, the Board, at its option, may Record a Notice of
Noncompliance and commence a lawsuit for damages or injunctive
relief, as appropriate, to remedy the Noncompliance.
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4.7. Scope of Review.
The Architectural Committee shall review and approve, conditionally
approve or disapprove all plans submitted to it for any proposed
Improvement, alteration or addition, solely on the basis of
aesthetic considerations, consistency with this Declaration, and
the overall benefit or detriment which would result to the
immediate vicinity and the Property generally. The Committee
shall take into consideration the aesthetic aspects of the
architectural designs, placement of buildings, landscaping, color
schemes, exterior finishes and materials and similar features. The
Committee's approval or disapproval shall be based solely on the
considerations set forth in this Article IV, and the Committee
shall not be responsible for reviewing, nor shall its approval of
any plan or design be deemed approval of, any plan or design from
the standpoint of structural safety or conformance with building or
other codes.
4.8. Variances.
The Committee may authorize variances from compliance with any of
the architectural provisions of this Declaration, including without
limitation, restrictions upon height, size, floor area or placement
of structures, or similar restrictions, when circumstances such as
topography, natural obstructions, hardship, aesthetic or
environmental consideration may require. Such variances must be
evidenced in writing, must be signed by a majority of the
Committee, and shall become effective upon Recordation. After
Declarant has lost the right to appoint a majority of the members
of the Committee, the Board must approve any variance recommended
by the Committee before any such variance shall become effective.
If such variances are granted, no violation of the covenants,
conditions and restrictions contained in this Declaration shall be
deemed to have occurred with respect to the matter for which the
variance was granted. The granting of such a variance shall not
operate to waive any of the terms and provisions of this
Declaration for any purpose except as to the particular property
and particular provision hereof covered by the variance, nor shall
it affect in any way the Owner's obligation to comply with all
governmental laws and regulations affecting the use of the
Residence.
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4.9. Appeals.
For so long as Declarant has the right to appoint and remove a
majority of the members of the Committee, decisions of the
Committee shall be final, and there shall be no appeal to the Board
of Directors. When Declarant is no longer entitled to appoint and
remove a majority of the members of the Committee the Board may, at
its discretion, adopt policies and procedures for the appeal of
Committee decisions for reconsideration by the Board. The Board
shall have no obligation to adopt or implement any such appeal
procedures, and in the absence of Board adoption of appeal
procedures, all decisions of the Committee shall be final.
ARTICLE V
5. Maintenance Funds and Assessments.
5.1. Personal Obligation of Assessments.
Declarant, for each Condominium owned by it, hereby covenants and
agrees to pay, and each Owner, by acceptance of a deed to a
Condominium or a Lot, whether or not it shall be so expressed in
such deed, is deemed to covenant and agree to pay to the
Association (1) Annual Assessments for Common Expenses, (2) Special
Assessments, (3) Reconstruction Assessments and (4) Capital
Improvement Assessments; such assessments to be established and
collected as provided herein. The Association shall not levy or
collect any Annual Assessment, Capital Improvement Assessment
Special Assessment or Reconstruction Assessment that exceeds the
amount necessary for the purpose for which it is levied. Except as
provided in this Section 5.1, all such assessments (other than
Special Assessments), together with interest, costs, and reasonable
attorneys' fees for the collection the, shall be a charge on
the Condominium or Lot against which such assessment is made.
Each such assessment (including Special Assessments), together with
interest, costs and reasonable attorneys' fees, shall also be the
personal obligation of the Person who was the Owner of the
Condominium or Lot at the time when the assessment fell due. This
personal obligation cannot be avoided by abandonment of
Condominium or Lot or by an offer to waive use of the Condominium
Common Area Module or the Association Property Module. The
personal obligation for delinquent assessments shall not pass to
any new Owner ("Purchaser") unless expressly assumed by the
Purchaser.
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5.2. Maintenance Funds of Association.
The Board of Directors shall establish no fewer than two (2)
separate Association Maintenance Fund accounts into which shall be
deposited all monies paid to the Association, and from which
disbursements shall be made, as provided herein, in the performance
of functions by the Association under this Declaration. The
Association Maintenance Funds may be established as trust accounts
at a banking or savings institution and shall include: (1) an
Operating Fund for current Common Expenses of the Association, (2)
an adequate Reserve Fund for capital improvements, replacement,
painting and repairs of the Condominium Common Area Module or the
Association Property Module (which cannot normally be expected to
occur on an annual or more frequent basis), and for payment of
deductible amounts for policies of insurance which the Association
obtains as provided in Section 9.1 hereof, and (3) any other funds
which the Board of Directors may establish to the extent necessary
under the provisions of this Declaration. Nothing contained herein
shall limit, preclude or impair the establishment of additional
Maintenance Funds by the Association, so long as the amounts
assessed to, deposited into, and disbursed from any such Fund are
earmarked for specified purposes authorized by this Declaration.
5.3. Purpose of Assessments.
The assessments levied by the Association shall be used exclusively
to promote the recreation, health, safety and welfare of the Owners
and for the operation, replacement, improvement and maintenance of
the Condominium Common Area Module and the Association Property
Module and to discharge any other obligations of the Association
under this Declaration. All amounts deposited into the Maintenance
Funds must be used solely for the common benefit of all of the
Owners for purposes authorized by this Declaration. Disbursements
from the Operating Fund shall be made by the Board of Directors for
such purposes as are necessary for the discharge of its
responsibilities herein for the common benefit of all of the
Owners, other than those purposes for which disbursements from the
Reserve Fund are to be used. Disbursements from the Reserve Fund
shall be made by the Board of Directors only for the purposes
specified in this Article V and in Section 1365.5(c) of the
California Civil Code, as it may be amended from time to time
Nothing in this Declaration shall be construed in such a way as to
prohibit the use of Association assessments or funds to abate any
annoyance or nuisance emanating from outside the boundaries of the
CC&RS/CBE/
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Property. Annual Assessments shall be used to satisfy Common
Expenses of the Association, as provided herein and in the Bylaws.
5.4. Limitations on Annual Assessment Increases.
The Board shall levy Annual Assessments in accordance with the
following provisions:
(a) Maximum Authorized Annual Assessment for Initial Year
of Operations. Until the first day of the Fiscal Year immediately
following the Fiscal Year in which Annual Assessments commence, the
Board may only levy an Annual Assessment per Condominium and per
Lot in an amount which exceeds the Annual Assessment per
Condominium and per Lot, as disclosed in the Final Subdivision
Public Report issued by the California Department of Real Estate if
the Board first obtains the approval of Members casting a majority
of votes at a meeting or election of the Association in which more
than fifty percent (50%) of the Members are represented ("Increase
Election"). Notwithstanding the foregoing, this Section does not
limit Annual Assessment increases necessary for addressing an
"Emergency Situation" as defined in Section 5.4(d).
(b) Maximum Authorized Annual Assessment for Subsequent
Fiscal Years. Starting with the first Fiscal Year immediately
following the Fiscal Year in which Annual Assessments commence, the
Board may only levy Annual Assessments which exceed the Annual
Assessments for the immediately preceding Fiscal Year as follows:
(1) If the increase in Annual Assessments is less
than or equal to twenty percent (20%) of the Annual Assessments for
the immediately preceding Fiscal Year, then the Board must either
(a) have distributed the Budget for the current Fiscal Year in
accordance with Section 1365(a) of the California Civil Code, or
(b) obtain the approval of Members casting a majority of votes in
an Increase Election;
(2) If the increase in Annual Assessments is greater
than twenty percent (20%) of the Annual Assessments for the
immediately preceding Fiscal Year, then the Board must obtain the
approval of Members casting a majority of votes in an Increase
Election.
CC&RS/CBE/
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Notwithstanding the foregoing, this Section does not
limit Annual Assessment increases necessary for addressing an
"Emergency Situation" as defined in Section 5.4(d).
(c) Supplemental Annual Assessments. If the Board, by
majority vote, determines that the important and essential
functions of the Association may be properly funded by an Annual
Assessment in an amount less than the maximum authorized Annual
Assessment described above, it may levy such lesser Annual
Assessment. If the Board determines that the estimate of the
total charges for the current year is or will become inadequate to
meet all Common Expenses for the Property for any reason, it shall
immediately determine the approximate amount of the inadequacy
Subject to the limitations described in Sections 5.4(a) and (b)
above and (d) below, the Board shall have the authority to levy, at
any time by a majority vote, a supplemental Annual Assessment
reflecting a revision of the total charges to be assessed against
each Condominium or Lot.
(d) Emergency Situations. For purposes of Sections
5.4(a), 5.4(b) and 5.6, an "Emergency Situation" is any one of the
following:
(1) An extraordinary expense required by an order of
a court;
(2) An extraordinary expense necessary to repair or
maintain the Property or any portion thereof for which the
Association is responsible when a threat to personal safety on the
Property is discovered; and
(3) An extraordinary expense necessary to repair or
maintain the Property or any portion thereof for which the
Association is responsible that could not have been reasonably
foreseen by the Board when preparing the Budget. Prior to the
imposition or collection of an assessment pursuant to this
subparagraph (3), 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. The resolution shall
be distributed to the Members with the Notice of Assessment.
CC&RS/CBE/
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(4) An extraordinary expense in making the first
payment of the earthquake insurance surcharge pursuant to Section
5003 of the Insurance Code.
5.5. Annual Assessments/Commencement-Collection.
The Board of Directors shall authorize and levy the amount of the
Annual Assessment upon each Condominium and each Lot, as provided
herein, by majority vote of the Board. Any portion of the Annual
Assesment directly related to the maintenance of the Condominium
Common Area Module shall only be assessed to the Owners of the
Condominium Units as shown and described on the recorded
Condominium Plan. Any portion of the Annual Assesment directly
related to the maintenance of the Association Property Module shall
be assessed to the Owners of the Condominium Units as shown and
described on the recorded Condominium Plan and to the Owners of the
Lots as shown and described on the Final Map referred to in
Preamble, paragraph A herein. Annual Assessment shall commence on
all Condominiums and all Lots in the Project on the first day of
the first calendar month following the first Close of Escrow for
the sale of a Condominium or a Lot in the Project or on the first
day of the first calendar month following the conveyance of
Association Property Module to the Association, whichever shall
first occur. All Annual Assessments shall be assessed equally
against the Members, their Condominiums and their Lots, based upon
the number of Condominiums or Lots owned by each Member. Annual
Assessments for fractions of any month involved shall be prorated.
Declarant shall pay its full pro rata share of the Annual
Assessments on all unsold Condominiums and Lots for which Annual
Assessments have commenced. The Board shall fix the amount of the
Annual Assessment against each Condominium and each Lot at least
thirty (30) days in advance of each Annual Assessment period.
However, unless otherwise established by the Board, the initial
Annual Assessments shall be assessed in accordance with the most
recent Budget on file with and approved by the DRE. Written notice
of any change in the amount of any Annual Assessment, Capital
Improvement Assessment or Reconstruction Assessment shall be sent
via first-class mail to every Owner subject thereto, not less than
thirty (30) nor more than sixty (60) days prior to the increased
assessment becoming due. From time to time the Board may determine
that all excess funds in the Operating Fund be retained by the
Association and used to reduce the following year's Annual
Assessment. Upon dissolution of the Association incident to the
CC&RS/CBE/
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abandonment or termination of the Property, any amounts remaining
in any of the Maintenance Funds shall be distributed to or for the
benefit of the Members in the same proportions as such monies were
collected from the Members.
Each Member shall pay to the Association his Annual Assessment
in installments at such frequency and in such amounts as
established by the Board. Each installment of Annual Assessments
may be paid by the Member to the Association in one (10 check or in
separate checks as payments attributable to deposits into specified
Association Maintenance Funds. If any installment of an Annual
Assessment payment is less than the amount assessed and the payment
does not specify the Association Maintenance Fund or Funds into
which it should be deposited, the receipt by the Association from
that Member shall be credited in order of priority first to the
Operating Fund, until that portion of the Annual Assessment has
been satisfied, and second to the Reserve Fund.
5.6. Capital Improvement Assessments.
The Board of Directors of the Association may levy, in any Fiscal
Year, a Capital Improvement Assessment or Reconstruction Assessment
applicable to that Fiscal Year only for the purpose of defraying,
in whole or in part, the cost of any construction, reconstruction,
repair or replacement of a Capital Improvement or other such
addition upon the Condominium Common Area Module or the Association
Property Module, including fixtures and personal property related
thereto; provided that any proposed Capital Improvement Assessments
in any Fiscal Year which, if added to the Capital Improvement
Assessments already levied during such Fiscal Year, exceeds five
percent (5%) of the Budgeted gross expenses of the Association for
such Fiscal Year, shall require the vote or written consent of
Members casting a majority of votes at an Increase Election.
Notwithstanding the foregoing, the Board may levy in any Fiscal
Year, a Capital Improvement Assessment applicable to that Fiscal
Year which exceeds five percent (5%) of the Budgeted gross expenses
of the Association for such Fiscal Year if such increase is
necessary for addressing an Emergency Situation as defined in
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Section 5.4(d). Any portion of the Capital Improvement
Assessment or any portion of the Reconstruction Assessment
directly related to the maintenance of the Condominium Common Area
Module shall only be assessed to the Owners of the Condominium
Units as shown and described on the recorded Condominium Plan.
Any portion of the Capital Improvement Assessment or any portion of
the Reconstruction Assessment directly related to the maintenance
of the Association Property Module shall be assessed to the Owners
of the Condominium Units as shown and described on the recorded
Condominium Plan and to the Owners of the Lots as shown and
described on the Final Map referred to in Preamble, paragraph A
herein.
5.7. Delinquency.
Any installment of an assessment provided for in this Declaration
shall be delinquent if not paid within fifteen (15) days of the due
date as established by the Board of Directors of the Association.
The Board shall be authorized to adopt a system pursuant to which
any installment of Annual Assessments, Capital Improvement
Assessments, Special Assessments, or Reconstruction Assessments not
paid within thirty (30) days after the due date, plus all
reasonable costs of collection (including attorneys' fees) and late
charges as provided herein, shall bear interest commencing thirty
(30) days from the due date until paid at the rate of up to twelve
percent (12%) per annum, but in no event more than the maximum rate
permitted by law. The Board may also require the delinquent owner
to pay a late charge in accordance with California Civil Code
Section 1366 (c) (2) . The Association need not accept any tender of
a partial payment of an installment of an assessment and all costs
and attorneys' fees attributable thereto, and any acceptance of any
such tender shall not be deemed to be a waiver of the Association's
right to demand and receive full payments thereafter.
CC&RS/CBE/
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5.8. Creation and Release of Lien.
All sums other than Special Assessments assessed in accordance with
the provisions of this Declaration shall constitute a lien on the
respective Condominium and Lot prior and superior to (a) any
declaration of homestead Recorded after the Recordation of this
Declaration, and (b) all other liens, except (1) all taxes, bonds,
assessments and other levies which, by law, would be superior
thereto, and (2) the lien or charge of any first Mortgage of record
(meaning any Recorded Mortgage or Deed of Trust with first priority
or seniority over other Mortgages or Deeds of Trust) made in good
faith and for value and Recorded prior to the date on which the
"Notice of Lien" (described in this Section) against the respective
Condominium or Lot was Recorded. The lien shall become effective
Recordation by the Board or its authorized agent of a Notice of
Assessment ("Notice of Lien") securing the payment of any Annual
Capital Improvement or Reconstruction Assessment or installment
thereof, levied by the Association against any Condominium Owner
or Lot Owner as provided in Section 1367 of the California Civil
Code. The Notice of Lien shall state (i) the amount of the
assessment or installment, as the case may be, and other authorized
charges and interest, including the cost of preparing and Recording
the Notice of Lien, (ii) the expenses of collection in connection
with any delinquent installments, including without limitation
reasonable attorneys' fees, (iii) a sufficient description of the
Condominium or Lot against which the same has been assessed, (iv)
the name and address of the Association, (v) the name of the Owner
thereof, and (vi) in order for the lien to be enforced by
nonjudicial foreclosure, the name and address of the trustee
authorized by the Association to enforce the lien by sale. The
Notice of Lien shall be signed by any authorized officer or agent
of the Association. The lien shall relate only to the individual
Condominium or Lot against which the assessment was levied and not
to Property as a whole. Upon payment to the Association of the
full amount claimed in the Notice of Lien, or other satisfaction
thereof, the Board of Directors shall cause to be Recorded a Notice
of Satisfaction and Release of Lien ("Notice of Release") stating
the satisfaction and release of the amount claimed. The Board of
Directors may demand and receive from the applicable Owner a
reasonable charge, to be determined by the Board, for the
preparation and Recordation of the Notice of Release before
Recording it. Any purchaser or encumbrancer who has acted in good
faith and extended value may rely upon the Notice of Release as
CC&RS/CBE/
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conclusive evidence of the full satisfaction of the sums stated in
the Notice of Lien.
