HomeMy WebLinkAboutCT 99-04; Villages of La Costa Oaks & Ridge; Tentative Map (CT) (11)RECORDED AT THE REQUEST CFj
CHICAGO TITLE CO.
Recording Requested By:
When Recorded Mail To:
Luce, Forward, Hamilton & Scripps LLP
600 West Broadway, Suite 2600
San Diego, California 92101
Attn: Nancy T. Scull, Esq.
DOC ft 2003-0765993
JUN 27, 2OO3 3=O5 PM
OFFICIAL RECORDS
m DIEGO COUNTY RECORDER'S OFICE
GREGORY 3. SHITH, COUKTY RECORDER
FEES: 366.00t»Y: 2
0785893
^306 (,640-This Space for Recorder's Use Only
\con
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
LA COSTA OAKS
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SECTION 15.4 OF THIS DECLARATION CONTAINS BINDING ARBITRATION
PROVISIONS IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND
A WAIVER OF THE CONSTITUTIONAL RIGHT TO A JURY.
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 3
1.1 Additional Charges 3
1.2 Additional Property 3
1.3 Annexation 3
1.4 Architectural Committee 3
1.5 Best Management Practices .3
1.6 Budget : 3
1.7 City 3
1.8 City Requirements 3
1.9 Close of Escrow ; 4
1.10 Common Expenses 4
1.11 Common Maintenance Area 5
1.12 Community Articles 5
1.13 Community Assessments .....5
1.13.1 Regular Assessment 5
1.13.2 Special Assessment 5
1.13.3 Capital Improvement Assessment 5
1.13.4 Enforcement Assessment 6
1.13.5 Reconstruction Assessment 6
1.13.6 Special Services Assessment 6
1.13.7 Community Association .6
1.14 Community Association's Maintenance Manual 6
1.15 Community Association Property 6
1.16 Community Board 6
1.17 Community Bylaws 6
1.18 Community Design Standards 6
1.19 Community Governing Documents 7
1.20 Community Handbook 7
1.21 Condominium and Condominium Owner 7
1.22 Condominium Project 7
1.23 Condominium Project Assessments 7
1.24 Condominium Project Association 7
1.25 Condominium Project Board 7
1.26 Condominium Project Common Area 7
1.27 Condominium Project Declaration 7
1.28 County 8
1.29 Covered Property '. 8
1.30 Declarant 8
1.31 Declaration 8
1.32 Delegate 8
1.33 Delegate Districts 8
1.34 DRE 8
1.35 Election Committee 8
1.36 Eligible Holder 8
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1.37 Federal Agencies 9
1.38 Final Maps 9
1.39 Fire Suppression Zones 9
1.40 First Mortgage 9
1.41 First Mortgagee 9
1.42 Fiscal Year 9
1.43 Governmental Agency ;. 9
1.44 Habitat Preserve Areas.... 9
1.45 Habitat Preserve Adjacent Areas ..9
1.46 Habitat Preserve Restrictions ; I..9
1.47 Improvements 10
1.48 Institutional Mortgagee.... 10
1.49 Invitee 10
1.50 La Costa Oaks Community 10
1.51 Lot...... 10
1.52 Maintenance Obligations 10
1.53 Member 10
1.54 Merchant Builder or Merchant Builders 11
1.55 Mortgage 11
1.56 Mortgagee 11
1.57 Notice and Hearing 11
1.58 Owner 11
1.59 Perimeter Walls and Fences. 11
1.60 Person 11
1.61 Phase 11
1.62 Public Report 11
1.63 Public Use Areas 11
1.64 Recreational Vehicle Storage Area 12
1.65 Residence 12
1.66 Residential Lot 12
1.67 Special Benefit Areas 12
1.68 Special Benefit Area Budget 12
1.69 Special Benefit Maintenance Areas 12
1.70 Supplementary Declaration 12
1.71 Telecommunication Facilities 13
1.72 Telecommunication Services 13
1.73 Trail System 13
1.74 Voting Power 13
ARTICLE 2 PROPERTY RIGHTS IN RESIDENTIAL LOTS AND COMMUNITY
ASSOCIATION PROPERTY 13
2.1 Ownership of Community Association Property and Common
Maintenance Area 13
2.2 Rights of Use of the Community Association Property and Common
Maintenance Areas .14
2.3 Owners' Easements of Enjoyment 14
2.3.1 Limits on Users of Community Association Property 14
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2.3.2 Suspend Rights of Members 14
2.3.3 Dedicate or Grant Easements 15
2.3.4 Borrow Funds 15
2.3.5 Entry by Community Association 15
2.3.6 Restrictions on Use Imposed on Community Association
Property 15
2.3.7 Hiking Trail System 15
2.3.8 Bicycle and Pedestrian Paths 15
2.3.9 Community Association Easement 16
2.4 Establish Special Assessment District..... 16
2.5 Encroachment 16
2.6 Easements Reserved to Declarant, the Merchant Builders and/or
Community Association 16
2.6.1 Master Telecommunications Easement 16
2.6.2 Master Cable Television Service Easement 17
2.6.3 Easement for Declarant and Merchant Builders Over
Community Association Property 17
2.6.4 Irrigation Easements 17
2.6.5 Easement Over the Common Maintenance Area on Lots 17
2.6.6 Drainage Easements 18
2.6.7 Easements for Public Service Use 18
2.6.8 Perimeter Wall Easements 18
2.6.9 Utilities 18
2.6.10 Community Association Easements 18
2.6.11 Storm Water Compliance Easements 18
2.7 Amendment to Eliminate Easements 19
ARTICLE 3 MEMBERSHIP AND VOTING RIGHTS IN COMMUNITY
ASSOCIATION : 19
3.1 Ownership of Residential Lots 19
3.2 Membership 19
3.2.1 Qualifications 19
3.2.2 Transfer of Membership 19
3.2.3 Assignment of Right of Use 19
3.2.4 Transfer of Membership Upon Sale 20
3.3 Classes of Voting Membership 20
3.3.1 Class A Membership 20
3.3.2 Class B Membership 20
3.3.3 Class C Membership 21
3.4 Declarant's Right to Select Director 21
3.5 Continuing Approval of Declarant 21
3.6 Special Benefit Area Approvals 22
3.7 Commencement of Voting Rights 22
ARTICLE 4 POWERS AND DUTIES OF THE COMMUNITY ASSOCIATION 22
4.1 Powers of Community Association 22
4.1.1 Delegation of Powers; Professional Management 23
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4.1.2 Right of Entry and Enforcement 23
4.1.3 Easements and Rights of Way 23
4.1.4 Dedication 23
4.1.5 Capital Improvements 23
4.1.6 Enter Into Maintenance, Subsidy Agreements and/or Use
Agreements 23
4.1.7 Right of Enforcement and Notice and Hearing 24
4.1.8 Contract for Goods and Services 24
4.1.9 Litigation 25
4.1.10 ORE 25
4.1.11 c Telecommunications Contract ....25
4.1.12 Claims and Actions 26
4.2 Duties of the Community Association 26
4.2.1 Taxes and Assessments 26
4.2.2 Maintenance of La Costa Oaks Community 27
4.2.3 Insurance 27
4.2.4 Audit 27
4.2.5 Community Assessments 27
4.2.6 Utility Services 27
4.2.7 Architectural Control 27
4.2.8 Community Handbook 27
4.2.9 Special Benefit Areas Administration 28
4.2.10 Maintenance Manual 28
4.2.11 Members' Approval of Certain Actions 28
4.2.12 Use of Proceeds to Repair 28
4.3 Prohibited Activities 28
4.3.1 Property Manager 28
4.3.2 Offsite Nuisances 29
4.3.3 Political Activities or Contributions 29
4.3.4 Subassociation or Cost Center 29
4.3.5 Mortgagee Consents 29
4.3.6 Reserved Rights of Declarant and Merchant Builders , 29
4.3.7 Limitations on Authority of Community Board 30
4.3.8 Nonliability 31
4.3.9 Scope of Powers and Standard of Care 31
ARTICLES ASSESSMENTS 32
5.1 Creation of Lien and Personal Obligation for Assessments 32
5.2 Maintenance Funds of Community Association 33
5.3 Purpose of Community Assessments 33
5.4 Nature of Assessments 33
5.4.1 Regular Assessments 33
5.4.2 Special Assessments 34
5.4.3 Capital Improvement Assessments 34
5.4.4 Enforcement Assessments 34
5.4.5 Formation of Special Benefit Areas 35
5.4.6 Special Services Assessment 35
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5.4.7 Reconstruction Assessments 35
5.5 Limitation on Assessments , 35
5.5.1 Quorum 36
5.5.2 Emergency Situation 36
5.5.3 Notice to Owners 37
5.6 Increases in Assessments Based Upon Range of Assessments 37
5.7 Allocation of Community Assessments to Lots 37
5.7.1 General Assessment Component 37
5.7.2 Special Benefit Area Assessment Component 37