5.9. Enforcement of Liens.
It shall be the duty of the Board of Directors to enforce the
collection of any amounts due under this Declaration by one or more
of the alternative means of relief afforded by this Declaration.
The lien on a Condominium or a Lot may be enforced by sale of the
Condominium or Lot by the Association, the Association attorneys,
any title insurance company authorized to do business in
California, or other persons authorized to conduct the sale as a
trustee, after failure of the Owner to pay any Annual, Capital
Improvement or Reconstruction Assessment, or installment thereof
as provided herein. The sale shall be conducted in accordance with
the provisions of the California Civil Code, applicable to the
exercise of powers of sale in mortgages and deeds of trust, or in
any manner permitted by law. An action may be brought to foreclose
the lien of the association by the Board, or by any Owner if the
Board fails or refuses to act, after the expiration of at least
thirty (30) days from the date on which the Notice of Lien was
Recorded; provided that at least ten (10) days have expired since
a copy of the Notice of Lien was mailed to the Owner affected
thereby. The Association, through its agents, shall have the power
to bid on the Condominium or the Lot at foreclosure sale, and to
acquire and hold, lease, mortgage and convey the same. Upon
completion of the foreclosure sale, an action may be brought by the
Association or the purchaser at the sale in order to secure
occupancy of the defaulting Owner's Unit, and the defaulting Owner
shall be required to pay the reasonable rental value for such Unit
or residence on a Lot during any period of continued occupancy by
defaulting Owner or any persons claiming under the defaulting
Owner. Suit to recover a money judgment for unpaid assessments
shall be maintainable without foreclosing or waiving any lien
securing the same, but this provision or any institution of suit to
recover a money judgment shall not constitute an affirmation of the
adequacy of money damages. Any recovery resulting from a suit in
law or equity initiated pursuant to this Section may include
reasonable attorneys' fees as fixed by the court.
CC&RS/CBE/
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5.10. Priority of Assessment Lien.
The lien of the assessments provided for herein, including interest
and costs (including attorneys' fees), shall be subordinate to the
lien of any previously Recorded first Mortgage upon one or more
Condominiums or Lots. Sale or transfer of any Condominium or Lot
shall not affect the assessment lien. However, the sale or
transfer of any Condominium or Lot pursuant to judicial or
nonjudicial foreclosure of a first Mortgage shall extinguish the
lien of such assessments as to payments which became due prior to
such sale or transfer. No sale or transfer shall relieve such
Condominium or Lot from liens for any assessments thereafter
becoming due. When the Beneficiary of a first Mortgage of record
or other purchaser of a Condominium or Lot obtains title pursuant
to a judicial or nonjudicial foreclosure of the first Mortgage
such Person, his successors and assigns, shall not be liable for
the share of the Common Expenses or assessments by the Association
chargeable to such Condominium or Lot which became due prior to the
acquisition of title to such Condominium or Lot by such Person.
Such unpaid share of Common Expenses or assessments shall be deemed
to be Common Expenses collectible from all of the Owners of the
Condominiums or Lots including such Person, the successors and
assigns.
CC&RS/CBE/
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ARTICLE VI
6. Property Easements and Rights of Entry.
6.1. Easements.
(a) Access. Declarant expressly reserves for the benefit
of the Owners reciprocal, nonexclusive easements for access,
ingress and egress over the Condominium Common Area Module and the
Association Property Module. Subject to the provisions of this
Declaration governing use and enjoyment thereof, the easements may
be used by all Owners and their guests, tenants and invitees
residing on or temporarily visiting the Property, for walkways,
vehicular access and such other purposes reasonably necessary for
use and enjoyment of a Condominium and a Lot in the Project.
(b) Maintenance and Repair. Declarant expressly reserves
for the benefit of the Board of Directors and all agents, officers
and employees of the Association, nonexclusive easements over
the Condominium Common Area Module and the Association Property
Module as necessary to maintain and repair the Condominium Common
Area Module and the Association Property Module and to perform all
other tasks in accordance with the provisions of this Declaration.
Such easements over the Condominium Common Area Module and the
Association Property Module shall be appurtenant to and binding
upon, and shall pass with the title to, every Condominium and Lot
conveyed.
(c) Utility Easements. Declarant expressly reserves for
the benefit of the Association the right of Declarant to grant
additional easements and rights-of-way over the Property to utility
companies and public agencies, as necessary, for the proper
development and disposal of the Property. Such right of Declarant
shall expire upon Close of Escrow for the sale of all Condominiums
and Lots in the Project or upon expiration of five (5) years from
the date of original issuance by the ORE of the Final Subdivision
Public Report for the Project, whichever comes first.
CC&RS/CBE/
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(d) Encroachments. Declarant, the Association and Owners
of contiguous Residences shall have a reciprocal easement
appurtenant to each of the Residences over the Residences and
the Condominium Common Area Module for the purpose of (1)
accommodating any existing encroachment of any wall of any
Improvement, arsd (2) maintaining the same and accommodating
authorized construction, reconstruction, repair, shifting, movement
or natural settling of the Improvements. Easements and reciprocal
negative easements for utility services and repairs, replacement
and maintenance of the same over all of the Condominium Common Area
Module are specifically reserved for the benefit of the Owners.
Declarant expressly reserves for the benefit of the Condominium
Common Area Module, the Association Property Module, and for the
benefit of the Owners and the Association, reciprocal nonexclusive
easements for drainage of water over, across and upon Condominium
Common Area Module and the Association Property Module. The
foregoing easements shall not unreasonably interfere with each
Owner's use and enjoyment of adjoining Residences. No portion of
the Condominium Common Area Module or the Association Property
Module, including without limitation parking spaces and other
amenities contemplated as a part of the Property, are proposed to
be leased by Declarant to the Owners or to the Association.
(e) Completion of Improvements. Declarant expressly
reserves for its benefit the right and easement to enter the
Property to complete any Improvement which Declarant deems
desirable to implement Declarant's development plan.
CCScRS/CBE/
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ARTICLE VII
7 . Declarant's Rights and Reservations.
7.1. Declarant's General Rights and Reservations.
Nothing in the Restrictions shall limit, and no Owner or the
Association shall do anything to interfere with, the right of
Declarant to subdivide or resubdivide any portion of the Property
or to complete Improvements to and on the Condominium Common
Area Module or the Association Property Module portion of the
Property owned solely or partially by Declarant, or to alter the
foregoing or its construction plans and designs, or to construct
such additional Improvements as Declarant deems advisable in the
course of development of the Property so long as any Condominium
or Lot in the Project remains unsold. The rights of Declarant
hereunder shall include, but shall not be limited to, the right to
install and maintain such structures, displays, signs, billboards,
flags and sales offices as may be reasonably necessary for the
conduct of its business of completing the work and disposing of the
Condominiums and Lots by sale, resale, lease or otherwise. Each
Owner by accepting a deed to a Condominium and a Lot hereby
acknowledges that the activities of Declarant may temporarily or
permanently impair the view of such Owner and may constitute an
inconvenience or nuisance to the Owners, and hereby consents to
such impairment, inconvenience or nuisance. This Declaration shall
not limit the right of Declarant at any time prior to acquisition
of title to a Condominium or to a Lot in the Project by a purchaser
from Declarant to establish on that Condominium or that Lot,
additional licenses, easements, reservations and rights-of -way to
itself, to utility companies, or to others as may from time to time
be reasonably necessary to the proper development and disposal of
the Property. Declarant may use any Condominiums or Lots owned
by Declarant in the Project as model home complexes or real estate
sales or leasing offices. Declarant need not seek or obtain
Architectural Committee approval of any Improvement constructed or
placed on any portion of the Property by Declarant. The rights of
Declarant hereunder and elsewhere in these Restrictions may be
assigned by Declarant to any successor-in-interest to any portion
of Declarant ' s interest in any portion of the Property by a written
assignment. Notwithstanding any other provision of this
Declaration, the prior written approval of Declarant, as developer
of the Property, will be required before any amendment to this
CC&RS/CBE/
10/5/2000
Article shall be effective. Each Owner hereby grants, upon
acceptance of the deed to the Condominium or the Lot, an
irrevocable, special power of attorney to Declarant to execute and
Record all documents and maps necessary to allow Declarant to
exercise its rights under this Article. Declarant and its
prospective purchasers of Condominiums and Lots shall be entitled
to the nonexclusive use of the Condominium Common Area Module and
the Association Property Module and any recreational facilities
thereon, without further cost for access, ingress, egress, use or
enjoyment, in order to show the Property to its prospective
purchasers and dispose of the Property as provided herein.
Declarant, its successors and tenants, shall also be entitled to
the nonexclusive use of any portions of the Property which comprise
private streets, drives and walkways for the purpose of ingress,
egress and accommodating vehicular and pedestrian traffic to and
from the Property. The use of the Condominium Common Area Module
and the Association Property Module by Declarant shall not
unreasonably interfere with the use thereof by other Owners. The
Association shall provide Declarant with all notices and other
documents to which a Beneficiary is entitled pursuant to this
Declaration, provided that Declarant shall be provided such notices
and other documents without making written request therefor. The
rights and reservations of Declarant set forth in this Article VII
shall terminate on the fifth (5th) anniversary of the first Close
Escrow for the sale of a Condominium or a Lot in the Project.
ARTICLE VIII
8. Residence and Use Restrictions.
All of the Property shall be held, used and enjoyed subject to the
following limitations and restrictions and the exemptions of
Declarant set forth in this Declaration.
CC&RS/CBE/
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8.1. Single Family Residences.
Each Condominium and Lot shall be used as a residence for a single
Family and for no other purpose. An Owner may rent the Condominium
or the Lot to a single Family provided that the Condominium or the
Lot is rented pursuant to a lease or rental agreement which is (a)
in writing, (b) for a term of at least thirty (30) days, and (c)
subject to all of the provisions of this Declaration. Because of
the location of a "granny flat" on Lot 1, more fully described in
Preamble, paragraph "A", the foregoing requirements shall not
apply to the rental of said "granny flat" by the Owner of Lot.
8.2. Parking and Vehicular Restrictions.
(a) Authorized Vehicles. The following vehicles are
Authorized Vehicles: motorized land vehicles designed and used
primarily for non-commercial passenger transport, such as
automobiles, passenger vans designed to accommodate ten (10) or
fewer people, two-wheel motorcycles, and pick-up trucks having
a manufacturer's rating or payload capacity of one (1) ton or less.
Authorized Vehicles may be parked in any portion of the Project
intended for parking of motorized vehicles.
(b) Prohibited Vehicles. The following vehicles are
Prohibited Vehicles: recreational vehicles (e.g., motorhomes,
travel trailers, camper vans, boats, etc.), commercial-type
vehicles (e.g., stakebed trucks, tank trucks, dump trucks, step
vans, concrete trucks, etc.), buses or vans designed to accommodate
more than ten (10) people, vehicles having more than two (2)
axles, trailers, inoperable vehicles or parts of vehicles,
aircraft, other similar vehicles or any vehicle or vehicular
equipment deemed a nuisance by the Board. Prohibited Vehicles
shall not be parked, stored or kept on any portion of the Project
unless specifically authorized by the Board.
CC&RS/CBE/
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(c) General Restrictions. Subject to the restriction on
Prohibited Vehicles, all vehicles owned or operated by or within
the control of an Owner or a resident of an Owner's Condominium
or Lot and within the Property shall be parked in the Garage of
that Owner to the extent of the space available; provided that each
Owner shall ensure that any such garage accommodates at least the
number of Authorized Vehicles for which it was originally
constructed. No repair, maintenance or restoration of any vehicle
shall be conducted on the Property except within an enclosed garage
when the garage door is closed, provided such activity is not
undertaken as a business, and provided that such activity may be
prohibited entirely by the Board if the Board determines that it
constitutes a nuisance.
(d) Parking Regulations. The Board may establish
additional regulations as it deems appropriate in its sole
discretion with regard to any of the parking areas not assigned to
the Owners of Condominiums or of Lots, including without limitation
designating "parking," "guest parking," and "no parking" areas
thereon; and shall have the power to enforce all parking
vehicle use regulations applicable to the Property, including the
power to remove violating vehicles from any portion of the Property
pursuant to California Vehicle Code Section 22658.2 or other
applicable statute. If the Board fails to enforce any of the
parking or vehicle use regulations, the City may, but need not
enforce such regulations in accordance with state and local laws
and ordinances.
CC&RS/CBE/
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8.3. Nuisances.
No noxious or offensive activities shall be carried on upon the
Property or on any public street abutting or visible from the
Property. No horns, whistles, bells or other sound devices, except
security devices used exclusively to protect the security of a
Residence and its contents, shall be placed or used in any such
Residence. Noisy or smoky vehicles, large power equipment and
large power tools, off-road motor vehicles or items which may
unreasonably interfere with television or radio reception of any
Owner in the Project and objects which create or emit loud noises
or noxious odors, shall not be located, used or placed on any
portion of the Property or exposed to the view of other Owners
without the prior written approval of the Architectural Committee.
The Board shall have the right to determine if any noise, odor, or
activity producing such noise or odor constitutes a nuisance.
Each Owner shall comply with all of the requirements of the local
or state health authorities and with all other governmental
authorities with respect to the occupancy and use of a Residence.
Each Owner shall be accountable to the Association and other Owners
for the conduct and behavior of children and other family members
or persons residing in or visiting his Unit. Any damage to the
the Condominium Common Area Module, the Association Property
Module, the personal property of the Association, or property
another Owner, caused by such children or other family members
shall be repaired at the sole expense of the Owner of the Unit
where such children or other family members or persons are residing
or visiting. Use of skateboards and/or use of temporary basketball
equipment on either the Condominium Common Area Module or the
Association Property Module shall constitute a "nuisance" as
provided herein.
8.4. 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 Property or on any public street abutting or visible from the
Property, or shown or displayed from any Residence, without the
prior written consent of the Architectural Committee, provided,
however, that the restrictions of this Section shall not apply to
any sign or notice of customary and reasonable dimension which
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states that the Residence is for rent or sale, so long as it is
consistent with the standards promulgated by the Architectural
Committee in accordance with Section 4.2 hereof. Such sign or
notice may be placed within a Unit, and may also be placed upon the
Association Property Module or the Condominium Common Area Module
with the prior written approval of the Architectural Committee;
provided that the location of such sign or notice on the
Association Property Module or the Condominium Common Area Module
shall be within an area specifically established by the Committee
for such purpose. This Section shall not apply to any signs used
by Declarant or its agents in connection with the sale of
Condominiums or Lot or the construction or alteration of the Units,
the Condominium Common Area Module, the Association Property
Module, traffic and visitor parking signs installed by Declarant,
and traffic and parking control signs installed with the consent of
the Board. Notwithstanding the foregoing, nothing contained in
this Section shall be construed in such manner as to permit the
maintenance of any sign which is not in conformance with any
ordinance of the City.
8.5. Antennas/Satellite Dishes.
No television or radio poles, antennae, satellite dishes, other
than those originally installed by the Original Declarant, shall
be constructed, erected or maintained on or within the Project;
provided however, the foregoing language shall not be construed to
limit the installation or use of video or television antennas
within the Project, including a satellite dish (hereafter referred
to as "Antenna"), that is of a size and type consistent with Civil
Code Section 1376, or any successor statute, provided the Owner
submits an application to the Architectural Control Committee and
obtains the approval thereof in accordance with the procedures set
forth in Article IV herein. Notwithstanding the foregoing, neither
the Architectural Committee nor the Board of Directors shall impose
or enforce any restrictions on Antennas which are inconsistent with
the requirements set forth in Section 207 of the Telecommunications
Act of 1996 (47 U.S.C. Section 303 et. seq.), any regulations
issued pursuant thereto, and/or any successor statute.
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8.6. Animal Regulations.
No livestock, reptiles, insects, poultry or other animals of any
kind shall be raised, bred or kept in any Residence except that
usual and ordinary domestic dogs, cats, fish, and birds inside bird
cages may be kept as household pets within any Residence provided
that they are not kept, bred or raised therein for commercial
purposes or in unreasonable quantities or sizes. As used in this
Declaration, "unreasonable quantities" shall ordinarily mean more
than two (2) pets per Residence; provided, however, that the Board
may determine that a reasonable number in any instance may be more
or less. The Board shall have the right to limit the size of pets
and may 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 Property, must be either kept within an
enclosure, an enclosed patio or balcony or on a leash held by a
person capable of controlling the animal. Furthermore, any Owner
shall be liable to each and all remaining Owners, their families,
guests and invitees, for any unreasonable noise or damage to person
or property caused by any animals brought or kept upon the Property
by such Owner or by members of his family, his tenants or his
guests; and it shall be the duty and responsibility of each such
Owner to clean up after such animals which have used any portion of
the Property.
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8.7. Business or Commercial Activity.
No part of the Property shall ever be used for any business,
commercial (including auctions or similar events), manufacturing,
mercantile, storage, vending or other nonresidential purposes,
including without limitation any activity for which the provider is
compensated in any way or receives any form of consideration,
regardless of whether the activity is engaged in full or part-time
generates or does not generate a profit, or requires or does not
require a license; except Declarant, its successors and assigns may
use any portion of the Property for a model home site and display
and sales offices in accordance with Article VII hereof. The
provisions of this Section 8.7 shall not preclude any of the above-
described activities without external evidence thereof, provided,
that all of the following conditions are fulfilled: (a) such
activities are conducted in conformance with all applicable
governmental ordinances; (b) the patrons or clientele of such
activities do not visit the Unit, Residence on the Lot or park
automobiles or other vehicles within the Property; (c) the
existence or operation of such activities is not apparent or
detectable by sight, sound or smell from the outside of the
boundaries of the Unit or the boundaries of the Lot; (d) no such
activity increases the liability or casualty insurance obligation
or premium of the Association; and (e) such activities are
consistent with the residential character of the Property and
conform with the provisions of this Declaration.
8.8. Rubbish Removal.
Trash, garbage, or other waste shall be disposed of by residents of
the Project only by depositing the same into trash containers.
No portion of the Property shall be used for the storage of
building materials, refuse or any other materials. No clothing,
household fabrics or other unsightly articles shall be hung, dried,
or aired on any portion of the Property, so as to be visible from
other Residences or the street, nor shall any storage (other than
temporary storage of building materials) be permitted. There shall
be no exterior fires whatsoever except barbecue fires contained
within receptacles therefor. All of the Lots and Units are subject
to assessment for city rubbish collection. This assessment will
appear on the tax bill for each Lot and each Unit. A trash bin
will be included as an Improvement to the Condominium Common Area
Module. The costs of rubbish collection from the trash bin located
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on the Condominium Common Area Module will be included as part of
the Annual Assessment to be paid by all of the Owners of
Condominiums in the Project. The Owners of the Lot 1 to Lot 4,
inclusive, more fully described in Preamble, paragraph A herein,
shall not be responsible for the portion of the Annual Assessment,
levied by the Board, for the collection of rubbish from the trash
bin located on the Condominium Common Area Module.
8.9. Further Subdivision/Outbuildings.
Except as otherwise provided herein, no Owner shall physically or
legally further subdivide his Unit in any manner, including without
limitation, the division of his Unit or his Condominium into time-
share estates or time-share uses; provided, however, that this
provision shall not be construed to limit the right of an Owner to
(1) rent or lease all of his Unit by means of a written lease or
rental agreement subject to the restrictions of this Declaration;
(2) to sell his Condominium; or (3) to transfer or sell any
Condominium to more than one Person to be held by them as tenants-
in-common, joint tenants, tenants by the entirety or as community
property. Any failure by the lessee of the Unit to comply with the
terms of this Declaration, the Bylaws of the Association or the
Rules and Regulations shall constitute a default under the lease or
rental agreement. Notwithstanding the foregoing, no-Unit in the
Project may be partitioned or subdivided without the prior written
approval of the Beneficiary of any first Mortgage on that Unit.
This Section may not be amended without the prior written approval
of the Beneficiaries of at least seventy-five percent (75%) of the
first Mortgages of Condominiums in the Project. No Owner of either
a Lot and/or a Condominium shall install any additional physical
structure (i.e. "outbuilding") on any portion of the Lot or within
the airspace boundaries of the Unit.
8.10. Drainage.
There shall be no interference with or alteration of the
established drainage pattern over the Property, unless an adequate
alternative provision is made for proper drainage with the prior
written approval of the Architectural Committee. For the purpose
hereof, "established" drainage is defined as the drainage which
exists at the time of the first Close of Escrow for the sale of a
Condominium or a Lot, or that which is shown on any plans approved
by the Architectural Committee.
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ARTICLE IX
9. Insurance.
9.1. Duty to Obtain Insurance: Types.
(a) Public Liability. The Board shall cause to be
obtained and maintained adequate blanket public liability
insurance, including medical payments, with such limits as may be
considered acceptable to FNMA (not less than $1 million covering
all claims for personal injury and property damage arising out of
a single occurrence), insuring against liability for bodily injury,
death and property damage arising from the activities of the
Association with respect to maintenance of the Condominium Common
Area Module and the Association Property Module. The Board shall
review the endorsements, such as "primary coverage", "agreed
amount", inflation guard", "ordinance or law" and "replacement
cost", recommended for the foregoing coverage and/or for additional
types of insurance described hereafter. In addition, the Board
shall review with the insurance agent the type of losses covered
such as fire or customary coverage insurance language such as
"special form" policy. The covered parties may include the
Association, its officers, directors, members and may include other
parties, such as the Declarant at the discretion of the applicant.
(b) Fidelity Bond. Fidelity bond coverage which names
the Association as an obligee must be obtained by or on behalf of
the Association for any person or entity handling funds of the
Association, including, but not limited to, officers, directors,
trustees, employees and agents of the Association and employees of
the Manager of the Association, whether or not such Persons are
compensated for their services, in an amount not less than the
estimated maximum of funds, including reserve funds, in the custody
of the Association or the Manager, as the case may be, at any given
time during the term of each bond. However, in no event may the
aggregate amount of such bonds be less than the sum equal to one
fourth (1/4) of the Annual Assessments on all Lots in the Property,
plus reserve funds.
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(c) Insurance Required by FNMA, GNMA and FHLMC.
The Association shall continuously maintain in effect such
casualty, flood and liability insurance and fidelity bond coverage
meeting the insurance and fidelity bond requirements for
condominium projects and planned unit developments established by
FNMA, GNMA and FHLMC, so long as any of which is a Mortgagee or
Owner of a Condominium or a Lot within the Property, except to the
extent such coverage is not available or has been waived in writing
by FNMA, GNMA and FHLMC, as applicable.
(d) Other Insurance. The Board of Directors may
purchase such other insurance, as necessary, respect to
condominium project and planned developments similar in
construction, location and use.
(e) Beneficiaries. Such insurance shall be maintained for
the benefit of the members of the Association.
(f) Payment of Deductible. The Association is
responsible for the payment of any deductible portion of any type
of insurance maintained by the Association in accordance with this
Article IX. The Board of Directors is hereby authorized to adopt
policies with regard to the payment of deductibles.
9.2. Waiver of Claims Against Association.
As to all policies of insurance maintained by or for the benefit of
the Association and its members, the Association and its members
hereby waive and release all claims against one another, the Board
of Directors and Declarant, to the extent of the insurance proceeds
available, whether or not the insurable damage or injury is caused
by the negligence of or breach of any agreement by any of said
Persons.
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9.3. Right and Duty of Owners to Insure/Repair
and Replace.
It is the responsibility of each Owner to provide insurance for the
Owner's Condominium or the Residence on the Owner's Lot. It is the
responsibility of each Owner to pay the deductible amount of any
insurance on the Owner's Condominium or the Residence on the
Owner's Lot. It is the responsibility of each Owner to repair
and replace the any damage to the Owner's Condominium or the
Residence on the Owner's Lot in a timely manner.
9.4. Notice of Expiration Requirements.
If available, each of the policies of insurance maintained by the
Association shall contain a provision that said policy shall not be
canceled, terminated, materially modified or allowed to expire by
its terms, without ten (10) days' prior written notice to the Board
and Declarant, and to each Owner and Beneficiary, insurer and
guarantor of a first Mortgage who has filed a written request with
the carrier for such notice, and every other Person in interest who
requests such notice of the insurer. In addition, fidelity bonds
shall provide that they may not be canceled or substantially
modified without ten (10) days prior written notice to any
insurance trustee named pursuant to Section 9.6 and to each FNMA
servicer who has filed a written request with the carrier for such
notice.
9.5. Insurance Premiums.
Insurance premiums for any insurance coverage obtained by the
Association and deemed necessary by the Board of Directors shall be
a Common Expense to be included in the Annual Assessments levied by
the Association and collected from the Owners. That portion of the
Annual Assessments necessary for the required insurance premiums
shall be separately accounted for by the Association in the Reserve
Fund, to be used solely for the payment of premiums of required
insurance as such premiums become due.
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9.6. Trustee for Policies.
The Association, acting through its Board of Directors, is hereby
appointed and shall be deemed trustee of the interests of all named
insureds under policies of insurance purchased and maintained by
the Association. Unless the applicable insurance policy provides
for a different procedure for the filing of claims, all claims made
under such policy shall be sent to the insurance carrier or agent,
as applicable, by certified mail and be clearly identified as a
claim. A record of all claims made shall be kept by the
Association. All insurance proceeds under any such policies as
provided for in Section 9.1 of this Article shall be paid to the
Board of Directors as trustees. The Board shall have full power to
receive and to receipt for the proceeds and to deal therewith as
provided herein. Insurance proceeds shall be used by the
Association for the repair or replacement of the property for which
the insurance was carried or otherwise disposed of as provided in
this Declaration. The Board is hereby granted the authority to
negotiate loss settlements with the appropriate insurance carriers,
with participation, to the extent they desire, of first Mortgagees
who have filed written requests within ten (10) days of receipt of
notice of any damage or destruction as provided in this
Declaration. Any two (2) officers of the Association may sign a
loss claim form and release form in connection with the settlement
of a loss claim, and such signatures shall be binding on all the
named insureds. A representative chosen by the Board may be named
as an insured, including a trustee with whom the Association may
enter into an insurance trust agreement or any successor to such
trustee, who shall have exclusive authority to negotiate losses
under any policy providing property or liability insurance and to
perform such other functions necessary to accomplish this purpose.
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9.7. Actions as Trustee.
Except as otherwise specifically provided in this Declaration, the
Board, acting on behalf of the Association and all Owners, shall
have the exclusive right to bind such parties in respect to all
matters affecting insurance carried by the Association, the
settlement of a loss claim, and the surrender, cancellation, and
modification of all such insurance, in a manner satisfactory to
Beneficiaries of seventy-five percent (75%) of the first Mortgages
held by first Mortgagees who have filed requests under Section 9.4.
Duplicate originals or certificates of all policies of fire and
casualty insurance maintained by the Association and of all
renewals thereof, together with proof of payment of premiums,
shall be delivered by the Association to all Owners and Mortgagees
who have requested the same in writing.
9.8. Restoration of the Condominium Common Area Module/
Association Property Module.
Except as otherwise provided in this Declaration, in the event of
any destruction of any portion of the Improvements to the
Condominium Common Area Module and/or the Association Property
Module, the repair or replacement of which are the responsibility
of the Association, it shall be the duty of the Association to
restore and repair the Improvements to their former condition, as
promptly as practical. The proceeds of any insurance and reserve
funds maintained pursuant to Article IX hereof for reconstruction
or repair of the Improvements to the Condominium Common Area Module
and/or the Association Property Module shall be used for such
purpose, unless otherwise provided herein. The Board shall have
authorized to have prepared the necessary documents to effect such
reconstruction as promptly as practical. The Improvements to the
Condominium Common Area Module and/or the Association Property
Module shall be reconstructed or rebuilt substantially in
accordance with the original construction plans if they are
available, unless changes recommended by the Architectural
Committee have been approved in writing by sixty-seven percent
(67%) of the Owners and by the Beneficiaries of fifty-one percent
(51%) of first Mortgages upon the Lots. If the amount available
from the proceeds of such insurance policies for such restoration
and repair is at least eighty-five percent (85%) of the estimated
cost of restoration and repair, a Reconstruction Assessment shall
be levied by the Board of Directors to provide the necessary funds
for such reconstruction, over and above the amount of any insurance
CC&RS/CBE/
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proceeds available for such purpose. If the amount available from
the proceeds of such insurance policies for such restoration and
repair is less than eighty-five percent (85%) of the estimated cost
of restoration and repair, the Board may levy a Reconstruction
Assessment and proceed with the restoration and repair only if both
of the following conditions ("Conditions to Reconstruction") have
first been satisfied: (a) the levy of a Reconstruction Assessment
to pay the costs of restoration and repair of the Property is
approved by the affirmative vote of written consent of sixty-seven
percent (67%) of the Owners and by the written consent of the
Beneficiaries of fifty-one percent (51%) of the first Mortgages on
the Lots in which Project; and (b) within six (6) months after the
date on which the destruction occurred, the Board Records a
certificate of the resolution authorizing the restoration and
repair ("Reconstruction Certificate"). If either of the Conditions
to Reconstruction does not occur following a destruction for which
insurance proceeds available for restoration and repair are less
than eighty-five percent (85%) of the estimated cost of restoration
and repair, it shall be conclusively presumed that the Owners have
determined not to proceed with restoration and repair and not to
allow the Board to levy a Reconstruction Assessment, in which case
the Owners may proceed as provided in Section 9.9 below.
9.9. Sale of Property and Right to Partition.
No Owner shall have the right to partition of his interest in the
Condominium or the Lot and there shall be no judicial partition of
the Project, or any part thereof, except as provided in Section
1359(b) of the California Civil Code as amended or in any successor
statute.
9.10. Repair Procedures.
The Board of Directors shall establish a reasonable time schedule
for commencement and completion of the repairs to the Improvements
to the Condominium Common Area Module and/or the Association
Property Module described in this Article IX. In addition, the
Board of Directors shall establish procedures for the control and
distribution of the repair funds, and contract and bid
requirements. The procedures may provide that the insurance
proceeds may be used to reimburse the Association for its costs in
assessing the damage, determining the repair requirements, securing
repair funds and supervising the repairs.
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9.11. Procedures When Repairs are Not Made.
If the repairs described in this Article IX are not made, the Board
of Directors may adopt procedures which include the following:
(i) the elimination or protection against hazardous
conditions;
(ii) the sale and removal of the damaged improvements
(including the sale of the entire project when warranted)
(iii) distribution of sale and insurance proceeds
reconfiguration of the project if necessary.
(iv) the dissolution of the Association and the
distribution of its assets if warranted.
(v) resolution of disputes; and
(vi) the preservation of Owners rights under Civil Code
Section 1359 when applicable.
9.12. Insurance Review.
The Board shall review the insurance carried by or on behalf of the
Association at least annually, for the purpose of determining the
amount of the casualty and fire insurance referred to in Section
9.1 above. If economically feasible, the Board shall obtain a
current appraisal of the full replacement value of the Improvements
on the Association Property except for foundations and footings,
without deduction for depreciation, from a qualified independent
insurance appraiser, prior to each such annual review.
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ARTICLE X
10. Eminent Domain-Association Property Module.
The term "taking" as used in this Article shall mean condemnation
by exercise of the power of eminent domain or by sale under threat
of the exercise of the power of eminent domain. The Board shall
represent the Owners, in any proceedings, negotiations,
settlements, or agreements regarding takings. All takings
proceeds shall be payable to the Association for the benefit of the
Lot Owners and their Mortgagees, and shall be distributed to such
Owners and Mortgagees as provided in this Article X.
10.1. Condemnation of Association Property Module.
If there is a taking of all or any portion of the Association
Property Module, then the award in condemnation shall be paid to
the Association and shall be deposited in the Operating Fund.
10.2. Notice to Owners and Mortgagees.
The Board, upon learning of any taking affecting a material portion
of the Association Property Module, or any threat thereof, shall
promptly notify all Owners and those Beneficiaries, insurers and
guarantors of Mortgages on Condominiums and/or Lots in the Project
who have filed a written request for such notice with the
Association.
10.3. Sale by Consent.
The Board of Directors is hereby authorized to approve a sale of
the condemned property to the condemning authority in lieu of
actual condemnation proceedings once the sale has been approved in
writing by sixty-seven percent (67%) of the Owners in the Project.
10.4. Distribution of Proceeds.
The proceeds of a sale or condemnation, as described in the Article
X, shall be distributed in the following order of priority: (1) to
the Association, to reimburse the Association for expenses related
to a sale or condemnation, and (2) to all Owners and to their
mortgagees. Proceeds from the sale or condemnation of the
Association Property shall be distributed based upon assessment
allocations.