5.7.3 Other Community Assessments 38
5.8 Date of Commencement of Regular Assessments; Due Dates 38
5.9 Annual Levy of Regular Assessments 38 2
5.10 Notice and Assessment Installment Due Dates 38 C
5.11 Estoppel Certificate 39 /j
5.12 Excess Funds 39 «
5.13 Collection of Assessments; Liens 39 I
5.13.1 Right to Enforce 39 7
5.13.2 Notice of Assessment and Foreclosure 39
5.13.3 Delinquent Assessments 39
5.13.4 Creation of Lien 40
5.13.5 Assignment 40
5.13.6 Notice of Default; Foreclosure 40
5.13.7 Payments Under Protest 41
5.13.8 Payment of Assessments 41
5.14 Additional Charges 41
5.14.1 Attorneys' Fees 41
5.14.2 Late Charges 41
5.14.3 Costs of Suit 42
5.14.4 Interest 42
5.14.5 Other 42
5.15 Waiver of Exemptions 42
5.16 Subordination of Lien to First Mortgages 42
5.17 No Offsets 42
5.18 Transfer of Covered Property 42
5.19 Failure to Fix Assessments 42
5.20 Personal Liability of Owner ; 43
5.21 Exempt Covered Property 43
5.22 Capitalization of Community Association 43
ARTICLE 6 ARCHITECTURAL CONTROL 43
6.1 Architectural Committee 43
6.1.1 Resignations '. 44
6.1.2 Vacancies 44
6.2 Scope 44
6.3 Exemptions 44
6.3.1 Declarant Exemption 44
6.3.2 Merchant Builder Exemption 44
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6.4 Duties ; 44
6.5 Community Design Standards 45
6.6 Address 45
6.7 Fees 45
6.8 Meetings 45
6.9 Approval of Solar Energy Systems 45
6.10 . Waiver 46
6.11 Government Regulations 46
6.12 Waiver 46
6.13 Variances 46
6.14 Liability 47
6.15 Estoppel Certificate 47
6.16 Interpretation 47
6.17 Amendments 48
ARTICLE 7 USE RESTRICTIONS 48
7.1 Residential Use 48
7.2 Nuisances 48
7.3 Air Conditioning Fixtures 49
7.4 Utilities ...49
7.4.1 Accessory Structures 49
7.5 Roofs 49
7.6 Antennae and Satellite Dishes 49
7.7 Exterior Maintenance and Repair; Owner's Obligations 50
7.8 Drainage 50
7.9 Water and Sewer Systems 50
7.10 No Hazardous Activities 50
7.11 Unsightly Articles 50
7.12 Temporary and Prefabricated Structures 51
7.13 Mining and Drilling .". 51
7.14 View Impairment .: 51
7.15 Landscaping 51
7.16 Parking and Vehicular Restrictions 52
7.17 Further Subdivision 52
7.18 Animals 52
7.19 Signs 53
7.20 Trees 53
7.21 Slope Control, Use and Maintenance 53
7.22 Habitat Preserve Areas 54
7.23 Erosion Control 54
7.24 La Costa Oaks Storm Drains and Storm Water 54
7.24.1 Storm Water Pollution Prevention Best Management
Practices 55
7.24.2 Liability to Declarant 55
7^25 Fire Suppression Zones 56
7.26 Window Coverings 56
7.27 Exterior Painting 56
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7.28 Restrictions 56
7.29 Sight Distance Corridors 56
7.30 Plant Species ...56
7.31 Perimeter Wall and Fence 56
7.32 Owner Liability 57
ARTICLE 8 ASSOCIATION PROPERTY, COMMON MAINTENANCE AREA
AND MAINTENANCE RESPONSIBILITIES .....57
8.1 Maintenance and Use of Community Association Property 57
8.2 Trail System ; 57
8.3 Compliance with Best Management Practices 57
8.4 Common Maintenance Area 57
8.4.1 Obligation to Maintain Certain Public Areas 57
8.5 Community Association Maintenance 58
8.6 Commencement of Maintenance 58
8.7 Drainage Facilities 59
8.8 Repair and Maintenance by Owners 59
8.8.1 Exterior of Residence 59
8.8.2 Landscaping 60
8.8.3 Interior Fencing Between Two Residential Lots 60
8.8.4 Fencing Separating Residential Lots and Community
Associations Property 60
8.9 Community Association's Right to Repair Neglected Lots 60
8.10 Landscape and Irrigation Maintenance 60
ARTICLE 9 INSURANCE AND CONDEMNATION 61
9.1 Insurance 61
9.1.1 Fire and Extended Coverage Insurance 61
9.1.2 Liability Insurance 62
9.1.3 Fidelity Bond :.62
9.1.4 Worker's Compensation Insurance 62
9.1.5 Directors and Officers 63
9.1.6 Other Insurance 63
9.2 Copies of Policies 63
9.2.1 Insurance to Satisfy Civil Code 63
9.2.2 Reimbursement of Community Association 63
9.3 Review of Insurance 63
9.4 Individual Insurance 64
9.5 Condemnation.. 64
ARTICLE 10 DESTRUCTION OF IMPROVEMENTS 64
10.1 Restoration of Improvements 64
10.1.1 Insurance Proceeds Adequate .....64
10.1.2 Insurance Proceeds Inadequate 65
10.1.3 Residential Lots 66
ARTICLE 11 DEVELOPMENT RIGHTS 66
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11.1 Limitations of Restrictions 66
11.2 Rights of Access and Completion of Construction 66
11.2.1 Access 66
11.2.2 Construct Improvements 67
11.2.3 Grant Easements 67
11.2.4 Exemptions 67
11.2.5 Additional Easements 68
11.3 Size and Appearance of La Costa Oaks Community 68
11.4 Marketing Rights 69
11.5 Title Rights 69
11.6 Amendment 69
11.7 Declarant Representative 69
ARTICLE 12 ANNEXATION '. 70
12.1 Annexation.. 70
12.2 Annexation Without Approval 70
12.3 Covenants Running with the Land 70
12.4 Supplementary Declarations 70
12.5 Rights and Obligations of Owners 71
12.6 Mergers or Consolidations 71
12.7 De-Annexation 71
ARTICLE 13 RIGHTS OF LENDERS 72
13.1 Payments of Taxes or Premiums by First Mortgagees 72
13.2 Priority of Lien of Mortgagee 72
13.3 Curing Defaults 72
13.4 Approval of First Mortgagees 72
13.4.1 Partition 73
13.4.2 Allocation of Charges 73
13.4.3 Maintenance 73
13.4.4 Insurance 73
13.4.5 Hazard Insurance 73
13.5 Restoration of Community Association Property 73
13.6 Professional Management 73
13.7 Notice to Mortgagees 73
13.8 Documents to be Available 74
13.9 Conflicts , 74
ARTICLE 14 AMENDMENTS 74
14.1 Amendment 74
14.2 Other Approvals Required for Amendments 76
14.3 Conflict with Article 13 or Other Provisions of this Declaration 76
14.4 Approval by City 76
14.5 Business and Professions Code Section 11018.7 77
14.6 Reliance on Amendments 77
ARTICLE 15 TERM AND ENFORCEMENT 77
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15.1 Duration 77
15.2 Enforcement and Nonwaiver. 77
15.2.1 Rights of Enforcement of Community Governing
Documents 77
15.2.2 Procedure for Enforcement 77
15.3 NOTICE OF ACTIONS AGAINST DECLARANT 78
15.4 ALTERNATIVE DISPUTE RESOLUTION 78
15.4.1 Mediation 78
15.4.2 Arbitration .78
15.4.3 Additional Rules Applicable To Certain Cases 80
15.4.4 Procedure for Appeal of Certain Cases 80
15.4.5 AGREEMENT TO ARBITRATE AND WAIVER OF
JURY TRIAL 81
15.4.6 Final and Binding Award 82
15.4.7 Severability 82
15.4.8 Application of Award 82
15.4.9 General Enforcement by the City 83
15.4.10 Right of City to Enforce Declaration 83
15.4.11 Failure of Community Association to Maintain Community
Association Property and Common Maintenance Areas 83
15.4.12 Special Assessments Levied by the City 83
15.5 City Required Disclosures 83
15.5.1 Use of Reclaimed Water 84
15.5.2 Dam Inundation Areas and Other Natural Hazards 84
15.5.3 Commercial and/or Retail Site , 84
15.5.4 Restricted Facilities Parking 84
15.6 Copy of Recorded Declaration to City 84
ARTICLE 16 GENERAL PROVISIONS 84
16.1 Headings : 84
16.2 Severability 85
16.3 Cumulative Remedies 85
16.4 Violations as Nuisance 85
16.5 No Racial Restriction 85
16.6 Access to Books 85
16.7 Liberal Construction 85
16.8 Notification of Sale of Residential Lot 85
16.9 Notices 85
16.10 Number; Gender 86
16.11 Exhibits 86
16.12 Binding Effect 1
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DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
OF LA COSTA OAKS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF
LA COSTA OAKS ("Declaration") is made as of June 26, 2003, by REAL ESTATE
COLLATERAL MANAGEMENT COMPANY, a Delaware corporation ("Declarant"), with
reference to the facts set forth below.
RECITALS
A. Declarant is the Owner of the real property situated in the City of Carlsbad,
County of San Diego, State of California, more particularly described on Exhibit "A" attached
to this Declaration ("Covered Property").
B. Declarant may add all or any of the real property described in Exhibit "B"
attached hereto and incorporated herein and delineated on the plat attached hereto as
Exhibit "B-l" and incorporated herein ("Additional Property") to the Covered Property already
subject to this Declaration by annexing such Additional Property and said Additional Property so
annexed will thereupon be subject to this Declaration.
C. Declarant intends to develop the Covered Property as a Master Planned
Development (as defined in Section 2792 of Title 10 of the California Code of Regulations),
which is also a "common interest development" pursuant to the Davis-Stirling Common Interest
Development Act. If developed as planned, the La Costa Oaks Community will consist of
approximately 844 Residences, together with certain areas which will be conveyed to the
Community Association (as hereinafter defined) as Community Association Property. (Herein
the Covered Property subject to this Declaration and the Improvements situated thereon are
sometimes referred to as the "La Costa Oaks Community"). However, there is no assurance that
the La Costa Oaks Community will be completed as planned.
D. Declarant has formed the La Costa Oaks Community Association, a California
nonprofit, mutual benefit corporation, for the purpose of exercising the powers and duties set
forth herein for the benefit of all of the Covered Property and each Owner of any portion of the
Covered Property.
E. The Owners of Residential Lots within the La Costa Oaks Community will be
members of the La Costa Oaks Community Association, a California nonprofit mutual benefit
corporation ("Community Association").
F. Before any Residential Lots are conveyed to Owners under a Public Report,
Declarant desires to establish covenants, conditions and restrictions upon the Covered Property
and each and every portion thereof, which will constitute a general scheme for the management
of the Covered Property and for the use, occupancy and enjoyment thereof, all for the purpose of
enhancing and protecting the value, desirability and attractiveness of the Covered Property and
enhancing the quality of life therein.
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INTRODUCTION TO THE PURPOSE OF THE DECLARATION
AND THE COMMUNITY GOVERNING DOCUMENTS
Declarant has established this Declaration to create a community for all of the Owners
within the Covered Property and to provide a governance structure for the La Costa Oaks
Community. This Declaration reflects and sets forth those goals and provides the powers and
procedures necessary to govern and maintain the La Costa Oaks Community,
The responsibilities and powers of the Community Association are not solely focused on,
or limited to control of the Owners and other people within La Costa Oaks Community, the
Community Association has other powers and duties, including responsibility for the
management and maintenance of real property. While the Community Association has the power f\
to provide for the maintenance, management, and preservation of portions of the Covered r>
Property, the Community Association also has other powers and functions which are described *•
in this Declaration. 3
3This Declaration also establishes an Architectural Committee which has jurisdiction over o
design review for the La Costa Oaks Community. The Architectural Committee administers,
interprets, and enforces the La Costa Oaks Community Design Standards, which are
architectural standards and procedures designed to enhance the quality of all planning and
architecture -within the La Costa Oaks Community.
The La Costa Oaks Community may also include areas where the Community Association
provides special services for the benefit of the Owners in those areas. These areas are referred
to as "Special Benefit Areas ". In such cases, the Owners within the Special Benefit Areas may
have the obligation to pay additional assessments for the special benefit which they receive. The
special benefit might include the maintenance by the Community Association of areas such as
private streets or slopes or similar areas which serve or benefit the Special Benefit Areas. The
Community Association may also appoint committees with representatives from the Special
Benefit Areas to participate in the administration and governance of the Special Benefit Areas.
Throughout this Declaration, there are summaries (like this summary) which are
indicated in italics to aid the reader's comprehension and use of the Community Governing
Documents. In the event of a conflict between any summary or diagram and the text of any of the
Community Governing Documents, the text shall control.
DECLARATION
NOW, THEREFORE, Declarant hereby declares and does hereby establish the following
general plan for the protection and benefit of all of the Covered Property and does hereby fix the
following protective covenants, conditions and restrictions upon each and every ownership
interest in the Covered Property and any other property annexed to this Declaration under which
covenants, conditions and restrictions shall be established and each ownership interest shall be
held, used, occupied, leased, sold, encumbered, conveyed and/or transferred. Each and all of the
covenants, conditions and restrictions are for the purpose of protecting the value and desirability
of and shall inure to the benefit of all of the Covered Property and, upon annexation, each
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subsequent Phase (as hereinafter defined), shall run with and be binding upon and pass with the
real property and each and every ownership interest therein and shall inure to the benefit of,
apply to and bind the respective successors in title or interest of Declarant. Declarant hereby
declares that all of the Covered Property described in Exhibit "A" shall be subject to this
Declaration and shall constitute the initial land subject to this Declaration. All or any portion of
the Additional Property may be annexed to and become subject to this Declaration and, upon
such Annexation, such Additional Property shall also be subject to the limitations, restrictions,
easements, covenants, conditions, liens and charges of this Declaration and shall be included
within the definition of the Covered Property.
ARTICLE 1
DEFINITIONS 0
Unless the context otherwise specifies or requires, the terms defined in this Article shall, 3
for all purposes of this Declaration, have the meanings herein specified. 3
1.1 Additional Charges. The term "Additional Charges" means costs, fees, charges '
and expenditures, including without limitation, attorneys' fees, late charges, interest and
recording and filing fees actually incurred by the Community Association in collecting and/or
enforcing payment of assessments, fines and/or penalties.
1.2 Additional Property. The term "Additional Property" means all of the real
property described on Exhibit "B" attached hereto and incorporated herein.
1.3 Annexation. The term "Annexation" means the process by which the Additional
Property may be made subject to this Declaration as set forth in the Article of this Declaration
entitled "Annexation."
1.4 Architectural Committee. The term "Architectural Committee" means the
committee created under the Article of this Declaration entitled "Architectural Committee."
1.5 Best Management Practices. The term "Best Management Practices" means the
Best Management Practices imposed from time to time by Governmental Agencies, including
those which are set forth in this Declaration and the Community Design Standards.
1.6 Budget. The term "Budget" means a written, itemized estimate of the Community
Association's income and Common Expenses prepared pursuant to the Community Bylaws.
1.7 City. The term "City" means the City of Carlsbad, State of California, a
municipal corporation.
1.8 City Requirements. The term "City Requirements" refers to the conditions and
requirements imposed by the City in connection with the approval of Tentative Map No. 99-04,
any Final Maps covering all or any portion of the Covered Property and any other approvals
identified in this Declaration or any Supplementary Declaration.
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1.9 Close of Escrow. The term "Close of Escrow" means the date on which a deed is
recorded conveying a Residential Lot under authority of a Public Report. The term "Close of
Escrow" shall not include the recordation of a deed (i) between Declarant and (a) any successor
to any rights of Declarant hereunder or (b) any Merchant Builder or (ii) between Merchant
Builders.