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ARTICLE XI
11. Eminent Domain-Condominium Common Area Module.
The term "taking" as used in this Article shall mean condemnation
by exercise of the power of eminent domain or by sale under threat
of the exercise of the power of eminent domain. The Board shall
represent the Owners, in any proceedings, negotiations, settlements
or agreements regarding takings. All takings proceeds shall be
payable to the Association for the benefit of the Owners of the
Condominiums.
11.1. Condemnation of Condominium Common Area Module.
If there is a taking of all or any portion of the Condominium
Common Area Module, then the award in condemnation shall be paid to
the Association and shall be deposited in the Operating Fund.
11.2. Notice to Owners and Mortgagees.
The Board, upon learning of any taking affecting a material portion
of the Condominium Common Area Module, or any threat thereof, shall
promptly notify all Condominium Owners and those Beneficiaries,
insurers and guarantors of Mortgages on Condominiums in the Project
who have filed a written request for such notice with the
Association.
11.4. Distribution of Proceeds.
The proceeds of a sale or condemnation, as described in the Article
XI, shall be distributed in the following order of priority: (1) to
the Association, to reimburse the Association for expenses related
to a sale or condemnation, and (2) to all Condominium Owners and to
their mortgagees. Proceeds from the sale or condemnation of the
Condominium Common Area Module shall be distributed based upon
assessment allocations.
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ARTICLE XII
12. Rights of Mortgagees.
Notwithstanding any other provisions of this Declaration, no
amendment or violation of this Declaration shall operate to defeat
or render invalid the rights of the Beneficiary under any Deed of
Trust upon one (1) or more Condominiums or Lots made in good faith
and for value, provided that after the foreclosure of any such Deed
of Trust, such Condominium(s) or Lots shall remain subject to this
Declaration, as amended. For purposes of this Declaration, "first
Mortgage" shall mean a Mortgage with first priority over other
Mortgages or Deeds of Trust on a Condominium or a Lot, and "first
Mortgagee" shall mean the Beneficiary of a first Mortgage. For
purposes of any provision of this Declaration or the other
Restrictions which require the vote or approval of a specified
percentage of first Mortgagees, such vote or approval shall be
determined based upon one (1) vote for each Condominium or Lot
encumbered by each such first Mortgagee. In order to induce
FHLMC, GNMA and FNMA to participate in the financing of the sale of
Condominiums and Lots within the Project, the following provisions
are added hereto (and to the extent these added provisions conflict
with any other provisions of the Restrictions, these added
provisions shall control):
(a) Each Beneficiary, insurer and guarantor of a first
Mortgage encumbering one (1) or more Condominiums or Lots, upon
filing a written request for notification with the Board, is
entitled to written notification from the Association of:
(1) any condemnation or casualty loss which affects
either a material portion of the Project, the Unit(s), or the
Residence on the Lot, securing the respective first Mortgage,- and
(2) any delinquency of sixty (60) days or more in
the performance of any obligation under the Restrictions, including
without limitation the payment of assessments or charges owed by
the Owner(s) of the Unit(s) or the Owner(s) of the Residences on
the Lots securing the respective first Mortgage, which notice each
Owner hereby consents to and authorizes; and
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(3) a lapse, cancellation, or material modification
of any policy of insurance or fidelity bond maintained by the
Association; and
(4) any proposed action of the Association which
requires consent by a specified percentage of first Mortgagees.
(b) Each Owner, including each first Mortgagee of a
Mortgage encumbering any Condominium or Lot who obtains title to
such Condominium or to such Lot, pursuant to the remedies provided
in such Mortgage, or by foreclosure of the Mortgage, or by deed or
assignment in lieu of foreclosure, shall be exempt from any "right
of first refusal" created or purported to be created by the
Restrictions.
(c) Each first Mortgagee of a Mortgage encumbering any
Condominium or Lot which obtains title to such Condominium or Lot
pursuant to the remedies provided in such Mortgage or by
foreclosure of such Mortgage, shall take title to such Condominium
or Lot free and clear of any claims for unpaid assessments or
charges against such Condominium or Lot which accrued prior to the
time such Mortgagee acquires title to such Condominium or Lot in
accordance with Section 5.10.
(d) Unless at least sixty-seven percent (67%) of the
first Mortgagees or sixty-seven percent (67%) of the Owners (other
than Declarant) have given their prior written approval, neither
the Association nor the Owners shall:
(1) by act or omission seek to abandon or terminate
the Property; or
(2) change the pro rata interest or obligations of
any Condominium or Lot in order to levy assessments or charges,
allocate distributions of hazard insurance proceeds or condemnation
awards or determine the pro rata share of ownership of each
Condominium in the Condominium Common Area Module and each
Condominium and each Lot in the Association Property Module; or
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(3) partition or subdivide any Condominium Unit; or
(4) by act or omission, seek to abandon, partition,
subdivide, encumber, sell or transfer the Condominium Common Area
Module or the Association Property Module; or
(The granting easements for public utilities or for purposes
consistent with the intended use of the Condominium Common Area
Module or the Association Property Module under this Declaration,
and the granting of exclusive easements to Owners over portions of
the Condominium Common Area Module or the Association Property
Module to conform the boundaries of the Condominium Common Area
Module or Association Property Module to the as-built location of
Improvements installed or constructed by Declarant shall not be
deemed a transfer within the meaning of this clause); or
(5) by act or omission change, waive or abandon any
scheme of regulations, or enforcement thereof, pertaining to the
architectural design, the exterior appearance or the maintenance of
the Units, the Condominium Common Area Module or the Association
Property Module; or
(6) fail to maintain or cause to be maintained Fire
and Extended Coverage insurance on insurable Condominium Common
Area Module or the Association Property Module as provided in
Article IX of this Declaration; or
(7) use hazard insurance proceeds for losses to the
Condominium Common Area Module or the Association Property Module
for other than the repair, replacement or reconstruction of the
Condominium Common Area Module or the Association Property Module;
or
(8) change the method of determining the
obligations, assessments, other charges which may be levied any
Owner.
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(e) All Beneficiaries, insurers, and guarantors of first
Mortgages, upon written request to the Association, shall have the
right to:
(1) examine current copies of the Association's
books, records and financial statements and the Restrictions during
normal business hours; and
(2) require the Association submit an annual audited
financial statement without expense to the entity requesting the
statement; and
(3) receive written notice of all meetings of
Owners; and
(4) designate in writing a representative who shall
be authorized to attend all meetings of Owners.
(f) All Beneficiaries, insurers and guarantors of first
Mortgages, upon written request, shall be given thirty (30) days
written notice prior to the effective date of (1) any proposed
material amendment to the Restrictions or Condominium Plans,- (2)
any termination of an agreement for professional management of the
Property following any decision of the Owners to assume self-
management of the Project; and (3) any proposed termination of the
Property as a condominium project and planned development.
(g) The Reserve Fund described in Article V of this
Declaration must be funded by regular scheduled monthly, quarterly,
semiannual or annual payments rather than by large special
assessments.
(h) The Board shall secure and cause to be maintained in
force at all times a fidelity bond for any Person handling funds of
the Association, including, but not limited to, employees of the
professional Manager.
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(i) The Board may enter into such contracts or agreements
on behalf of the Association as are required in order to satisfy
the guidelines of the FHLMC, FNMA or GNMA or any similar entity, so
as to allow for the purchase, guaranty or insurance, as the case
may be by such entities of first Mortgages encumbering
Condominiums and Lots. Each Owner hereby agrees that it will
benefit the Association and the membership of the Association, as
a class of potential Mortgage borrowers and potential sellers of
their residential Condominiums and Lots, if such agencies approve
the Property as a qualifying subdivision under their respective
policies, rules and regulations, as adopted from time to time.
Each Owner hereby authorizes his Mortgagees to furnish information
to the Board concerning the status of any Mortgage encumbering a
Condominium or Lot.
(j) When professional management has been previously
required by a Beneficiary, insurer or guarantor of a first
Mortgage, any decision to establish self-management by the
Association shall require the approval of sixty-seven percent (67%)
of the voting power of the Association and the Beneficiaries of
fifty-one percent (51%) of the first Mortgages of Condominiums and
Lots in the Project.
(k) First Mortgagees may, jointly or singly, pay taxes or
other charges which are in default and which may or have become a
charge against the Condominium Common Area Module or the
Association Property Module and may pay any overdue premiums
hazard insurance policies, or secure new hazard insurance coverage
on the lapse of a policy, for the Condominium Common Area Module or
the Association Property Module and First Mortgagees making such
payments shall be owed immediate reimbursement therefor from the
Association.
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ARTICLE XIII
13. Duration and Amendment.
13.1. Duration.
This Declaration shall continue in full force for a term of fifty
(50) years from the date of Recordation hereof, after which the
term shall be automatically extended for successive periods of ten
(10) years, unless a Declaration of Termination satisfying the
requirements of an amendment to this Declaration as set forth in
Section 13.2 is Recorded. There shall be no severance by sale
conveyance, encumbrance or hypothecation of an interest in any Unit
or Lot from the concomitant Membership in the Association, as long
as this Declaration shall continue in full force and effect.
13.2. Termination and Amendment.
(a) Notice of the subject matter of a proposed amendment
to this Declaration in reasonably detailed form shall be included
in the notice of any meeting or election of the Association at
which a proposed amendment is to be considered. The resolution
shall be adopted by the vote, in person or by proxy, or written
consent of Members representing not less than (i) sixty-seven
percent (67%) of the voting power of each Class of Members of the
Association, and (ii) sixty-seven percent (67%) of the voting power
of the Association residing in Members other than Declarant;
provided that the specified percentage of the voting power of the
Association necessary to amend a specified Section or provision of
this Declaration shall not be less than the percentage of
affirmative votes prescribed for action to be taken under that
Section or provision.
(b) Members and Declarant provided above, the
Beneficiaries of fifty-one percent (51%) of the first Mortgages on
all the Condominiums and Lots in the Project who have requested
the Association to notify them of proposed action requiring the
consent of a specified percentage of first Mortgagees must approve
any amendment to this Declaration which is of a material nature, as
follows:
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(1) Any amendment which expressly benefits, affects
or purports to affect the validity or priority of Mortgages or the
rights or protection granted to Beneficiaries, insurers or
guarantors of first Mortgages as provided in Articles V, IX, X, XI,
XII and XIII hereof.
(2) Any amendment which would necessitate a
Mortgagee after it has acquired a Condominium or Lot through
foreclosure, to pay more than its proportionate share of any unpaid
assessment or assessments accruing after such foreclosure.
(3) Any amendment which would or could result in a
Mortgage being canceled by forfeiture, or in a Condominium
or Lot not being separately assessed for tax purposes.
(4) Any amendment relating to the insurance
provisions as set out in Article IX hereof, or to the application
of insurance proceeds as set out in Article X hereof, or to the
disposition of any money received in any taking under condemnation
proceedings.
(5) Any amendment which would or could result in
partition or subdivision of a Condominium Unit or Lot in any manner
inconsistent with the provisions of this Declaration.
(6) Any amendment which would subject any Owner to
a right of first refusal or other such restriction, if such
Condominium or Lot is proposed to be sold, transferred, or
otherwise conveyed.
(7) Any amendment concerning:
(A) Voting rights;
(B) Rights to use the Condominium Common
Area Module or the Association Property Module.
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(C) Reduction in Reserves for maintenance,
repair and replacement of the Condominium Common Area Module or the
Association Property Module;
(D) Redefinition of any Unit or Lot
boundaries;
(F) Convertibility of the Condominium Common
Area Module or the Association Property Module into Units or Lots
or Units and Lots into Condominium Common Area Module or the
Association Property Module;
(G) Imposition of any restriction on leasing
of Units or Lots;
(H) A decision by the Association, if the
project consist of fifty (50) or more Units and Lots, to establish
self-management if professional management had been required
previously by the Restrictions or by an eligible mortgage holder;
(I) Annexation or deannexation of real
property to or from the Property; or
(J) Increases in assessments that raise the
previously assessed amount by more than twenty-five percent (25%),
assessment liens, or the priority of assessment liens.
(K) Responsibility for maintenance and repairs.
(L) Imposition of any restrictions on a Unit or
Lot Owner's right to sell or transfer his or her Unit or Lot.
(M) Restoration or repair of the Project (after
damage or partial condemnation) in a manner other than specified in
the Restrictions;
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(c) Termination of this Declaration shall require
approval by the Members as provided in subsection (a) of
this Section 13.2. No such termination shall be effective unless
it is also approved in advance either by fifty-one percent (51%) of
the Beneficiaries of the first Mortgages on all of the
Condominiums and Lots in the Project (if said termination is
proposed by reason of the substantial destruction or condemnation
of the Project) or by sixty-seven percent (67%) of such
Beneficiaries (if said termination is for reasons other than such
substantial destruction or condemnation) .
(d) Each Beneficiary of a first Mortgage on a Condominium
or Lot in the Project which receives proper written notice of a
proposed amendment or termination of this Declaration by certified
or registered mail with a return receipt requested shall be deemed
to have approved the amendment or termination if the Beneficiary
fails to submit a response to the notice within thirty (30) days
after the Beneficiary receives the notice.
(e) A copy of each amendment shall be certified by at
least two (2) officers of the Association, and the amendment shall
be effective when a Certificate of Amendment is Recorded. The
Certificate, signed and sworn to by two (2) officers of the
Association that the requisite number of Owners and mortgagees have
either voted for or consented in writing to any amendment adopted
as provided above, when Recorded, shall be conclusive evidence of
that fact. The Association shall maintain in its files the record
of all such votes or written consents for a period of at least four
(4) years. The certificate reflecting any termination or amendment
which requires the written consent of any of the Beneficiaries of
first Mortgages shall include a certification that the requisite
approval of such first Mortgagees has been obtained.
(f) Notwithstanding any other provisions of this Section
13.2, at any time prior to the first Close of Escrow for the sale
of a Condominium or Lot within the Project, Declarant may
unilaterally amend or terminate this Declaration by Recording a
written instrument which effects the amendment or termination and
is signed and acknowledged by Declarant.
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(g) Notwithstanding any other provisions of this Section
13.2, for so long as Declarant owns any portion of the Property,
Declarant may unilaterally amend this Declaration by Recording a
written instrument signed by Declaration in order to conform this
Declaration to the requirements of VA, FHA, DRE, FNMA, GNMA or
FHLMC then in effect.
13.3. Protection of Declarant.
Until the fifth (5th) anniversary of the first Close of Escrow for
the sale of a Condominium or Lot in the Project, the prior written
approval of Declarant, as developer of the Property, will be
required before any amendment which would impair or diminish the
rights of Declarant to complete the Property or sell or lease
Condominiums or Lots therein in accordance with this Declaration
shall become effective. Notwithstanding any other provisions of
the Restrictions, until such time as Declarant no longer owns any
Condominiums or Lots in the Property, the following actions, before
being undertaken by the Association, shall first be approved in
writing by Declarant:
(a) Any amendment or action requiring the approval of
first Mortgagees pursuant to this Declaration, including without
limitation all amendments and action specified in Sections 13.2;
(b) The levy of a Capital Improvement Assessment for the
construction of new facilities not constructed on the Condominium
Common Area Module or the Association Property Module by Declarant;
or
(c) Subject to Section 5.4 regarding limitations on
Annual Assessment increases, any significant reduction of
Association maintenance or other services.
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ARTICLE XIV
14. Enforcement of Certain Bonded Obligations.
14.1. Consideration by Board of Directors.
If (1) the Condominium Common Area Module and Association Property
Module Improvements are not completed prior to the issuance of a
Final Subdivision Public Report by the DRE for the sale of
Condominiums and Lots in the Project, and (2) the Association is
obligee under a bond or other arrangement ("Bond") required by the
DRE to secure performance of the commitment of Declarant to
complete such Improvements, 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 such Improvement
for which a Notice of Completion has not been filed within sixty
(60) days after the completion date specified for that Improvement
in the Planned Construction Statement appended to the Bond. If the
Association has given an extension in writing for the completion of
any Condominium Common Area Module and Association Property
Module Improvement, the Board shall be directed to consider and
vote on the aforesaid question if a Notice of Completion has not
been filed, within thirty (30) days after the expiration of the
extension.
14.2. Consideration by the Members.
A special meeting of Members, for the purpose of voting to override
a decision by the Board not to initiate action to enforce the
obligations under the Bond or on the failure of the Board to
consider and vote on the question, shall be held no fewer than
thirty-five (35) days nor more than forty-five (45) days after
receipt by the Board of a petition for such a meeting signed by
Members representing five percent (5%) of the total voting power of
the Association. A vote of a majority of the voting power of the
Association residing in 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 this decision by initiating and pursuing appropriate
action in the name of the Association.