1.10 Common Expenses. The term "Common Expenses" means the actual and
estimated costs and expenses incurred or to be incurred by the Community Association,
including, but not limited to, the following:
1.10.1 maintenance, management, operation, repair and replacement of the
Community Association Property and Common Maintenance Area (including any Special o
Benefit Areas) and all other areas within the Covered Property which are maintained by the «
Community Association; *3
1.10.2 the cost of any services provided from time to time by the Community 3
Association including, any recreational, technology or other consultants which the Community e
Association elects to maintain to provide services to the Community Association;
1.10.3 the costs incurred in administering any committees formed by the
Community Association, subject to the provisions of the Community Governing Documents;
1.10.4 due but unpaid Community Assessments;
1.10.5 maintenance by the Community Association of medians and other areas
within the public rights-of-way to the extent required by the City, including without limitation,
the medians within Rancho Santa Fe Road and any bus shelters and similar structures or areas
within the public rights-of-way which the Community Association elects to or is required to
maintain;
1.10.6 costs of management and administration of the Community Association,
including, but not limited to, compensation paid by the Community Association to managers,
accountants, attorneys, architects and employees;
1.10.7 the costs of any utilities, trash pickup and disposal, gardening, patrols and
other services benefitting the Owners and their Residential Lots to the extent such services are
paid for by the Community Association;
1.10.8 the costs of fire, casualty, liability, worker's compensation and any other
insurance maintained by the Community Association;
1.10.9 reasonable reserves as deemed appropriate by the Community Board or
otherwise required to be maintained under the Community Governing Documents;
1.10.10 the costs of bonding of the members of the Community Board, the
Architectural Committee, any professional managing agent or any other person handling the
funds of the Community Association;
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1.10.11 taxes paid by the Community Association;
1.10.12 amounts paid by the Community Association for the discharge of
any lien or encumbrance levied against all or any portion of the Community Association
Property or the Common Maintenance Areas;
1.10.13 the costs of any other services provided by or for the Community
Association; and
1.10.14 the costs of any other item or items designated by, or in accordance
with other expenses incurred by the Community Association for any reason whatsoever in
connection with the operation, or governance of the La Costa Oaks Community or in furtherance e\
of the purposes or the discharge of any obligations imposed on the Community Association by «
the Community Governing Documents. 0
•31.11 Common Maintenance Area. The term "Common Maintenance Area" or 0
"Common Maintenance Areas" means (a) any portion of the Covered Property which is not *
owned by the Community Association but which is required to be maintained by the Community "
Association and (b) any property located outside of the boundaries of the Covered Property
including public property, public rights of way and median areas (including without limitation,
the median landscaping on Rancho Santa Fe Road), the maintenance of which the Community
Association is responsible for as provided in this Declaration or any Supplementary Declaration.
The Common Maintenance Area may include, without limitation, easements over the Residential
Lots of the Owners for maintenance purposes. The Common Maintenance Areas also include
any private lighting covered by any Encroachment Removal Agreements entered into by the City
and the Declarant, unless otherwise designated in a Supplementary Declaration. The Common
Maintenance Areas shall be described in the Supplementary Declarations.
1.12 Community Articles. The term "Community Articles" means the Articles of
Incorporation of the Community Association.
1.13 Community Assessments. The term "Community Assessments" refers
collectively or individually, as required by the context, to all or any of the assessments levied by
the Community Association in accordance with Article 5 of this Declaration and shall include the
Community Assessments defined below.
1.13.1 Regular Assessment. The terms "Regular Assessment" or "Regular
Assessments" means the assessment to be paid by each Owner to the Community Association for
Common Expenses as described in Subsection 5.4.1 of this Declaration.
1.13.2 Special Assessment. The terms "Special Assessment" or "Special
Assessments" means an assessment levied by the Community Association if the Community
Association determines that the Regular Assessments will be inadequate pursuant to the
provisions of Subsection 5.4.2 of this Declaration.
1.13.3 Capital Improvement Assessment. The terms "Capital Improvement
Assessment" or "Capital Improvement Assessments" means an assessment against each Owner
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and such Owner's Residential Lot, representing a portion of the cost to the Community
Association for installation or construction of any capital improvements for the Community
Association Property which the Community Association may from time to time authorize under
the provisions of Subsection 5.4.3 of this Declaration.
1.13.4 Enforcement Assessment. The terms "Enforcement Assessment" or
"Enforcement Assessments" refers to the charges assessed against any Owner and such Owner's
Residential Lot to reimburse the Community Association as a result of an Owner's failure to
comply with the provisions of this Declaration as described in Subsection 5.4.4 of this
Declaration.
1.13.5 Reconstruction Assessment. The terms "Reconstruction Assessment" or o
"Reconstruction Assessments" means a charge against each Owner and such Owner's Lot «
representing a portion of the cost to the Community Association for reconstruction of any portion U
or portions of the Community Association Property or Common Maintenance Area which is 3
1 imposed under the provisions of Article 10 of this Declaration. 3
i 1.13.6 Special Services Assessment. The term "Special Services Assessment" '
means an assessment which is levied on some but not all of the Owners for special services
provided by the Community Association to such Owners as described in Subsection 5.4.6 of this
Declaration.
> 1.13.7 Community Association. The term "Community Association" means the
La Costa Oaks Community Association, a California nonprofit mutual benefit corporation.
! 1.14 Community Association's Maintenance Manual. The term "Community
i Association's Maintenance Manual" refers to the manual which may be prepared by Declarant or
i its agents and provided to the Association, specifying obligations for maintenance of the
Association Property, the Community Association Property and the Common Maintenance Areas
by the Community Association, as updated and amended from time to time.
1.15 Community Association Property. The term "Community Association Property"
means all the real property owned in fee simple by the Community Association. The
Community Association Property shall be described in the Supplementary Declarations (as
hereinafter defined).
1.16 Community Board. The term "Community Board" means the Board of Directors
of the Community Association.
1.17 Community Bylaws. The term "Community Bylaws" means the Community
Bylaws of the Community Association, as they may from time to time be amended, which are or
shall be adopted by the Board.
1.18 Community Design Standards. The term "Community Design Standards" means
the design criteria, guidelines and policies and procedures adopted by the Community Board for
the Architectural Committee.
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1.19 Community Governing Documents. The term "Community Governing
Documents" means the Community Articles, Community Bylaws, Community Handbook (which
includes the Community Design Standards), this Declaration and the Supplementary
Declarations, and any amendments to any of the foregoing.
1.20 Community Handbook. The term "Community Handbook" means the handbook
adopted by the Community Board which sets forth the rules, procedures and other guidelines for
the governance of the Covered Property. The Community Handbook includes the Community
Design Standards.
1.21 Condominium and Condominium Owner. The terms "Condominium" and
"Condominium Owner" means, respectively, the estate and the Owner thereof of any o
condominium within the La Costa Oaks Community established pursuant to Sections 1351(f) of £
' the Civil Code of the State of California or any similar statute hereinafter enacted. *3
1.22 Condominium Proiect. The term "Condominium Project" means all Lots, 3
improved or unimproved, and Condominium Project Common Area, if any, of a separate a
subdivision or development within, the Covered Property as established by a Final Map or
condominium plan, record of survey or other such land division for which a separate
Condominium Project Association other than the Community Association, is formed to govern
and control the operation and maintenance of the Condominium Project and which is
encumbered by a Condominium Project Declaration.
1.23 Condominium Project Assessments. The term "Condominium Project
Assessments" means assessments determined pursuant to any Condominium Project Declaration
which are levied exclusively on Residential Lots contained in a particular Condominium Project
and which are created pursuant to a Condominium Project Declaration and the articles of
incorporation and bylaws therefor.
1.24 Condominium Project Association. The term "Condominium Project
Association" means the homeowners association formed to operate and govern a Condominium
Project.
1.25 Condominium Proiect Board. The term "Condominium Project Board" means the
governing body of a Condominium Project Association as established pursuant to the
Condominium Project Declaration and the articles of incorporation and bylaws for the
Condominium Project Association.
1.26 Condominium Proiect Common Area. The term "Condominium Project Common
Area" means the area within the boundaries of a Condominium Project owned by the
Condominium Project Association or collectively by all or some of the Owners of Residential
Lots within the Condominium Project in common and restricted to use primarily by such Owners
and such Owner's lessees and invitees.
1.27 Condominium Project Declaration. The term "Condominium Project
Declaration" means the covenants, conditions and restrictions recorded for a Condominium
Project.
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1.28 County. The term "County" means the County of San Diego.
1.29 Covered Property. The term "Covered Property" includes all of the real property
described in Exhibit "A" of this Declaration, and such Additional Property as may hereafter be
brought within the jurisdiction of this Declaration pursuant to a Supplementary Declaration.
1.30 Declarant. The term "Declarant" means-Real Estate Collateral Management
Company, a Delaware corporation, and its successors and assigns, if such successors and assigns
acquire any or all of Declarant's interest in the Covered Property for the purpose of purchase or
sale, and Declarant has expressly transferred or assigned to such successors or assigns its rights
and duties as Declarant to a portion or all of the La Costa Oaks Community. For any successor
or assignee of "Declarant" to be deemed a Declarant under the terms hereof, Declarant shall
record in the County a certificate so designating said successor or assignee as Declarant. A 2
successor Declarant shall also be deemed to include the beneficiary under any deed of trust £
securing an obligation from a then existing Declarant encumbering all or any portion of the o
Covered Property, which beneficiary has acquired any such property by foreclosure, power of /•»
sale or deed in lieu of such foreclosure or sale. J9
1.31 Declaration. The term "Declaration" means this Declaration of Covenants,
Conditions and Restrictions of La Costa Oaks, and any further amendments thereto.
1.32 Delegate. The term "Delegate" refers to a person elected in the manner provided
in the Community Bylaws to represent the collective voting power on certain issues of all of the
.Members within the Delegate District of such Delegate.
1.33 Delegate Districts. The term "Delegate District" refers to a particular portion of
the Covered Property which is represented by a Delegate and is created in the manner described
in the Section of the'Community Bylaws entitled "Delegate Districts."
1.34 ORE. The term "DRE" means and refers to the California Department of Real
Estate or any successor agency that is responsible for administering the sale of subdivided lands
pursuant to Sections 11000, et seq.. of the California Business and Professions Code, or any
similar statute hereinafter enacted.
1.35 Election Committee. The term "Election Committee" means and refer to the
committee appointed by the Community Board (or, if the Board so elects, the Community Board
acting as the Election Committee), to nominate candidates to the Community Board and to
perform other functions relating to election procedures as described in the Community
Governing Documents.
1.36 Eligible Holder. The term "Eligible Holder" means any First Mortgagee who has
given written notice to the Community Association specifying its name, address and the
Residential Lot number or address of the Residential Lot and requesting written notice of any or
all of the events specified in this Declaration.
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1.37 Federal Agencies. The term "Federal Agencies" refers collectively to one or
more of the following agencies and the following letter designation for such agencies shall mean
and refer to, respectively, the agency specified within the parentheses following such letter
designation: FHA (Federal Housing Administration), FHLMC (Federal Home Loan Mortgage
Corporation), FNMA (Federal National Mortgage Association), GNMA (Government National
Mortgage Association), and VA (United States Department of Veterans Affairs).
1.38 Final Maps. The term "Final Maps" refers to the final subdivision maps covering
all or any portion of the La Costa Oaks Community.
21.39 Fire Suppression Zones. The term 'Tire Suppression Zones" means the areas c
designated by the City as fire suppression zones. The Fire Suppression Zones will be designated •
in a Supplementary Declaration. 0
41.40 First Mortgage. The term "First Mortgage" means a first mortgage or deed of Q
trust which encumbers any one (1) or more Residential Lots and has priority over any other
mortgage or deed of trust encumbering such Residential Lot, and shall include any first mortgage
or deed of trust securing an obligation of Declarant, a Merchant Builder, or an Owner.
1.41 First Mortgagee. The term 'Tirst Mortgagee" means the Mortgagee of a First
Mortgage.
1.42 Fiscal Year. The term "Fiscal Year" means the fiscal accounting and reporting
period of the Community Association selected by the Community Board.
1.43 Governmental Agency. The term "Governmental Agency" means the City, the
County of San Diego and any other federal, state, local or municipal governmental entity or
quasi-governmental entity or agency including, without limitation, any special assessment
district, maintenance district or community facilities district having jurisdiction over the Covered
Property.
1.44 Habitat Preserve Areas. The term "Habitat Preserve Areas" means the areas
which have been designated by certain Governmental Agencies as habitat preserve areas
designated on Exhibit "C" attached hereto.
1.45 Habitat Preserve Adjacent Areas. The term "Habitat Preserve.Adjacent Areas"
means the portions of the Covered Property, which may include Residential Lots and
Community Association Property which are contiguous to or adjacent to the Habitat Preserve
Areas and which are subject to the Habitat Preserve Restrictions. The Habitat Preserve Adjacent
Areas will be designated in Supplementary Declarations.
1.46 Habitat Preserve Restrictions. The term "Habitat Preserve Restrictions" refers to
the restrictions imposed on the Habitat Preserve Areas specified in Exhibit "D", and any
additional restrictions imposed in a Supplementary Declaration.
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1.47 Improvements. The term "Improvements" refers to buildings, structures or
improvements of any type or kind constructed within the La Costa Oaks Community, including,
but not limited to, buildings, walkways, trails, utility installations, swimming pools and other
recreational facilities, garages and garage conversions, carports, roads, driveways, parking areas,
fences, screening walls, block walls, retaining walls, awnings, patio and balcony covers, stairs,
decks, landscaping, irrigation systems, antennae, the exterior surfaces of any visible structure
painting, hedges, windbreaks, railings, plantings, planted trees and shrubs, poles, signs, storage
areas, exterior and solar or wind-powered energy systems or equipment and water-softening,
heater or air conditioning and heating fixtures or equipment; the grading, excavation, filling or
similar disturbance to the surface of the land and any change or alteration of any previously
approved Improvement including any change of exterior appearance, color or texture.
1.48 Institutional Mortgagee. The term "Institutional Mortgagee" means a First R
Mortgagee which is (i) a bank, savings and loan association, insurance or mortgage company or o
other entity or institution chartered under federal and/or state law; (ii) an insurer or governmental ~.
guarantor of a First Mortgage; (iii) any federal or state agency; (iv) the State of California as the T
vendor under an installment land sales contract covering a Residential Lot; or (v) any other 1
institution specified by the Community Board in a recorded instrument, who is the Mortgagee of
a Mortgage or the beneficiary of a Deed of Trust encumbering a Residential Lot.
1.49 Invitee. The term "Invitee" means any person whose presence within the La
Costa Oaks Community is approved by or is at the request of a particular Owner, including, but
not limited to,, lessees, tenants and the family, guests, employees, licensees or invitees of
Owners, tenants or lessees.
1.50 La Costa Oaks Community. The term "La Costa Oaks Community" refers to the
Covered Property and all Improvements from time to time situated thereon.
1.51 Lot. The term "Lot" means any plot of land shown as a separate lot or parcel
upon any recorded Final Map or parcel map of any portion of the Covered Property.
1.52 Maintenance Obligations. The term "Maintenance Obligations" refers to the
Community Association's obligations to perform (i) all reasonable maintenance consistent with
the terms of the Community Association's Maintenance Manual, any maintenance obligations
and schedules in any warranty offered by Declarant or any manufacturer, and any maintenance
obligations and schedules otherwise provided to the Community Association or the Owners by
Declarant or any manufacturer, as applicable; and (ii) any commonly accepted maintenance
practices to prolong the life of the materials and construction of the Community Association
Property and Common Maintenance Areas, as applicable, as updated and amended from time to
time.
1.53 Member. The term "Member" means every person or entity who qualifies for
membership under this Declaration including Declarant, as long as Declarant qualifies for
membership under Article 3 of this Declaration.
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1.54 Merchant Builder or Merchant Builders. The term "Merchant Builder" or
"Merchant Builders" means any person or entity which acquired or has entered into a purchase
agreement to acquire from Declarant a portion of the La Costa Oaks Community for the purpose
of improving such property with Residences and conveying such Residences to purchasers under
authority of a Public Report in accordance with a Declaration of Development Covenants,
Conditions and Restrictions recorded against the Covered Property by Declarant in connection
with the conveyance to a Merchant Builder.
1.55 Mortgage. The term "Mortgage" means a deed of trust as well as a mortgage
encumbering a Residential Lot. o
1.56 Mortgagee. The term "Mortgagee" means the beneficiary of a deed of trust as 0
well as the mortgagee of a Mortgage. 3
4
1.57 Notice and Hearing. The term "Notice and Hearing" means the procedure which *
gives an Owner notice of an alleged violation of the Community Governing Documents and the ^
opportunity for a hearing before the Community Board.
1.58 Owner. The term "Owner" means the record owners, including Declarant and
Merchant Builders, of fee simple title to any Lot, including contract sellers, but excluding those
having such interests merely as security for the performance of an obligation.
1.59 Perimeter Walls and Fences. The term "Perimeter Walls and Fences" refers to the
walls and fences bordering portions of the La Costa Oaks Community designated in any
Supplementary Declaration which shall be maintained by the Community Association pursuant
to the provisions of this Declaration.
1.60 Person. The term "Person" means a natural individual or individuals or any other
entity with the legal right to hold title to real property. When the word "person" is not
capitalized, the word refers only to natural persons.
1.61 Phase. The term "Phase" means a group of Lots which are or have been made
1 subject to this Declaration and are designated by Declarant as a separate Phase by a document
' (which may be a Supplementary Declaration or another notice of annexation) executed by
i Declarant and recorded with the County Recorder of the County of San Diego. Should Declarant
not have made a contrary designation, each group of Residential Lots and any other Lots which
have been made subject to this Declaration and are covered by a separate Public Report (as
defined below) issued by the DRE or otherwise recognized by the California Real Estate
Commissioner as a separate Phase shall constitute a separate Phase.
1 1.62 Public Report. The term "Public Report" means the final subdivision public
report issued by the DRE for a Phase, including any amendments to such Public Report.