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ARTICLE XV
15. General Provisions.
15.1. Enforcement of Restrictions.
(a) Violations Identified by the Association. If the
Board determines that there is a violation of any provision of the
Restrictions, or the Architectural Committee determines that an
Improvement which is the maintenance responsibility of an Owner is
in need of installation, maintenance, repair, restoration or
painting, then the Board shall give written notice to the
responsible Owner identifying (i) the condition or violation
complained of, and (ii) the length of time the Owner has to remedy
the violation including, if applicable, the length of time the
Owner has to submit plans to the Architectural Committee and the
length of time the Owner has to complete the work proposed in the
plans submitted to the Architectural Committee.
If an Owner does not perform such corrective action as is
required by the Board and the Architectural Committee within the
allotted time, the Board, after Notice and Hearing, may undertake
to remedy such condition or violation complained of, and the cost
thereof shall be charged to the Owner as a Special Assessment.
Such Special Assessment shall be subject to enforcement and
collection by the Board in accordance with the procedures provided
for in this Declaration.
If the violation involves nonpayment of any type of
Assessment, then the Board shall be entitled to collect such
delinquent Assessment pursuant to the procedures set forth in
Article V.
(b) Violations Identified by an Owner. In the event that
an Owner alleges that another Owner, his family, guests or tenants,
is violating the Restrictions (other than nonpayment of any type of
Assessment), the Owner must first submit the matter to the Board
pursuant to the Notice and Hearing procedure established in the
Bylaws before the complaining Owner may resort to a court of law
for relief with respect to the alleged violation.
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(c) Legal Proceedings. Failure to comply with any of the
terms of the Restrictions by an Owner, his family, guests,
employees, invitees or tenants, shall be grounds for relief which
may include, without limitation, an action to recover sums due for
damages, injunctive relief, foreclosure of any lien, or any
combination thereof; provided, however, that the procedures
established in Sections 15.1(a) and (b) above must first be
followed, if they are applicable.
(d) Limitation on Expenditures. The Association shall not
incur litigation expenses, including without limitation attorneys'
fees, where the Association initiates legal proceedings or is
joined as a plaintiff in legal proceedings without the approval of
a majority of the voting power of the Association, excluding the
voting power of any Owner who would be a defendant in such
proceedings. Such approval shall not be necessary if the legal
proceedings are initiated to (i) enforce the use restrictions
contained in Article VIII hereof, (ii) enforce the architectural
control provisions contained in Article IV hereof, or (iii) collect
any unpaid assessments levied pursuant to this Declaration.
(e) Schedule of Fines. The Board may adopt a schedule of
reasonable fines or penalties which, in its reasonable discretion,
it may assess against an Owner for the failure of such Owner, or of
a resident of or visitor to such Owner's Unit or Residence on a Lot
to comply with any provisions of the Restrictions. Such fines or
penalties may only be assessed by the Board after Notice and
Hearing.
(f) No Waiver. Failure to enforce any provision hereof
shall not constitute a waiver of the right to enforce that
provision, or any other provision hereof.
(g) Right to Enforce. The Board, any Owner (not at the
time in default hereunder), or Declarant (so long as Declarant is
an Owner) shall be entitled to enforce the Restrictions as
described in this Article. Each Owner shall have a right of action
against the Association for the Association's failure to comply
with the Restrictions. Each remedy provided for in this
Declaration shall be cumulative and not exclusive or exhaustive.
CC&RS/CBE/
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(h) Attorneys Fees. Any judgment rendered in any action
or proceeding pursuant to this Declaration shall include a sum for
attorneys' fees in such amount as the court may deem reasonable, in
favor of the prevailing party, as well as the amount of any
delinquent payment, interest thereon, costs of collection and costs
of court.
15.2. Severability.
The provisions hereof shall be deemed independent and severable,
and a determination of invalidity or partial invalidity or
unenforceability of any one provision or portion hereof by a court
of competent jurisdiction shall not affect the validity or
enforceability of any other provision hereof.
15.3. Interpretation.
The provisions of this Declaration shall be liberally construed to
effectuate its purpose of creating a uniform plan for the creation
and operation of a residential condominium development and planned
development and for maintenance of the Condominium Common Area
Module and the Association Property Module and any violation of
this Declaration shall be deemed to be a nuisance. 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. As used herein, the singular shall
include the plural and the plural the singular; and the masculine,
feminine and neuter shall each include the other, unless the
context dictates otherwise.
15.4. Mergers or Consolidations.
Upon a merger or consolidation of the Association with another
association, its properties, rights and obligations may, by
operation of law, be transferred to another surviving or
consolidated association or, alternatively, the properties, rights
and obligations of another association may, by operation of law, be
added to the properties, rights and obligations of the Association
as a surviving corporation pursuant to a merger. The surviving or
consolidated association may administer and enforce the covenants,
conditions and restrictions established by this Declaration
governing the Property, together with the covenants and
restrictions established upon any other property, as one plan.
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15.5. Use of Recreational Facilities.
The Board of Directors shall have the right to limit the number of
guests that an Owner or such Owner's tenant may permit to use the
open parking and recreational facilities on the Condominium
Common Area Module and the Association Property Module. The
Board shall have the right to set further reasonable restrictions
on the time and manner of use of said parking areas and
recreational facilities, in accordance with the Rules and
Regulations, including, without limitation, Rules and Regulations
restricting or prohibiting the use of all or designated portions of
the Property recreational facilities by minors, guests of an Owner
or his tenants.
15.6. No Public Right or Dedication.
Nothing contained in this Declaration shall be deemed to be a gift
or dedication of all or any part of the Property to the public, or
for any public use.
15.7. Nonliability and Indemnification.
(a) General Limitation. Except as specifically provided
in the Restrictions or as required by law, no right, power, or
responsibility conferred on the Board or the Architectural
Committee by this Declaration, the Articles or the Bylaws shall be
construed as a duty, obligation or disability charged upon the
Board, the Architectural Committee, any member of the Board or of
the Architectural Committee, or any other officer, employee or
agent of the Association. No such Person shall be liable to any
party (other than the Association or a party claiming in the name
of the Association) for injuries or damage resulting from such
Person's acts or omissions within what such Person reasonably
believed to be the scope of his Association duties ("Official
Acts"), except to the extent that such injuries or damage result
from such Person's willful or malicious misconduct. No such Person
shall be liable to the Association (or to any party claiming in the
name of the Association) for injuries or damage resulting from such
Person's Official Acts, except to the extent that such injuries or
damage result from such Person's negligence or willful or malicious
misconduct.
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(b) Damages Limitation. In accordance with Civil Code
Section 1365.7, a volunteer Board member or volunteer Association
officer, as defined in subdivision (a) of Civil Code Section 1351,
who is a tenant of a separate interest in the common interest
development or is an Owner of no more than two (2) separate
interests in the common interest development and which manages a
common interest development which is exclusively residential, shall
not be personally liable in excess of the coverage of insurance
specified below to any person who suffers injury, including without
limitation bodily injury, emotional distress, wrongful death or
property damage or loss as a result of the tortious act or omission
of the volunteer officer or Board member if all of the following
conditions are satisfied:
(1) The Board member or officer is a tenant of a
Unit, a Residence on a Lot or an Owner of no more than two (2)
Units or Lots;
(2) The act or omission was performed within the
scope of the Board member's or officer's Association duties;
(3) The act or omission was performed in good faith;
(4) The act or omission was not willful, wanton or
grossly negligent; and
(5) The Association maintained and had in effect at
the time the act or omission occurred and at the time a claim was
made one (1) or more policies of insurance which shall include
coverage for (A) general liability of the Association and (B)
individual liability of officers and Board members for negligent
acts or omissions in that capacity; provided, that both types of
coverage are in the amount of at least five hundred thousand
dollars ($500,000.00) if the common interest development consists
of 100 or fewer separate interests or at least one million dollars
($1,000,000.00) if the common interest development consists of more
than 100 separate interests.
CC&RS/CBE/
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A Board member or Association officer who at the time of
the act or omission was the Declarant or received direct or
indirect compensation as an employee from Declarant or from a
financial institution that purchased a Condominium or a Lot at a
judicial or nonjudicial foreclosure of a Mortgage is not a
volunteer for purposes of this Section 15. 7 (b) . The payment of
actual expenses incurred by a Board member or Association officer
does not affect the member's or officer's status as a volunteer for
purposes of this Section 15. 7 (b).
(c) Indemnification. The Association shall pay all
expenses incurred by, and satisfy any judgment or fine levied
against, any person as a result of any action or threatened action
against such person to impose liability on such person for his
Official Acts, provided that:
(1) The Board determines that such person acted in
good faith and in a manner such person reasonably believed to be in
the best interests of the Association;
(2) In the case of a criminal proceeding, the Board
determines that such person had no reasonable cause to believe his
conduct was unlawful; and
(3) In the case of an action or threatened action by
or in the right of the Association, the Board determines that such
person acted with such care, including reasonable inquiry, as an
ordinarily prudent person in a like position would use under
similar circumstances.
Any determination of the Board required under this
Section 15. 7 (c) must be approved by a majority vote of a quorum
consisting of Directors who are not parties to the action or
threatened action giving rise to the indemnification. If the Board
fails or refuses to make any such determination, such determination
may be made by the vote or written consent of a majority of a
quorum of the Members of the Association voting at a meeting of the
Association called for such purpose, provided that the person to be
indemnified shall not be entitled to vote. Payments made hereunder
shall include amounts paid and expenses incurred in settling any
such action or threatened action. This Section 15. 7 (c) shall be
construed to authorize payments and indemnification to the fullest
CC&RS/CBE/
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extent now or hereafter permitted by applicable law. The
entitlement to indemnification hereunder shall inure to the benefit
of the estate, executor, administrator, heirs, legatees, or
devisees of any person entitled to such indemnification.
15.8. Notices.
Except as otherwise provided in this Declaration, notice to be
given to an Owner shall be in writing and may be delivered
personally to the Owner. Personal delivery of such notice to one
or more co-owners of a Condominium or a Lot or to any general
partner of a partnership owning a Condominium or a Lot shall be
deemed delivery to all co-owners or to the partnership, as the case
may be. Personal delivery of such notice to any officer or agent
for the service of process on a corporation shall be deemed
delivery to the corporation. In lieu of the foregoing, such notice
may be delivered by regular United States mail, postage prepaid,
addressed to the Owner at the most recent address furnished by such
Owner to the Association or, if no such address shall have been
furnished, to the street address of such Owner's Unit. Such notice
shall be deemed delivered three (3) business days after the time of
such mailing, except for notice of a meeting of Members or of the
Board of Directors in which case the notice provisions of the
Bylaws shall control. Any notice to be given to the Association
may be delivered personally to any member of the Board, or sent by
United States mail, postage prepaid, addressed to the Association
at such address as shall be fixed from time to time and circulated
to all Owners.
15.9. Priorities and Inconsistencies.
If there are conflicts or inconsistencies between this Declaration
and either the Articles of Incorporation or the Bylaws of the
Association, the terms and provisions of this Declaration shall
prevail.
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15.10. Constructive Notice and Acceptance.
Every person who owns, occupies or acquires any right, title
estate or interest in or to any Condominium or other portion of -the
Property does hereby consent and agree, and shall be conclusively
deemed to have consented and agreed, to every limitation,
restriction, easement, reservation, condition and contained
contained herein, whether or not any reference to these
restrictions is contained in the instrument by which such person
acquired an interest in the Property, or any portion thereof.
15.11. Declarant's Right to Cure Alleged Defects.
It is Declarant's intent that the Condominium Common Area Module,
the Association Property Module, the Residences on the Lots, the
Units, and the Improvements be built in compliance with all
applicable building codes and ordinances and that they be of a
quality that is consistent with good construction practices for
production housing of this type. Nevertheless, due to the complex
nature of construction and the subjectivity involved in evaluating
such quality, disputes may arise as to whether a defect in
construction exists and Declarant's responsibility therefor. It is
Declarant's intent to resolve all disputes and claims regarding
"Alleged Defects" (as defined below) in any portion of the
Condominium Common Area Module, the Association Property Module,
the Residences on the Lots, the Units, and the Improvements,
amicably, and without the necessity of time consuming and costly
litigation. Accordingly, the Association, and all Owners shall be
bound by the following claim resolution procedure:
(a) Declarant's Right to Cure. If the Association or any
Owner or Owners (collectively "Claimant") claim, contend or allege
that any portion of the Condominium Common Area Module, the
Association Property Module, the Residences on the Lots, the
Units, and/or any Improvements are defective or that Declarant or
its agents consultants, contractors or subcontractors were
negligent in the planning, design, engineering, grading, or
construction thereof (collectively, an "Alleged Defect"), Declarant
is hereby granted the irrevocable right to inspect, repair, and/or
replace such Alleged Defect as set forth herein.
CC&RS/CBE/
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(b) Notice to Declarant. In the event that a Claimant
discovers any Alleged Defect, Claimant shall, within a reasonable
time after discovery, notify Declarant, in writing, at 2171 El
Camino Real, Suite 202, Carlsbad, CA 92054 or such other address at
which Declarant maintains its principal place of business, of the
specific nature of such Alleged Defects ("Notice of Alleged
Defect").
(c) Right to Enter, Inspect. Repair, and/or Replace.
Within a reasonable time after the receipt by Declarant of a Notice
of Alleged Defect or the independent discovery of any Alleged
Defect by Declarant, Declarant shall have the irrevocable right
upon reasonable notice to Claimant and during normal business
hours, to enter onto or into, as applicable, the Condominium Common
Area Module, the Association Property Module, the Residences on the
Lots, the Units, and/or any Improvements for the purposes of
inspecting and, if deemed necessary by Declarant, repairing and/or
replacing such Alleged Defect. In conducting such inspection,
repairs and/or replacement Declarant shall be entitled to take any
actions as it shall deem reasonable and necessary under the
circumstances.
(d) No Additional Obligations. Nothing set forth in
Section 15.11 shall be construed to impose any obligation on
Declarant to inspect, repair or replace any items or Alleged Defect
for which Declarant is not otherwise obligated under applicable
state and federal law or any limited warranty provided by Declarant
in connection with the sale of the Units and/or Residences on
Lots. Notwithstanding any other provision of this Declaration,
this Section 15.11 shall not be amended without the prior written
approval of Declarant.
15.12. Arbitration of Alleged Defect Claims.
(a) In the event the Claimant, as defined in Section
15.11, and the Declarant are unable to reach an agreement with
regard to the repair and/or replacement of an Alleged Defect, the
Claimant must agree to submit the matter to arbitration.
(b) In accordance with the requirements of the
California Department of Real Estate, the arbitration will be
conducted in accordance with the following rules and procedures:
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(1) The Declarant shall advance the fees necessary
to initiate the arbitration, with the costs and fees, including
ongoing costs and fees to be paid as agreed by the parties.
(2) For administration of the arbitration by a
neutral and impartial person(s);
(3) For the appointment of a neutral and impartial
individual(s) to serve as arbitrator(s), with the arbitrator(s) to
be appointed within a specified period of time, which in no event
shall be more than sixty (60) days from the administrator's receipt
of a written request from a party to arbitrate the claim or
dispute. In selecting the arbitrator, the provisions of Section
1297.121 of the Code of Civil Procedure shall apply. An arbitrator
may be challenged for any of the grounds listed therein;
(4) For the venue of the arbitration to be in the
county where the subdivision is located unless the parties agree to
some other location;
(5) For the prompt and timely commencement of the
arbitration in accordance with (i) the rules of the arbitration, or
if the rules do not specify a date by which the arbitration must
commence, then (ii) a date as agreed to by the parties, and if they
cannot agree, (iii) a date determined by the arbitrator(s);
(6) For the arbitration to be conducted in
accordance with the rules and procedures which are reasonable and
fair to the parties;
(7) For the prompt and timely conclusion of the
arbitration;
(8) For the arbitrators to be authorized to provide
all recognized remedies available in law or equity, other than
punitive damages, for any cause of action that is the basis of the
arbitration.
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(c) In the event the Claimant and the Declarant select
an arbitrator who elects to conduct the arbitration in accordance
with the rules and procedures that are equivalent in substance to
the commercial arbitration rules of the American Arbitration
Association, or other similarly recognized regional or statewide
entity which regularly provides arbitration services, such as
JAMS/ENDISPUTE, the Claimant and Declarant shall be deemed in
compliance with the requirements set forth in paragraph (b) of this
Section 15.12, provided the agreed rules and procedures for the
arbitration contain provisions substantially complying with
paragraph (b), subparagraphs (1)-(8), inclusive, of this Section
15.12.