1.63 Public Use Areas. The term "Public Use Areas" means any portion of the
Community Association Property designated for public or quasi-public use as a condition of
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approval of any tentative map or Final Map for any part of the La Costa Oaks Community or as
required under the City Requirements or as otherwise required by any other Governmental
Agencies. Public Use Areas may include, without limitation, parcels designated for parks, open
space and trails. The Public Use Areas shall be designated by Declarant in a Supplementary
i Declaration.I
| 1-64 Recreational Vehicle Storage Area. The term "Recreational Vehicle Storage
Area" refers to Lot 210 of Final Map No. 99-04-03 which shall be conveyed to the Community
Association for recreational vehicle lot purposes as described in Section 7.16 of this Declaration.
' 1.65 Residence. The term "Residence" refers to each residential dwelling or
condominium situated within a Lot. r\
I 1.66 Residential Lot. The term "Residential Lot" refers to each Lot upon which a 8
1 Residence has been or is planned to be constructed and in the case of a Condominium, all 3
elements of a "unit", "residential unit" or "living unit" as such terms or similar terms may be A
used in a condominium plan or subdivision map recorded for said condominium pursuant to the *
California Civil Code. ^
1.67 Special Benefit Areas. The term "Special Benefit Areas" refers to the portions of
the Covered Property which directly receive a special benefit (which benefit may be in the form
of amenities provided or maintenance or other services offered) and for which additional
Assessments will be imposed on the Owners within the Special Benefit Areas who receive such
. special benefits pursuant to the provisions of this Declaration. The Special Benefit Areas shall
be described in a Supplementary Declaration.
1.68 Special Benefit Area Budget. The term "Special Benefit Area Budget" refers to
the elements of the budget for the Community Association which itemizes the cost components
to be assessed against portions of the Covered Property within a Special Benefit Area, as
provided in this Declaration and the Community Bylaws.
1.69 Special Benefit Maintenance Areas. The term "Special Benefit Maintenance
Areas" refers to those areas within a Special Benefit Area which will be maintained by the
Community Association. The Special Benefit Maintenance Areas shall be designated in a
Supplementary Declaration.
1.70 Supplementary Declaration. The term "Supplementary Declaration" means those
certain declarations of covenants, conditions and restrictions, or similar instruments which,
(a) annex any portion of the Additional Property and extend the plan of this Declaration to such
Additional Property and/or (b) identify any Special Benefit Areas and/or describe certain areas
within the Covered Property that are to be maintained by the Community Association and/or
(c) contain such other complementary additions and modifications as are provided in Article 12
the other provisions of this Declaration and/or (d) make technical or minor corrections to this
Declaration or any other previously recorded Supplementary Declaration. A Supplementary
Declaration may also be recorded by a Merchant Builder to set forth alternative dispute
resolution procedures governing disputes or claims between an Owner and a Merchant Builder,
which do not and will not include the Declarant or the Community Association.
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1.71 Telecommunication Facilities. The term "Telecommunication Facilities" means
equipment, cables, conduits, inner ducts, vaults, connecting hardware, wires, poles, transmitters,
antennae and other facilities and structures necessary for or used in the process of
Telecommunication Services.
1.72 Telecommunication Services. The term "Telecommunication Services" means
Telecommunication Facilities, Improvements and services for cable television, communication,
telecommunications, antennae, high-speed data, and all related vertical services, intranet,
internet, information transfer, transmission, video, and other similar services or technological
evolutions of the foregoing and any other Telecommunication Services identified in a
Supplementary Declaration.
21.73 Trail System. The term "Trail System" or 'Trail Systems" refers to any trail £
system within the Community Association Property or Common Maintenance Areas established 0
under the City Requirements which is required to be maintained either by the City or the 3
Community Association. The Trail Systems will be designated in a Supplementary Declaration. ^
1.74 Voting Power. The term "Voting Power" means the total number of votes ^
allocated to Residential Lots as set forth in the Section of Article 3 entitled "Classes of Voting
Membership".
ARTICLE 2.
PROPERTY RIGHTS IN RESIDENTIAL LOTS
AND COMMUNITY ASSOCIATION PROPERTY
In addition to the Residential Lots, there are many different types of areas within the La
Costa Oaks Community. Some of the areas consist of Community Association Property which
are areas actually owned by the Community Association. There are also areas known as
Common Maintenance Areas, which are areas over which the Community Association has
easements for maintenance. Many of these areas will be identified in Supplementary
Declarations to this Declaration. Each Owner's rights of enjoyment within the La Costa Oaks
Community, including in certain cases, the Residential Lots, are limited by some of the property
rights which are described in this Article.
2.1 Ownership of Community Association Property and Common Maintenance Area.
Fee title to the Community Association Property and the easement rights in the Common
Maintenance Area for each Phase of the Covered Property shall be conveyed to, accepted and
thereafter owned by the Community Association in accordance with a phasing plan to be
approved by the DRE as such phasing plan may be modified from time to time. The Community
Association must accept the conveyance of fee title to any Community Association Property or
easement rights in any Common Maintenance Area, and the Community Association shall
execute each such deed and any accompanying escrow instructions if requested to do so by
Declarant or a Merchant Builder. No Owner shall interfere with the exercise by the Community
Association, Declarant or a Merchant Builder of its rights or the fulfillment of its obligations
hereunder. Any such conveyances shall be made free and clear of all liens, except real property
taxes and assessments, which may be due after such conveyance, and shall be subject to any
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easements, covenants, conditions and reservations then of record, including, without limitation,
those set forth on any Final Map and this Declaration. Additionally, Declarant and a Merchant
Builder (with Declarant's written consent) shall have an easement and right of entry to enter the
Community Association Property to complete the construction of any landscaping or other
Improvements to be installed on the Community Association Property and Common
Maintenance Area or to perform any work under any warranties. Neither such construction nor
such maintenance shall in any way postpone the commencement of Community Assessments
pursuant to this Article or entitle a Member to claim any offset or reduction in the amount of
such Community Assessments.
2.2 Rights of Use of the Community Association Property and Common Maintenance
Areas. The .interest of each Owner in the use and benefit of the Community Association 2
Property and Common Maintenance Area shall be appurtenant to the Owner's Residential Lot g
subject to the Community Association's right to exercise exclusive jurisdiction and control over «
the Community Association Property and Common Maintenance Area and the other rights, *
restrictions and easements described in this Declaration, the City Requirements, any Final Map 4
and any other matters of record. The nature, design, quantity, quality and all other attributes of §
the Community Association Property and Common Maintenance Area, and the facilities and
amenities thereon, shall be determined by Declarant in Declarant's sole and absolute discretion
or by a Merchant Builder (with Declarant's written consent).
2.3 Owners' Easements of Enjoyment. Every Owner shall have a non-exclusive
easement for use and enjoyment in and to the Community Association Property and such right
shall be appurtenant to and shall pass, with the title to every Residential Lot, subject to the
provisions set forth below and any rights and restrictions set forth elsewhere in this Declaration
and the other Community Governing Documents and the Final Map and City Requirements. The
ownership interests in the Community Association Property and Residential Lots described in
this Article are subject to the easements granted and reserved in this Declaration. Each of the
easements reserved or granted herein shall be deemed to be established upon the recordation of
this Declaration and shall be covenants running with the land for the use and benefit of the
Owners, the Community Association and the Declarant. Individual grant deeds to Residential
Lots may, but shall not be required to, set forth the easements specified in this Declaration.
2.3.1 Limits on Users of Community Association Property. The Community
Association shall have the right to (a) limit the use of portions of the Community Association
Property except any portions designated as Public Use Areas solely to those Owners who own
Residential Lots or solely to those Owners who own Residential Lots within any applicable
Special Benefit Area, (b) limit or permit usage thereof by non-Members as the Community
Association deems appropriate and/or (c) permit members of the public to use portions of the
Community Association Property in addition to the areas designated as Public Use Areas. The
Community Association may limit the number of guests, invitees, tenants, permittees or agents
of Owners using the Community Association Property.
2.3.2 Suspend Rights of Members. The Community Association shall have the
right, after Notice and Hearing, to temporarily suspend the voting rights and right to use of the
(
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Community Association Property by an Owner pursuant to the terras of this Declaration and the
Community Handbook.
2.3.3 Dedicate or Grant Easements. The Community Association shall have the
right to dedicate or transfer or grant easements over all or any portion of the Community
Association Property to any Governmental Agency or other Persons for such purposes and
subject to such conditions as may be agreed to by the Community Association.
2.3.4 Borrow Funds. The Community Association shall have the right, in
accordance with the Community Governing Documents, to borrow money for the purpose of
improving, repairing or adding to the Community Association Property and for the
administration of the Community Association and its runcrion and to pledge personal property 9
assets of the Community Association for such loan. The Community Association may not g
encumber the Community Association Property with monetary liens unless the vote or written «
consent of two-thirds (2/3rds) of the Voting Power of the Community Association is. obtained *
except that the vote or written consent of the Members shall not be required for any municipal or
other similar financing offered by a Governmental Agency or for any borrowing that does not
exceed five percent (5%) of the gross budget (in the aggregate) for a Fiscal Year.
2.3.5 Entry by Community Association. The Community Association and the
Community Association's agents and employees shall have the right (but not the obligation) to
enter upon the Residential Lots (other than the interior of the Residence situated thereon) to
enforce the provisions of this Declaration or to perform its maintenance obligations under this
Declaration.
2.3.6 Restrictions on Use Imposed on Community Association Property. The
Community Association Property shall be subject to the restrictions set forth in the City
Requirements, including without limitation, open space easements or easements for access of the
property dedicated to the City upon the filing of record of the Final Maps covering all or any
portion of the Covered Property.
2.3.7 Hiking Trail System. A hiking trail system may be constructed within
certain portions of the Community Association Property and/or Common Maintenance Areas in a
location and based upon a design approved by the City ("Trail System") in connection with the
overall development of the La Costa Oaks Community. Declarant has dedicated to the City a
public access easement over portions of the Trail System included within the Public Use Areas
and the public shall have the right to use any portion of the Trail System which has been so
dedicated. The rights and obligations of Declarant and the City with regard to the Trail System
and the conditions of use, improvement and maintenance of the portions of the Trail System
included within the Public Use Areas are set forth in the recorded Final Maps covering the La
Costa Oaks Community and the other City Requirements.
2.3.8 Bicycle and Pedestrian Paths. The Community Association Property or
Common Maintenance Areas shall be subject to the right of the public to use any bicycle and
pedestrian paths included with the Public Use Areas which are dedicated to the City for public
use.
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2.3.9 Community Association Easement. The Community Association shall
have an easement over the Common Maintenance Areas in each Phase for performing its duties
and exercising its powers described in this Declaration, including, without limitation,
maintenance and refurbishment and replacement of the Common Maintenance Areas.
2.4 Establish Special Assessment District. The Community Association shall have
the right to establish, in cooperation with the City, a special assessment district for the
performance of all or a portion of the maintenance and other functions now within the
responsibility of the Community Association, together with the right of the Community
Association to convey, lease or otherwise transfer, subject to the provisions of this Declaration,
all or any portion of the Community Association Property to said district. In the event Declarant
or any Merchant Builder owns any portion of the Covered Property or the Additional Property, ^
the prior consent of the Declarant shall be obtained prior to the formation of any special «
assessment district. v
3
2.5 Encroachment. There are hereby reserved and granted for the benefit of each A
Residential Lot, as dominant tenement, over, under and across each other Residential Lot and <j
Community Association Property, as servient tenements, and for the benefit of the Community ^
Association Property, as dominant tenement, over, under and across each Residential Lot, as
servient tenement, non-exclusive easements for encroachment, support, occupancy and use of
such portions of Residential Lots and Community Association Property as are encroached upon,
used and occupied by the dominant tenement as a result of any original construction design,
accretion, erosion, addition, deterioration, decay, errors in original construction, movement,
settlement, shifting or subsidence of any building, structure, or other improvements or any
portion thereof, or any other cause. In the event any portion of the La Costa Oaks Community is
partially or totally destroyed, the encroachment easement shall exist for any replacement
structure which is rebuilt pursuant to the original construction design. The easement for the
maintenance of the encroaching improvement shall exist for as long as the encroachments exists;
provided, however, that no valid easement of encroachment shall be created due to the willful
misconduct of the Community Association or any Owner. Any easement of encroachment may,
but need not be, cured by repair and restoration of the structure.
2.6 Easements Reserved to Declarant, the Merchant Builders and/or Community
Association. There are hereby reserved the easements set forth below.
2.6.1 Master Telecommunications Easement. There is hereby reserved to
Declarant with the right to grant and transfer the same, for the benefit of Declarant (and, with the
written consent of Declarant, the Merchant Builders) and each of their respective agents,
subcontractors, invitees, employees and contractors, and for the benefit of their respective
successors and assigns, blanket easement (collectively, "Telecommunications Easements") over
the Covered Property for access and for purposes of constructing, installing, locating, altering,
operating, maintaining, inspecting, upgrading and enhancing Telecommunications Facilities
(collectively, 'Telecommunications Purposes") for the benefit of Declarant and its subsidiaries,
transferees, successors and assigns. Such easements are freely transferable. No one, except for
Declarant, and Declarant's transferees may use the Covered Property for Telecommunications
Purposes. All Telecommunications Facilities shall be owned, leased or licensed by Declarant, as
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determined by Declarant, in its sole discretion and business judgment. Transfer of the Covered
Property does not imply transfer of any Telecommunications Easements or Telecommunications
Facilities. The holders of the Telecommunications Easements may not exercise the rights
reserved in this Section in any manner which will unreasonably interfere with the reasonable use
and enjoyment of the Covered Property by any Owner. If the exercise of any
Telecommunications Easement results in damage to the Covered Property, then the easement
holder who caused the damage shall, within a reasonable period of time, repair such damage.
2.6.2 Master Cable Television Service Easement. There is hereby reserved to
Declarant with the right to grant and transfer the same, for the benefit of Declarant (and, with the
written consent of Declarant, the Merchant Builders) and each of their respective agents,
subcontractors, invitees, employees and contractors, and for the benefit of their respective 2
successors and assigns, nonexclusive easements for access and for purposes of constructing, g
installing, locating, altering, operating, maintaining, inspecting, upgrading and enhancing cable o
television system lines, facilities, and equipment. The community cable television lines, *
facilities and equipment may be owned, leased or licensed by Declarant, as determined by <
Declarant, in its sole discretion and business judgment. Transfer of all or any portion of the Q
j Covered Property does not imply the transfer of any such cable television lines, facilities or
I equipment located thereon. The holders of the easements reserved in this Section may not
1 exercise their rights hereunder in any manner which will unreasonably interfere with the
reasonable use and enjoyment of the Covered Property by any Owner.
2.6.3 Easement for Declarant and Merchant Builders Over Community
Association Property. Declarant hereby expressly reserves for the benefit of Declarant and all
Merchant Builders with the right to grant and transfer the same and each of their respective
agents, subcontractors, invitees, employees and contractors, and for the benefit of their respective
successors and assigns, a nonexclusive easement, in, to, and over the Community Association
Property for access, ingress, egress, use and enjoyment, in order to show the Covered Property or
Additional Property to Merchant Builders and other prospective purchasers, including, without
limitation, prospective purchasers of the Merchant Builders and to develop, construct, market,
sell, lease or otherwise dispose of the Covered Property or the Additional Property all as
provided in the Article hereof entitled "Development Rights." Such easement shall continue
until the last Close of Escrow under a Public Report in the Covered Property and the Additional
Property has occurred; provided, however, that such use shall not unreasonably interfere with the
rights of enjoyment of the other Owners as provided herein.
2.6.4 Irrigation Easements. Declarant hereby reserves for the benefit of
Declarant and the Community Association with the right to grant and transfer the same, and for
the benefit of their respective successors and assigns, a nonexclusive easement in, to and over the
Community Association Property and Common Maintenance Areas and any other areas
designated in a Supplementary Declaration for the installation, maintenance, repair and
replacement of irrigation and water lines for the benefit of the Community Association.
2.6.5 Easement Over the Common Maintenance Area on Lots. Declarant (and
with the written consent of Declarant, the Merchant Builders) reserve, for the benefit of the
Community Association, an easement over the portion of the Common Maintenance Area, if any,
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on the Lots for maintenance and over the remainder of the Lots for access, ingress and egress
necessary to perform such maintenance. No Owner may interfere with the exercise of the rights
under the easement reserved in this Section.
2.6.6 Drainage Easements. Declarant reserves for the benefit of the Covered
Property, the Owners, the Merchant Builders, and the Community Association, reciprocal
nonexclusive easements for drainage of water over, across and on the Covered Property.
2.6.7 Easements for Public Service Use. In addition to the foregoing easements,
Declarant reserves easements over the Covered Property for public services of the Governmental
Agencies, including but not limited to, the right of law enforcement and fire protection personnel
to enter upon any part of the Covered Property for the purpose of carrying out their official 0
duties. P
0
2.6.8 Perimeter Wall Easements. Declarant and each Merchant Builder reserves 3
for the benefit of the Community Association the following easements: A
Q
(a) An easement over all Lots abutting the Community Association y
Property owned by the Community Association, consisting of a three (3) foot wide strip of land
(or wider if and to the extent required by the size of the Perimeter Wall and Fence footing) along
the entire length of the property line separating such Lot from the Community Association
Property owned by the Community Association, for the purpose of accommodating the footings
and other structural components of any Perimeter Wall and Fence located on or immediately
adjacent to such property line, including any encroachments thereof onto the Lot; and
(b) An easement for access over such Lots reasonably necessary for
maintaining the Perimeter Walls and Fences and related Improvements.