(d) Since the Declarant has not submitted a copy of the
rules to be applicable to an arbitration subject to the
requirements of paragraph (b) herein as part of Declarant's
application for a public report, in accordance with the
requirements of the California Department of Real Estate, Claimant
and the Declarant shall therefore select an arbitrator who elects
to conduct the arbitration in accordance with the rules and
procedures that are equivalent in substance to the commercial
arbitration rules of the American Arbitration Association, or other
similarly recognized regional or statewide entity which regularly
provides arbitration services, such as JAMS/ENDISPUTE.
(e) An arbitration conducted pursuant to this Section
15.12 shall be subject to the reference requirements set forth in
Code of Civil Procedure Sections 638 through 645.1, inclusive.
(f) In the event of any conflict between the foregoing
requirements and the California Civil Code and/or the Code of
Civil Procedure, the Civil Code and/or the Code of Civil Procedure
shall apply.
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15.13. No Representations or Warranties.
No representations or warranties of any kind, express or implied,
have been given or made by Declarant, or its agents or employees in
connection with the Property, or any portion thereof, its physical
condition, zoning, compliance with applicable laws, fitness for
intended use, or in connection with the subdivision, sale
operation, maintenance, cost of maintenance, taxes or regulation
thereof as a condominium project and planned development, except as
specifically and expressly set forth in this Declaration and except
as may be filed by Declarant from time to time with the ORE.
ARTICLE XVI
16. Annual Inspection.
16.1. Duty to Inspect.
It shall be the duty of the Board to have the Condominium Common
Area Module and the Association Property Module inspected at least
once each year.
16.2. Purpose of Inspection.
The purpose of the inspection shall be to (i) determine whether the
Condominium Common Area Module and the Association Property Module
are being maintained adequately in accordance with the standards of
maintenance established in Section 2.7 hereof, (ii) identify the
condition of the Condominium Common Area Module and the Association
Property Module and any Improvements thereon including the
existence of any hazards or defects, and the need for performing
additional maintenance, refurbishment, replacement, or repair, and
(iii) recommend preventive actions which may be taken to reduce
potential maintenance costs to be incurred in the future.
16.3. Scope of Inspection.
All of the Condominium Common Area Module and the Association
Property Module and Improvements thereon shall be inspected.
16.4. Experts and Consultants.
The Board may employ such experts and consultants as are necessary
to perform the inspection and make the report required by this
Article.
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16.5. Report to Owners.
The Board shall have a report of the results of the inspection of
the Condominium Common Area Module and the Association Property
Module required by this Article prepared. The report shall be
furnished to Owners within the time set forth for furnishing Owners
with the Budget. The report shall include at least the following:
(a) a description of the condition of the
Condominium Common Area Module and the Association Property
Module, including a list of items inspected, and the status of
maintenance, repair and need for replacement of all such items;
(b) a description of all maintenance, repair and
replacement planned for the ensuing fiscal year included in the
Budget;
(c) if any maintenance, repair or replacement is to be
deferred, the reason for such deferral;
(d) a summary of all reports of inspections performed by
any expert or consultant employed by the Board to perform
inspections ,-
(e) a report of the status of compliance with the
maintenance, replacement and repair needs set forth in the
inspection report for preceding years; and
(f) such other matters as the Board deems appropriate.
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ARTICLE XVII
17 . Alternative Dispute Resolution.
17.1. Responsibilities of Owner(s); Association.
Each Owner of a Condominium, a Lot, and the Association shall
comply with the Alternative Dispute Resolution requirements set
forth in Civil Code Section 1354 prior to filing of a civil action.
In accordance with Civil Code Section 1354 (i) members shall be
provided, either at the time the pro forma budget required by Civil
Code Section 1365 is distributed or in the manner specified in
Section 5016 of the Corporations Code, with a summary of the
provisions of Civil Code Section 1354 which includes the following
language: "Failure by any member of the Association to comply with
the prefiling requirements of Section 1354 of the Civil Code may
result in the loss of your rights to sue the Association or another
member of the Association regarding enforcement of the governing
documents."
17.2. Role of Board of Directors. The Board of
Directors of the Association is hereby authorized, but not
required, to perform any act reasonably necessary to resolve any
civil claim or action through alternative dispute resolution
proceedings such as mediation, binding arbitration, or non-binding
arbitration proceedings. The Board of Directors of the Association
is further hereby authorized, but not required to, perform the
following acts:
(a) Providing, or in good faith attempting to provide,
one hundred twenty (120) days advance notice of the Board of
Director's intent to initiate the prosecution of any civil action
and of the nature and basis of the claim to every member of the
Association and every entity or person who is a prospective party
to the civil action, provided that notice can be given (i) more
than one hundred twenty (120) days prior to the expiration of any
pertinent statute of limitations, and (b) without prejudice to the
Association's right to enforce the governing documents, and further
provided that no such notice need be given prior to filing of an
action in small claims court or an action solely to enforce
assessment obligations.
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(b) Prior to initiating the prosecution of a civil
action solely for declaratory relief or injunctive relief to
enforce the governing documents, or for declaratory relief or
injunctive relief to enforce the governing documents in conjunction
with a claim for monetary damages not in excess of five thousand
dollars ($5,000.00), to endeavor to submit the matter to
alternative dispute resolution in compliance with the provisions of
Section 1354 (b) of the Civil Code.
(c) Immediately after initiating the prosecution or
defense of any civil action, making a reasonable effort, in good
faith, to meet and confer with every person who is a party
concerning appropriate processes for resolving the civil action,
including available alternative dispute resolution proceedings;
concerning appropriate processes for avoiding or reducing costs or
losses to the parties associated with the action; providing the
opportunity to cure any alleged defect in common areas or
facilities which is the basis for the action; and providing the
scope of discovery, if any, to be conducted prior to the inception
of any alternative dispute resolution procedure.
(d) Considering diversion of the prosecution or defense
of any civil action to alternative dispute resolution proceedings
such as mediation, non-binding arbitration, or binding arbitration.
(e) Agreeing to participate and participating fully and
in good faith in the resolution of any civil action through any
alternative dispute resolution proceedings, including but not
limited to mediation, non-binding arbitration, and binding
arbitration, and paying costs reasonably incurred by the
Association on account of those alternative dispute resolution
proceedings.
In accordance with Section 2792.21 (d) of Title 10, California Code
of Regulations, no portion of the governing instruments shall
require the Board of Directors to do any of the following:
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(a) As a prerequisite to initiating any civil action, to
conduct inspections, maintain inspection records, exhaust
applicable casualty insurance coverage maintained by the
Association, provide an opportunity to cure, meet with members, or
obtain the consent of the members.
(b) Except in compliance with the provisions of Section
1354 (b) of the Civil Code, to submit civil claims of any kind to
binding or non-binding alternative dispute resolution procedures.
ARTICLE XVIII
18. Organizational Documentation.
18.1. Role of Declarant. In accordance with Section
2792.23 of Title 10, California Code of Regulations, the Declarant
will, not later than ninety (90) days after the first Close of
Escrow, deliver a copy of the following documents to the Board of
Directors of the Association at the office of the Association or at
such other place as the Board of Directors shall prescribe. The
obligation to deliver the following documents shall apply to any
document obtained by the Declarant no matter when obtained,
provided however, such obligation shall terminate upon the earlier
of: (1) conveyance of the last Unit or Lot covered by a subdivision
public report or (2) three (3) years after the expiration of the
most recent public report on the Project. The following documents
are:
(a) The recorded subdivision map or maps for the
Project.
(b) The recorded Condominium Plan, if any, and all
amendments thereto.
(c) The deeds and easements executed by the Declarant
conveying the Association Property Module, or other interest to
the Association, to the extent applicable.
(d) The recorded Declaration of Covenants, Conditions,
and Restrictions for the Project, including all amendments and
annexations thereto.
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(e) The Association's filed Articles of Incorporation,
if any, and all amendments thereto.
(f) The Association's Bylaws and all amendments thereto.
(g) All architectural guidelines and all other rules
regulating the use of the Owner's interest in the Project or
of the Condominium Common Area Module or the Association Property
Module which have been promulgated by the Association.
(h) The plans approved by the local agency or city
where the project is located for the construction or improvement of
facilities that the Association is obligated to maintain or repair;
provided, however, that the plans need not be as-built plans and
that the plans may bear appropriate restrictions on their
commercial exploitation or use and may contain appropriate
disclaimers regarding their accuracy.
(i) All Notice of Completion Certificates issued
Condominium Common Area Module and Association Property Module
improvements (other than residential structures).
(j) Any bond or security device in which the Association
is the beneficiary.
(k) Any written warranty being transferred to the
Association for Condominium Common Area Module and Association
Property Module equipment, fixtures, or improvements.
(1) Any insurance policy procured for the benefit of the
Association, its governing board or the Condominium Common Area
Module and/or the Association Property Module.
(m) Any lease or contract to which the Association is a
party.
(n) The membership register, including mailing addresses
and telephone numbers, books of account and minutes of meetings of
the members, of the Board of Directors and of committees of the
Board of Directors.
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(0) Any instrument referred to in Business and
Professions Code Section 11018.6 (d) but not described above which
establishes or defines the common, mutual or reciprocal rights or
responsibilities of members of the Association.
ARTICLE XIX
19. Causes of Action in Tort.
19.1. Lawsuits Against the Association.
In accordance with Civil Code Section 1365.9, any cause of action
in tort against any owner of a separate interest arising solely by
reason of an ownership interest as tenant in common in the Common
Area of a Common Interest Development shall be brought only against
the Association and not against the individual owners of the
Separate Interests, as defined in Civil Code Section 1351 (1), if
both of the insurance requirements in paragraphs (1) and (2) are
met:
(1) The Association maintained and has in effect for
this cause of action one or more policies of insurance which
include coverage for general liability of the Association and (2)
the coverage described in paragraph (1) is in the following minimum
amounts:
(i) At least two million dollars ($2,000.000.00) if the
Common Interest Development consists of one hundred (100) or fewer
Separate Interests; or
(ii) At least three million dollars ($3,000,000.00) if
the Common Interest Development consists of more than one hundred
(100) Separate Interests.
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ARTICLE XX
20. Documentation to be provided Prospective Purchaser.
20.1. Owner Requirements of Civil Code Section 1368.
In accordance with Civil Code Section 1368, the Owner of a Separate
Interest, other than an Owner subject to the requirements of
Section 11018.6 of the Business and Professions Code, shall, as
soon as practicable before transfer of title to the Separate
Interest or execution of a real property sales contract therefor,
as defined in Civil Code Section 2985, provide the following to the
prospective purchaser:
(1) a copy of the governing documents of the common
interest development.
(2) If there is a restriction in the Restrictions
limiting the occupancy, residency, or use of a separate interest on
the basis of age in a manner different from that provided in Civil
Code Section 51.3, a statement that the restriction is only
enforceable to the extent permitted by Civil Code Section 51.3 and
a statement specifying the applicable provision of Civil Code
Section 51.3.
(3) A copy of the most recent documents distributed
pursuant to Civil Code Section 1365.
(4) A true statement in writing from an authorized
representative of the Association as to the amount of the
Association's current regular and special assessments and fees, as
well as any assessments levied upon an Owner's interest in the
common interest development which are unpaid on the date of the
statement. The statement shall also include true information on
late charges, interest, and costs of collection which, as of the
statement, are or may be made a lien upon the Owner's interest in
a common interest development pursuant to Civil Code Section 1367.
(5) Any change in the Association's current regular and
special assessments and fees which have been approved by the
Association's Board of Directors, but have not become due and
payable as of the date disclosure is provided pursuant to this
Article.
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20.2 Association Requirements of Civil Code Section
1368.
In accordance with Civil Code Section 1368, upon written request,
the Association shall, within ten (10) days of the mailing or
delivery of the request, provide the Owner of a Separate Interest
with a copy of the requested items specified in paragraphs 20.1
(1), (2) , (3), and (4) . The Association may charge a fee for this
service, which shall not exceed the Association's reasonable cost
to prepare and reproduce the requested items. The Association
shall not impose or collect any assessment, penalty, or fee in
connection with a transfer of title or any other interest except
the Association's actual costs to change its records and that
authorized by this Section 20.2.
20.3. Failure to comply with Article XX.
Any person or entity who willfully violates this Article XX, in
accordance with Civil Code Section 1368, shall be liable to the
purchaser of a separate interest which is subject to Civil Code
Section 1368, for actual damages occasioned thereby and, in
addition, shall pay a civil penalty in an amount not to exceed five
hundred ($500.00). In an action to enforce this liability, the
prevailing party shall be awarded reasonable attorney's fees.
20.4 Validity of Transfer.
Nothing in this Article XX affects the validity of title to real
property transferred in violation of this Article XX.
20.5. Additional Owner Requirements.
In addition to this requirements of this section, an Owner
transferring title to a separate interest shall comply with
applicable requirements of Civil Code Sections 1133 and 1134.
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ARTICLE XXI
21. Civil Code Section 1375.
21.1. Review of Civil Code Section 1375.
Before the Association commences an action for damages against the
Declarant of the project, based upon a claim for defects in the
design or construction of the Project, the Board of Directors shall
review, with counsel, the procedure set forth in Civil Code Section
1375.
ARTICLE XXII
22. Managing Agent.
22.1. Written Disclosures of Prospective Managing Agent.
In accordance with Civil Code Section 1363.1, a prospective
management agent of a common interest development shall provide a
written statement to the Board of Directors of the Association of
a common interest development as soon as practicable, but in no
event more than ninety (90) days, before entering into a management
agreement which shall contain all of the following information
concerning the managing agent:
(1) The names and business addresses of the owners or
general partners of the managing agent. If the managing agent is
a corporation, the written statement shall include the names and
business addresses of the directors and officers and shareholders
holding greater than ten percent (10%) of the shares of the
corporation.
(2) Whether or not any relevant licenses such as
architectural design, construction, engineering, real estate, or
accounting have been issued by the State of California and are
currently held by the persons specified in paragraph (1). If, a
license is currently held by any of those persons, the statement
shall contain the following information:
(A) What license is held.
(B) The status of that license.
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(C) The name of the licensee appearing on that
license.
(3) Whether or not any relevant professional
certifications or designations such as architectural design,
construction, engineering, real property management, or accounting
are currently held by any of the persons specified in paragraph
(1), including, but not limited to, certified property manager or
professional association manager. If any certification or
designation is held, the statement shall include the following
information;
(A) What the certification or designation is and
what entity issued it.
(B) The status of that certification or
designation.
(C) The names in which the certification or
designation is held.
22.2. Definition of "managing agent".
As used in Civil Code Section 1363.1, a "managing agent" is a
person or entity, who for compensation or, in expectation of
compensation, exercises control over the assets of a common
interest development. A "managing agent" does not include any of
the following:
(1) A full-time employee of the Association.
(2) Any regulated financial institution operating within
the normal course of its regulated business.
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22.3. Handling of Association Funds by Managing Agent.
A managing agent of a common interest development who accepts or
receives funds belonging to the Association shall deposit all such
funds that are not placed into an escrow account with a bank,
savings association, or credit union or into an account under the
control of the Association, into a trust fund account maintained by
the managing agent in a bank, savings association, or credit union
in California. All funds deposited by the managing agent in the
trust fund account shall be kept in California in a financial
institution, as defined in Section 31041 of the Financial Code
which is issued by the federal government, and shall be maintained
there until disbursed in accordance with written instructions from
the Association entitled to the funds.
(a) At the written request of the Board of Directors of
the Association, the funds the managing agent accepts or receives
on behalf of the Association shall be deposited into an interest-
bearing account in a bank, savings association, or credit union in
California, provided all of the following requirements are met:
(1) The account is in the name of the managing agent as
trustee for the Association or in the name of the Association.
(2) All of the funds in the account are covered by
insurance provided by an agency of the federal government.
(3) The funds in the account are kept separate,
distinct, and apart from the funds belonging to the managing agent
or to any other person or entity for whom the managing agent holds
funds in trust except that the funds of various Associations may be
commingled as pursuant to paragraph (c) hereafter.
(4) The managing agent discloses to the Board of
Directors of the Association the nature of the account, how
interest will be calculated and paid, whether service charges will
be paid to the depository and by whom, and any notice requirements
or penalties for withdrawal of funds from the account.
(5) No interest earned on funds in the account shall
inure directly or indirectly to the benefit of the managing agent
or his or her employees.
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(b) The managing agent shall maintain a separate record
of the receipt and disposition of all funds described in this
section, including any interest earned on the funds.
(c) The managing agent shall not commingle the funds of
the Association with his or her own money or with the money of
others that he or she receives or accepts, unless all of the
following requirements are met:
(1) The managing agent commingled the funds of various
Associations on or before February 26, 1990, and has obtained a
written agreement with the Board of Directors of each Association
that he or she will maintain a fidelity and surety bond in an
amount that provides adequate protection to the Associations as
agreed upon by the managing agent and the Board of Directors of
each Association.
(2) The managing agent discloses in the written
agreement whether he or she is deriving benefits from the
commingled account or the bank, credit union, or savings
institution where the moneys will be on deposit.
(3) The written agreement provided for pursuant to this
Article includes, but is not limited to, the name and address of
the bonding companies, the amounts of the bonds, and the expiration
dates of the bonds.
(4) If there are any changes in the bond coverage or the
companies providing the coverage, the managing agent discloses the
fact to the Board of Directors of each affected Association as soon
as practical, but in no event more than ten (10) days after the
change.
(5) The bonds assure the protection of the Association
and provide the Association at least ten (10) days notice prior to
cancellation.
(6) Completed payments on behalf of the Association are
deposited within twenty-four (24) hours or the next business day
and do not remain commingled for more than ten (10) calendar days.
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(d) The prevailing party in an action to enforce this
Article shall be entitled to recover reasonable legal fees and
court costs.
(e) As used in this Article, a "managing agent" is a
person or entity, who for compensation or, in expectation of
compensation, exercises control over the assets of the Association.
However, a "managing agent" does not include a full-time employees
of the Association or a regulated financial institution operating
within the normal course of business, or an attorney at law acting
within the scope of his or her license.
(f) As used in this Article, "completed payment" means
funds received which clearly identify the account to which the
funds are to be credited.
ARTICLE XXIII
23. Requirements of the City of Carlsbad.
23.1. Conditions of Approval of Carlsbad Beach Estates.
In accordance with the conditions of approval of the Project the
City of Carlsbad ("City") has required that the following
language be included in this Declaration. For the purposes of
this Article 23, Condominium Common Area Module and Association
Property Module shall be referred to as "Common Area".
23.2. General Enforcement by the City.
The City shall have the right, but not the obligation, to enforce
those Protective Covenants set forth in this Declaration in favor
of, or in which the City has an interest.
23.3. Notice and Amendment.
A copy of any proposed amendment shall be provided to the City in
advance. If the proposed amendment affects the City, City shall
have the right to disapprove. A copy of the final approved
amendment shall be transmitted to City within 30 days for the
official record.
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23.4. Failure of Association to Maintain Common
Area Lots and Easements.
In the event that the Association fails to maintain the
"Common Area Lots and/or the Association Easements" as provided
in Article III, Section 3.1, the City shall have the right, but
not the duty, to perform the necessary maintenance. If the City
elects to perform such maintenance, the City shall give written
notice to the Association, with a copy thereof to the Owners in
the Project, setting forth with particularity the maintenance
the City finds to be required and requesting the same be carried
out by the Association by the Association within a period of
thirty (30) days from the giving of such notice. In the event that
the Association fails to carry out such maintenance of the Common
Area Lots and/or Association/s easements within the period
specified by the City's notice, the City shall be entitled to
cause such work to be completed and shall be entitled to
reimbursement with respect thereto from the Owners as provided
herein.
23.5. Special Assessments Levied by the City.
In the event the City has performed the necessary maintenance to
either the Common Area Lots and/or Association's Easements,
the City shall submit a written invoice to the Association for
all costs incurred by the City to perform such maintenance of
the Common Area Lots or Association Easements. The City shall
provide a copy of such invoice to each Owner in the Project,
together with a statement that if the Association fails to pay
such invoice in full within the time specified, the City will
pursue collection against the Owners in the Project pursuant to
the provisions of this Section. Said invoice shall be due and
payable by the Association within twenty (20) days of receipt by
the Association. If the Association shall fail to pay such
invoice in full within the period specified, payment shall be
deemed delinquent and shall be subject to a late charge in an
amount equal to six percent (6%) of the amount of the invoice.
Thereafter the City may pursue collection from the Association
by means of any remedies available at law or in equity.
Without limiting the generality of the foregoing, in addition
to all other rights and remedies available to the City, the
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City may levy a special assessment against the Owners of each
Lot in the Project for an equal prorata shall of the invoice,
plus the late charge. Such special assessment shall constitute a
constitute a charge on the land and shall be a continuing lien
upon each Lot against which the special assessment is levied.
Each Owner in the Project hereby vests the City with the right and
power to levy such special assessment, to impose a lien upon
their respective Lot and to bring all legal actions and/or to
pursue lien foreclosure procedures against any Owner and his/her
respective Lot for purposes of collecting such special assessment
in accordance with the procedures set forth in Article V, Section
5.7 of this Declaration.
23.6. Sight Distance Corridor Encroachment.
No structure, fence, wall, tree, shrub, sign, or other
object over 30 inches above the street level may be placed
or permitted to encroach within the area identified as a
sight distance corridor in accordance with City Standard
Public Street-Design Criteria, Section 8.B.3. The underlying
property owner shall maintain this condition. Due to project
constraints, the installation of a fire hydrant will be
permitted in this area only.
23.7. National Pollutant Discharge Elimination
System (NPDES) permit.
The Declarant hereby notifies prospective owners and tenants of the
following:
A. All owners and tenants shall coordinate efforts
to establish or work with established disposal programs to
remove and properly dispose of toxic and hazardous waste
disposal products.
B. Toxic chemicals or hydrocarbons such as gasoline,
motor oil, antifreeze, solvents, paints, paint thinners, wood
preservatives, and other such fluids shall not be discharged into
any street, public or private, or into storm drain or storm water
conveyance systems. Use and disposal of pesticides, fungicides,
herbicides, insecticides, fertilizers, and other such chemical
treatments shall meet Federal, State, County and City requirements
as prescribed in their respective containers.
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C. Best Management Practices shall be used to
eliminate or reduce surface pollutants when planning any changes
to the landscaping and surface improvements.
23.8 Prohibition on Parking.
The Association shall prohibit, at all times, parking on the
private drive, as shown and described on the recorded Condominium
Plan as the Condominium Area Module, which serves the project.
23.9. Landscape Maintenance Responsibilities.
The Owners of the Condominiums, subject to this Declaration, shall
maintain the landscaped portion of the Condominium Common
Area Module. The Owners of Lots and the Owners of Condominiums,
subject to this Declaration, shall maintain the landscaped portion
of the Association Property Module. The Owners of the Lots subject
to this Declaration, shall be responsible for the maintenance of
the landscaping on each Lot.
23.10. Balconies, trellises and decks. Each Owner of
a Condominium shall be responsible for the maintenance of any
balcony, trellis, and/or deck which is part of the Residence.
Each Owner of a Lot shall be responsible for the maintenance of
any balcony, trellis, and/or deck which is part of the Residence.
23.11. Prohibition on additional decks, balconies or
patios. No decks, balconies, or patios other than those shown on
the approved plans are allowed in this project without the prior
approval of a PUD/CP Amendment.
23.12. Prohibition on room additions.
No room additions are allowed in this project without the prior
approval of a PUD/CP Amendment.
23.13. Prohibition on Replacement or Remodeling of
Structure. No replacement or remodeling of the existing
single-family structure (currently addressed as 265 Chinquapin
Avenue) being retained on the project site are allowed without
the prior approval of a PUD/CP Amendment, and any new or
remodeled structure must comply with all applicable PUD/CP
standards in place at the time of such replacement or remodeling.
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ARTICLE XXIV
24. Cost Center.
24.1. Definition of Terms.
The term "cost center" for the purpose of this Article XXIV
refers to common facilities or services provided by the
Association which directly confer a special benefit on some
but not all the units within a common interest development,
and which-are to be wholly or primarily financed through the
use of regular assessments on the benefited units. The term
"cost center budget" for the purpose of this Article XXIV
refers to the elements of an association budget which are
associated with cost center facilities and services to be assessed
against benefited units. The term "based budget" for the
purpose of this Article XXIV refers to the elements of the
Association budget which itemize the cost components to be
shared by all the members of the Association.
24.2. Authorization.
The Association is hereby authorized to establish a cost center
for collection of refuse from the Condominiums and for the
maintenance of the asphalt in the front of the Condominiums. In
addition, the Association is hereby authorized to assess the
costs of the common facilities or services on a special area or
district (i.e. "cost center") and include the costs as a part of
the annual assessment to be paid by the Condominiums in the
Project.
CC&RS/CBE/
10/5/2000
24.3. Amendment of Provisions.
The Association may amend this Article XXIV with the approval of
the Owners of the Condominiums in the Project, through the use of
a cost center budget, and with the approval of the Owners of Lots
in the Project where required by law.
24.4. Prohibition on Commingling.
Based on acceptable accounting practices, commingling of cost
center funds with the general fund of the Association is hereby
prohibited, except where specifically authorized by law.
24.5. Prohibition on use of Cost Center funds.
The Association is hereby prohibited from the use of cost center
funds for "general association purposes". In the event the
Association uses cost center funds for any other purpose than
as provided in this Article XXIV, the Association shall provide
each of the Owners in the project with documentation and disclosure
of such uses. The Association shall, within a reasonable time
period, replenish cost center funds used for any other purpose
that as provided in this Article XXIV.
24.6. Accounting/Annual Review and Disclosure.
The Association shall conduct a separate accounting for the
funds that are collected and expended on behalf of the cost
center. The Association shall also conduct an annual review
and disclosure of the cost center reserves and reserve study.
CC&RS/CBE/
10/5/2000
ARTICLE XXV
25. Maintenance of Condominiums.
25.1. Common Roof and Common Foundation Systems.
Each of the Condominiums in Carlsbad Beach Estates have
"common roof systems" and "common foundation systems" (hereafter
referred to as a "Common Structure" and collectively
referred to as "Common Structures"). A common roof is a roof
which is built as a common part of the original construction of two
Condominiums, if the portion of the roof covering each Condominium
is joined at the boundaries of the two Condominiums. A common
foundation is a foundation which is built as a common part of
the original construction of the Condominiums, if the portion of
the foundation underlying each Condominium is joined at the
boundaries of the two Condominiums.
25.2. Application of General Rules.
To the extent not inconsistent with the provisions of this
Section 25, the general rules of law shall apply regarding
Common Structures and liability for damage due to negligence or
willful acts or omissions.
25.3. Repair, Maintenance and Replacement of Common
Structures. Each Owner shall have the right to effect the repair,
maintenance, or replacement of the portions of the Common
Structures affecting his/her Condominium. The cost of reasonable
repair, maintenance and replacement of the Common Structures shall
be shared by the Owners who have the use of such Common Structures
in accordance with Section 25.4 herein, provided, however, each
Owner shall be solely responsible to maintain, repair, and replace.-
(1) the interior surfaces of the Common Structures within such
Owners Condominium, (2) any plumbing or other utilities which
service only the Owner's Condominium regardless of whether the
plumbing or utilities are located within Common Structures, (3)
any damage caused to the Common Structures by such Owner or the
occupants, guests or invitees of his/her Condominium, (4) any
damage to Common Structures which clearly affect only one (1)
Condominium as determined by a licensed roofer or contractor, as
appropriate for repair or replacement of the roof, foundation,
or wall ("Licensed Contractor"), and (5) any damage to any
portion of any improvement which was added to the Common Structure
CC&RS/CBE/
10/5/2000 100
as originally constructed by the Declarant (e.g. room and/or patio
additions which increase the total square footage of either the
roof and/or the foundation, referred to as "Additions").
If the cost for repair, maintenance or replacements is to be
shared by both Owners of Condominiums, in accordance with Section
25.4 herein, the Owner initiating the repair, maintenance, or
replacement of a Common Structure shall: (1) provide at least
fifteen (15) days written notice to the other Owner of such
intended maintenance, repair, and replacement, which shall
include the estimated cost thereof as set forth in a bid for the
work and (2) provide the other Owner with an opportunity to
obtain separate bids for the work to be completed. Unless the
Owners of both Condominiums agree, the Licensed Contractor with
the lowest bind shall be used for the work. A Common Structure
shall be repair, rather than replaced, if determined by the
Licensed Contractor, as the most feasible alternative.
In the event of an emergency situation, an Owner may
effect the repair and/or maintenance (but not a replacement) of
a Common Structure without the notice and bid requirements set
forth in this Section 25.3. For purposes of this Section 25.3,
an "emergency situation" is defined as a situation when a repair
or maintenance is immediately necessary to protect either
Condominium from immediate further damage.
25.4. Allocation of Costs. Except as specifically
otherwise set forth herein, the cost of maintenance, repair,
replacement or reconstruction of a Common Structure shall be
allocated as follows:
CC&RS/CBE/
10/5/2000 " 101
(1) Entire Common Structures. In the event the entire
Common Structure needs to be maintained, repaired, replaced or
reconstructed, the cost thereof shall be allocated between both
Owners of the attached Condominiums on the basis of the ratio of
the square footage of the portion of the Common Structure (i.e.
roof or foundation) which covers a Condominium to the total square
footage of the aggregate of the Common Structure covering both
Condominiums. For purposes of allocating costs for maintenance,
repair, replacement or reconstruction of a Common Structure, the
total square footage of the aggregate of the Common Structure shall
exclude the square footage of any Additions. For example, the
common roof system and common foundation system shall include only
the original square footage of the roof and foundation, as each
was originally constructed by the Declarant.
(2) Portions of Common Structure. In the event a
portion of the Common Structure needs to be maintained, repaired,
replaced or reconstructed, the cost thereof shall be allocated
between both Owners of the attached Condominiums upon the basis
of the ratio of the square footage of the portion of the Common
Structure covering both Condominiums which needs to be maintained,
repaired, replaced or reconstructed.
25.5. Change to Exteriors.
(1) Painting. An Owner shall not repaint those portions
of the exterior of his/her Condominium which are visible from a
public street to other than the original color unless: (i) the
ARC approves the change in color and (ii) all portions of the
exterior of the attached Condominiums which are visible from a
public street are repainted at the same time and in the same color.
An Owner shall be required to repaint only if the exterior of his/
her Condominium is in disrepair and painting is necessary to
maintain his/her Condominium in good condition. Each Owner shall
bear the costs of repainting his/her respective Condominium.
CC&RS/CBE/
10/5/2000
(2) Replacement of Roof. An Owner shall not replace any
portion of the roof of his/her Condominium with other than the
original roof materials unless: (i) the ARC approves the change in
roof material and (ii) the entire common roof system is replaced
at the same time and with the same materials. An Owner shall not
be required to replace the common roof system unless repairing the
roof is not a feasible alternative as determined by a Licensed
Contractor. The costs of replacing the common roof system shall
be allocated in accordance with Section 25.4 herein.
25.6. Damage and Destruction.
(1) Common Structures. If a Common Structure is
destroyed or damaged by fire or other casualty, the Owners who
have used the Common Structure shall contribute to the costs to
restore the Common Structure in accordance with Section 25.4
herein; subject to, however, the foregoing does not prevent an
Owner from requiring a larger contribution from the other Owner
pursuant to a rule of law which requires liability for negligent
or willful acts or omissions as provided in this Article XXV.
(2) Reconstruction of Condominium(s). In the event
one or both Condominium(s) is/are damaged or destroyed, such
Condominium(s) shall be reconstructed, and the Owner(s) of such
Condominium(s) shall cause the reconstruction to be performed
diligently from the commencement thereof, and the reconstruction
shall be completed within a reasonable time. In the event one of
the attached Condominiums is destroyed and reconstruction of such
Condominium does not commence within sixty (60) days ("Destroyed
Condominium"), the Owner of such Condominium shall immediately
undertake the following steps to: (i) abate any unsightly or
dangerous conditions; (ii) restore the Condominium to a clean and
attractive condition, and (iii) pay for the restoration of the
remaining portions of the Common Structures to ensure that they
are functional and in conformance with the architectural standards
and guidelines for this Project (in which event, such structures
shall no longer be deemed "Common Structures"). In such event,
subject to the right of the Owner of the Destroyed Condominium
to rebuild at a later date as described in the following paragraph,
the ARC shall grant a variance to the Owner of the remaining
Condominium to permit a detached Condominium with an independent
roof system and foundation, provided the roof of the remaining
CC&RS/CBE/
10/5/2000 103
Condominium is modified to prevent water intrusion, maintain
support and the foundation is "saw-cut" (if necessary). If, at a
later date, the Destroyed Condominium is to be rebuilt, the Owner
reconstructing the Destroyed Condominium may, subject to the prior
approval of the ARC, reattach the roof on his/her Condominium to
the roof of the adjoining Condominium, provided the Owner makes all
necessary modifications to the roof of the adjoining Condominium
to prevent any damage to such Condominium and the reconstruction
is in accordance with all applicable local and governmental codes
and regulations. Upon reattachment, the roof shall be deemed a
Common Structure. Any restoration and/or repair of any damage to
portions of a Condominium (other than Common Structures as provided
herein) shall be made by and at the individual expense of the Owner
of such Condominium, provided, however, the foregoing does not
prevent an Owner from requiring contribution from the other Owner
of the attached Condominium pursuant to any rule of law regarding
liability for negligent or willful acts or omissions as provided
herein.
25.7. Weatherproofing. An Owner, who by his or her act,
causes a Common Structure to be exposed to the elements shall bear
the costs of furnishing the necessary protection against such
elements.
25.8. Encroachment Easements. The Declarant hereby
reserves on behalf of the Owner of a Condominium sharing Common
Structures, an easement over, under, upon and across the adjoining
Condominium for the purpose of accommodating any encroachment due
to engineering errors, errors in original construction, settlement,
or shifting of any building, or for any other cause. There shall
be valid easements for the maintenance of such encroachments as
long as they shall exist. The rights and obligations of the
Owners shall not be altered in any way by such encroachments,
settlements or shifting; provided, however, an easement is not
reserved hereby for any encroachment which may occur due to the
willful misconduct of the other Owner. Each Owner of Common
Structures agrees that in the event any portion of a Condominium
sharing Common Structures is partially or totally destroyed and
then repaired or rebuilt, unintentional minor encroachments
affecting the adjoining Condominium shall be permitted. There
shall be a valid easement for the maintenance of such encroachments
so long as they shall exist.
CC&RS/CBE/
10/5/2000 104
25.9. Maintenance. Repair and Reconstruction
Easements. The Declarant hereby reserves to the Owner of
each Condominium sharing Common Structures, easements,
appurtenant to each such Condominium, over, under, upon and
across the adjoining Condominium for purposes of providing:
(1) access, only to the extent necessary, for maintenance,
repair, and reconstruction of the Owners Condominium, including
Common Structure; and (2) support for the Common Structures.
25.10. Roof Easement; Drainage. The Declarant
reserves to the Owner of each Condominium sharing a common
roof system, an easement appurtenant to each Condominium,
over the portion of the roof of the adjoining Condominium for
the flow of water across and along such roof area. The
Declarant also reserves to the Owner of each Condominium sharing
a common roof system, an easement, appurtenant to each such
Condominium, over, upon, and across the adjoining Condominium for
roof overhangs, if any, and for flow of water resulting from
modifications of a common roof system to an independent roof
system (i.e. one of the attached Condominiums is not reconstructed
and the portion of the roof is modified as provided herein). This
easement shall become effective only when one of the attached
Condominiums is destroyed, the Condominium is not to be
reconstructed and the ARC grants a variance to the Owner of the
remaining Condominium to allow for a detached Condominium with an
independent roof and foundation system. This easement shall cease
upon the reconstruction of the Destroyed Condominium. Each Owner
shall, at all times, keep and maintain any roof drainage systems
serving his or her Condominium, including but not limited to
downspouts and rain gutters, in good condition and free from all
debris. No Owner may remove or modify such drainage in such
manner which increases the flow of water to the adjoining
attached Condominium.
CC&RS/CBE/
10/5/2000 105
25.11. Owner's Insurance. Each Owner shall procure
and maintain a "special form fire hazard" insurance policy with
an endorsement for "replacement cost" and with a reasonable
deductible. A certificate of insurance evidencing the insurance
policy with the endorsements required by this Section shall be
delivered by each Owner to the Owner of the adjoining Condominium
on an annual basis. Each Owner shall provide to the Owner of the
adjoining Condominium written notice of cancellation or reduction
of coverage amount of the insurance policy required by this
Section 25.11, not less than thirty (30) days prior to the
effective date of cancellation or reduction of coverage amount of
the policy.
•• >
25.12. Dispute Resolution. In the event of dispute
between Owners of attached Condominiums arising in connection wit
the Common Structure or the provisions of this Declaration, each
Owner shall have the right to enforce, by any proceeding at law
or in equity, against the Owner of the adjoining attached
Condominium, all covenants imposed by this Declaration. In
connection with any such action, each Owner shall be entitled to
recover such Owner's attorney's fees and costs as so ordered by
the court. Prior to commencement of any such action, written
notice of the violation shall be given to the defaulting Owner.
Failure of any Owner to enforce any covenant contained herein
shall in no event be deemed a waiver of the right to do so at any
time thereafter. Notwithstanding the foregoing, the Owners shall
consider, as a forum for resolving their dispute, the use of
such alternative dispute resolution procedures, such as arbitration
or mediation. If the Owners are unable to agree on such
alternative forum, the Owners shall pursue their legal or
equitable remedies through the court system.
CC&RS/CBE/
10/5/2000
25.13. Mechanic's Liens. An Owner of an attached
Condominium shall not permit to be placed against the adjoining
Owner's Condominium, any mechanics', materialmens', contractors',
or subcontractors' liens arising out of the work of any
maintenance, repair, replacement, restoration of Common Structures,
or any other claim or demand. Each Owner shall pay or cause to
be paid all said liens, claims or demands before any action is
brought to enforce the same against the Owner of the adjoining
Condominium. Each Owner agrees to indemnify, protect, defend
and hold the other Owner and the Owner's Condominium free and
harmless from all liability for any and all such liens, claims,
and demands together with reasonable attorneys' fees and all
reasonably incurred costs and expenses.
This Declaration is dated October 5, 2000 for identification
purposes.
CARLSBAD BEACH GROUP INVESTORS, L.L.C.,
A CALIFORNIA LIMITED LIABILITY COMPANY
BY: ITS MANAGING MEMBER
MERIT GROUP INC., A CALIFORNIA
CORPORATION
BY: ITS PRESIDENT H. DAVID BUCKMASTER
By:.
H. DAVID BUCKMASTER
PRESIDENT
By:.
H. DAVID
By:.__
PATRICIA A. BUCKMASTER
OWNER
Declarant
CC&RS/CBE/
10/5/2000 107
STATE OF CALIFORNIA )
) S3 .
COUNTY OF
On _ Q cJCo-W-o^ Xj _ / 2000, before me, the
undersigned, a Notary Public in and for said State, personally
appeared \^ . vSu^j^ji ,^Ajo<J^r^-»-^X-<-x^ ^ - - ----- """"-• and personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the person C#1 whose name (-sO (is) (are) subscribed to the
within instrument and acknowledged to me that (he) (she) (they)
executed the same in (his) (her-) (their) authorized capacity (i-es") ,
and that by (his) (hei) (their-)- signature^) on the instrument the
personCsT, or the entity upon behalf of which the person (erf acted,
executed the instrument. ^nmfaAmnfkariakit+nf
DEMISE SCIARRA k
Commission #1190300 \,
WITNESS my hand and official seal. $B?Slgi9 Notary PubGc- California I
Son Diego Count/ r
My Comni Espies AugU.20D2 f
. *•
Notary Public in and for said State
STATE OF CALIFORNIA )
) ss.
COUNTY OF JlX^Vxju^ )
6
On OcAVv^ov_ W , 2000, before me, the
undersigned, a Notary Public in and for said State, personally
appeared \?CJXA.I-^.<, (X • ^jL/J^^vN-v^aXX^ "~ •- and, personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the person (-si whose name (-S-) (is) (are)- subscribed to the
within instrument and acknowledged to me that (he-) (she) (tiiey)
executed the same in (hisj (her) (tkeanr) authorized capacity (irca)-,
and that by (hisJL (her) (fehoi-r) signature (-3-) on the instrument the
person^) , or the entity upon behalf of which the person (s-)- acted,
executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
lift ffti
cciRs/CBE/ , n 1 .^^ DENISE SCIARRA
10/5/2000 108 I ^^\ Commission#1190300
Notary PubDc- California f
San Diego County
MyComm.ExptesAugU.2CC2
SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in
and under that certain Deed of Trust dated July 6r 2000 and
recorded on ^-/ T-QQ as File No. 2000 " 031*5260 in the
the Official Records (the "Deed of Trust"), which Deed of Trust is
by and between H. OAVin BllEKMASTFR and PATRTCTA A. BUCKMASTER.
as Trustor, FTHFI TTY NATTDNAI TTTI F
as Trustee, n K'FIVT MnpTEflKF rriMPflNY Hha NDVFI i F
as Beneficiary, hereby expressly subordinates said Deed of Trust
and its beneficial interest thereunder to the foregoing Declaration
of Covenants, Conditions and Restrictions and Reservation of
Easements for Carlsbad Beach Estates ("Declaration") and to all
maintenance and other easements to be conveyed to the Association
in accordance with the Declaration. By executing this
Subordination, the undersigned agrees that should the undersigned
acquire title to all or any portion of the Property by foreclosure
or any other remedy in or relating to the Deed of Trust, the
undersigned will acquire title subject to the provisions of the
Declaration any amendments thereto, which shall remain in full
force and effect.
OLD KE« MORTGAGE-SflMPANY "dba" NOVELLE
M1chigan
Its
By:
It's
CC5.RS/C3E/
S/15/2000
STATE OF CALIFORNIA
COUNTY
On
undersigned, | a Notary Public? in
personally appeared f/Oi ( 1 l£tm P-
, 2000, before me, the
d for said County and State,
el amid frarV M
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person (s) whose name (s)
subscribed to Che within instrument and acknowledged to me that
he/oho/j^jaeY) executed the same in hi.s/her/-^Hez^ authorized
capacity (ies) , and that by hio/hor^g&eX^ signature (s) on the
instrument the person (s) , or the enTTty upon behalf of which the
person (s) acted, executed the instrument.
WITNESS my hand and official seal.
7
MARIA SARDINACOMM. #1180801
SAN OtEQO COUNTY OMy CommMan ExptrM 7APFUL 23,2002 \
CC1RS/CBE/
fi/15/ZOOO 104
P.03
SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in
and. under that certain Deed of Trust dated May 1 .? } iggg and
recorded on Mav 21 r 1999 _ as File No. l q q q - n 3 4 q i 5 ? _ in the
the Official Records (the "Deed of Trust") , which Deed of Trust is
by and between MERTT GROUP, TNC. a California Corporation _
as Xrustor, F •? r g •f* Am^rjcstn TitTfl Insur^ncg C o m p 3. n '/ . 3. C^TIfornl^ Corn
as Trustee, Billy .7oe Burlce _
as Beneficiary, hereby expressly subordinates said Deed of Trust
and its beneficial interest thereunder to the foregoing Declaration
of Covenants, Conditions and Restrictions and Reservation of
Easements for Carlsbad Beach Estates ("Declaration") and to all
maintenance and other easements to be conveyed to the Association
in accordance with the Declaration. By executing this
Subordination, the undersigned agrees that should the undersigned
acquire title to all or any portion of the Property by foreclosure
or any other remedy in or relating to the Deed of Trust, the
undersigned will acquire title subject to the provisions of the
Declaration any amendments thereto, which shall remain in full
force and effect.
Dated • t^t / <3<=s , 2000.
BILLY JOE BURKE
By:
Its:
CCS.RS/C3E/
6/15/2030
6- ] la-
STATE OF CALIFORNIA )
COUNTY
On this \<p^ day of
undersigned, a Notarv_ Publi
personally appeared Q / //\/
, 2000, before me, the
and for said County and State,
pcroonally kuuwli L.J m» (or proved to me on the basis of
satisfactory evidence) to be the person (^5 whose name (si
subscribed to the within instrument and acknowledged to me that
(jog/sha/ttiey-executed the same in (Hijg/bar/their authorized
capacity(i»») , and that by <JIIJ/li«.L/lheit signature^ on the
instrument the person (^) , or the entity upon behalf of which the
person^) acted, executed the instrument.
SS my hand and official seal.
MARY H. MAGGAY
Comm./1241642
NOTARY PUJllC-atlTOHN
SM Ditgo County ""
My Comm. Expiies Dee. 10,2003 *t
0
CC&HS/C3S/
6/is/:oca
JUN-15-2Q0Q QQ:30
104
619 5311120
SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in
and under that certain Deed of Trust dated j^nnary ?^ ?pnp and
recorded on February 2. 2000 as File No. __2000-0055840 in the
the Official Records (the "Deed of Trust"), which Deed of Trust is
by and between CARI.SRAR RFAT.H RROLIP TNVFSTHRS, LLC a California JJmitec
as Trustor, LIFE BANK Liabi 11 ty
as Trustee, i TFF RANK
as Beneficiary, hereby expressly subordinates said Deed of Trust
and its beneficial interest thereunder to the foregoing Declaration
of Covenants, Conditions and Restrictions and Reservation of
Easements for Carlsbad Beach Estates ("Declaration") and to all
maintenance and other easements to be conveyed to the Association
in accordance with the Declaration. By executing this
Subordination, the undersigned agrees that should the undersigned
acquire title to all or any portion of the Property by foreclosure
or any other remedy in or relating to the Deed of Trust, the
undersigned will acquire title subject to the provisions of the
Declaration any amendments thereto, which shall remain in full
force and effect.
Dated: V - O/ — 2000.
LIFEBAN^" •
By:_Z_
lts=
* I
S/1S/2G30 103
6- 1 5-r KUC1
STATE OF CALIFORNIA )
COUNTY OF
On this day of W 2000, before me, the
undersigned, a Notary Public in and for said County and State,
personally appeared T. M ichd^l W/mum *- TTdlcL CO. Crgj
m." proved to on the baoia o€-personally known to me
satisf actory evidence^ to be the person (s) whose name(s)
subscribed to the within instrument and acknowledged to me that
ho/cho;^h^y) executed the same in fcig/hggT^heljr authorized
capacity (ies) , and that by h-ia/her^hei^ signature (s) on the
instrument the person (s), or the entity upon behalf of which the
per son (s) acted, executed the instrument.
WITNESS my hand and official seal.
- 0 fcvLH 1EUZA3E"H A. SEYE3
Commission * 1170726
Notary Puolic - California
Orange CountyOrange County f
My Comm. Expires Jan 24,2002 f
CC5JIS/C3E/
6/15/2000
JUN-15-2000 00=30
104
619 5311120 P.0"
SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in
and under that certain Deed of Trust dated .lamjary ?7^?nnn and
recorded on JLebruarv 2, 2000 as File No. ,2000-0055844 in the
the Official Records (the "Deed of Trust"), which Deed of Trust is
by and between CARLSBAD RFACH GROUP INVESTORS. LLC a Calif. Limited
as Trustor, ASSFT MANAGERS TNC. a Ha "M form'a. Corpora 11 on Liability C
as Trustee, p $ Q MORTGAGE1 FUND ni L, P^ * California I Imitpd Partner;
as Beneficiary, hereby expressly subordinates said Deed of Trust
and its beneficial interest thereunder to the foregoing Declaration
of Covenants, Conditions and Restrictions and Reservation of
Easements for Carlsbad Beach Estates ("Declaration") and to all
maintenance and other easements to be conveyed to the Association
in accordance with the Declaration. By executing this
Subordination, the undersigned agrees that should the undersigned
acquire title to all or any portion of the Property by foreclosure
or any other remedy in or relating to the Deed of Trust, the
undersigned will acquire title subject: to the provisions of the
Declaration any amendments thereto, which shall remain in full
force and effect.
Dated: /LOW , 2000. Q & A MORTGAGE FUNO m, L.P
a California Limited Partnership
its: I-Vs General
CCS«RS;CBE/ , -..,
S/1S/2COO 1Uj
STATE OF CALIFORNIA )
COUNTY OF
On this day of 2000, before me, the_ ___^
undersigned, a Notary Public in*--4nd for said County and State,
personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person^ whose name-fs) \ij
subscribed to the within instrument and acknowledged to me that
he^sBg^t-feey executed the same in his X5s£$t heir authorized
capacity (ies) , and that by h4&^er2!Xhoir signature (-&}- on the
instrument the persan-f») / or the entity upon behalf of which the
person-fs-) acted, executed the instrument.
WITNESS nd /and official seal.j ...
oRIERI K
ilfl/74fl t
CARLAINDRIE5J1
Commission #
Notary Public-Cafifomia |
San Diego County f
My Comm. Expires Jun 7,2002 f
CC1HS/C3E/
6/15/2000
JUN-15-2000 0Q: 30
104
619 5311120 P.07