2.6.9 Utilities. There is hereby reserved to Declarant and the Merchant
Builders, together with the right to grant and transfer the same, easements on, over, under,
through and across the Covered Property for the purpose of constructing, erecting, operating and
maintaining facilities and Improvements, including without limitation, easements for the
installation and maintenance of electric, telephone, cable television, water, gas, sanitary sewer
lines, and drainage facilities, roads, park areas, parkways and walkways as may be shown on any
recorded subdivision or parcel maps of the Covered Property or as are required by the City or
County of San Diego or any other Governmental Agencies.
2.6.10 Community Association Easements. There is hereby reserved to
Declarant, the Community Association and their duly authorized agents and representatives, such
easements over the Covered Property as are necessary to perform the duties and obligations of
the Community Association as are set forth in the Community Governing Documents.
2.6.11 Storm Water Compliance Easements. There is hereby reserved to the
Community Association, the Declarant and the Merchant Builders, the easements necessary to
exercise their rights to enforce an Owner's compliance with any storm water requirements
imposed by any Governmental Agencies as provided in Section 7.24 of this Declaration.
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2.7 Amendment to Eliminate Easements. This Declaration cannot be amended to
modify or eliminate the easements reserved to Declarant and the Merchant Builder herein
without prior written approval of Declarant and any attempt to do so shall have no effect. Any
attempt to modify or eliminate this Article shall, for so long as Declarant or any Merchant
Builder owns any portion of the Covered Property or Additional Property, also require the prior
written approval of Declarant.
ARTICLE 3
MEMBERSHIP AND VOTING RIGHTS IN COMMUNITY ASSOCIATION
Each Owner of a Residential Lot is a Member of the Community Association. The 2
success of the La Costa Oaks Community is dependent, in part, upon each Owner's participation £
in the activities of the Community Association. Initially, there are different classes of «
membership within the La Costa Oaks Community. The qualifications for membership for all £
Owners, including the Declarant, are described in this Article. 0
03.1 Ownership of Residential Lots. Ownership of each Residential Lot within the La
Costa Oaks Community shall include (a) a membership in the Community Association and
(b) subject to the provisions of this Declaration and any Final Maps and other City Requirements
exclusive or non-exclusive easement or easements appurtenant to such Residential Lot over the
Community Association Property as described in this Declaration and the deed to the Residential
Lot.
3.2 Membership.
3.2.1 Qualifications. Members of the Community Association shall be
(i) Declarant (irrespective of whether Declarant is the Owner of a Residential Lot) , for so long
as Declarant is entitled to either cast a Class C vote pursuant to the Section of this Article entitled
"Class C Membership" or cast votes on behalf of any Merchant Builders, and (ii) each Owner
(including Declarant and any Merchant Builder) of one (1) or more Residential Lots in the La
Costa Oaks Community. Ownership of a Residential Lot shall be the sole qualification for an
Owner's membership in the Community Association.
3.2.2 Transfer of Membership. All memberships in the Community Association
held by Owners, other than Declarant, shall be appurtenant to the Residential Lot owned by each
Owner and shall not be transferred, pledged or alienated, in any way, except upon the transfer of
title to the Owner's Residential Lot. Declarant's Class C membership may not be transferred
except to a successor to Declarant's rights to all or a portion of the Additional Property. Transfer
of Declarant's Class C membership shall be evidenced by the recordation in the Office of the
County Recorder of San Diego County of an Assignment of Declarant's Rights. Any attempt to •
make a prohibited membership transfer shall be void and will not be reflected on the books of the
Community Association.
3.2.3 Assignment of Right of Use. A Member shall have the right to assign, in
accordance with the Community Bylaws, an Owner's rights of use and enjoyment to the
Community Association Property to a lessee or tenant of an Owner's Residential Lot; provided,
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however, that such Member shall not also be entitled to the use and enjoyment of the recreational
facilities, if any, located on the Community Association Property during the term of the
assignment. The assigning Member shall remain liable for all charges and assessments
attributable to the Owner's Residential Lot. A Member who has sold his or her Residential Lot
to a contract purchaser under an agreement to purchase shall be entitled to assign to the contract
purchaser his or her membership rights in the Community Association. Such assignment shall be
in writing and shall be delivered to the Community Board before such contract purchaser may
vote. However, the contract seller shall remain liable for all charges and assessments attributable
to his or her Residential Lot until fee title to the Residential Lot is transferred.
3.2.4 Transfer of Membership Upon Sale. If the Owner of any Residential Lot
fails or refuses to transfer the membership registered in his or her name to the purchaser of such I
Residential Lot upon transfer of fee title thereto, the Community Board shall have the right to 5
record the transfer upon the books of the Community Association. The Community Association 3
will levy a transfer fee against new Owners in the amount of the actual costs incurred by the r
Community Association to change its records and their Residential Lots in order to reimburse the
Community Association for the costs of transferring the memberships to the new Owners on the 1
records of the Community Association.
3.3 Classes of Voting Membership. The Community Association shall have three
(3) classes of voting membership which are described below.
3.3.1 Class A Membership. Class A Members shall originally be all Owners of
Residential Lots with the exception of Declarant and the Merchant Builders, for so long as there
exists a Class B membership. Upon termination of the Class B membership, Declarant and
Merchant Builders shall be Class A Members for so long as they own Residential Lots subject to
this Declaration. Each Owner will be entitled to cast one (1) vote for each Residential Lot.
3.3.2 Class B Membership. The Class B Member shall be the Declarant who
shall be entitled to three (3) votes for each Residential Lot owned by Declarant and Merchant
Builders in a Phase for which assessments have commenced. Declarant shall cast all votes on
behalf of Declarant and any Merchant Builders who.have assigned their rights to Declarant. The
Class B membership shall cease and be converted to Class A membership on the happening of
any of the following events, whichever occurs earliest:
(a) When six hundred thirty-three (633) Residential Lots representing
seventy-five percent (75%) of the Residences permitted to be developed by the City for the La
Costa Oaks Community have been conveyed to Class A Members;
(b) On the fifth anniversary following the first close of escrow within
a Phase covered by the most recently issued Public Report;
(c) On the twentieth anniversary of the first conveyance of a
Residential Lot to a Class A Member in the La Costa Oaks Community under authority of a
Public Report.
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3.3.3 Class C Membership. The Class C Member shall be Declarant (whether
or not Declarant is an Owner). The Class C membership shall not be considered a part of the
Voting Power of the Community Association and Declarant shall not be entitled to exercise any
Class C votes except for the purpose of electing a majority of the members of the Community
Board pursuant to the provisions set forth below. The Class C Member shall be entitled to solely
elect a majority of the members of the Community Board until the date which is the earlier to
occur of:
(a) When six hundred thirty-three (633) Residential Lots which
represents seventy-five percent (75%) of the Residences permitted to be developed by the City
for the La Costa Oaks Community have been conveyed to Class A Members;
(b) On the fifth anniversary following the first close of escrow within g
a Phase covered by the most recently issued Public Report; or 3
(c) On the twentieth (20th) anniversary of the first conveyance of a 5
Residential Lot to a Class A Member in the La Costa Oaks Community. 2
3.4 Declarant's Right to Select Director. In any election of Directors after the Class
C membership has been terminated, so long as Declarant owns any of the Annexable Property or
a Merchant Builder owns any of the Covered Property, the Community Board shall adopt special
procedures to ensure that at least one (1) Community Director is selected by Declarant. A
representative to the Community Board selected by the Declarant pursuant to the provisions of
. this Section may be removed prior to the expiration of his or her term of office only with the
consent of Declarant.
3.5 Continuing Approval of Declarant. Notwithstanding the foregoing, and without
limiting Declarant's unilateral rights provided elsewhere in this Declaration or the Community
Bylaws, even after the termination of Class "B" membership, and until such time as Owners,
other than Declarant and Merchant Builders own at least seventy-five percent (75%) of the
Residential Lots within the La Costa Oaks Community, or until the twentieth (20th) anniversary
of the first Close of Escrow of a Residential Lot, whichever occurs first, the approval of
Declarant shall be required before the Community Association may take any permitted action
with respect to the following:
3.5.1 Reduction in the level of, or change in allocation of responsibility for
(a) maintenance of and repairs to all or part of any Community Association Property subject to
this Declaration, (b) any other maintenance obligations of the Community Association set forth
in this Declaration, and (c) any responsibilities for maintaining circulation within the La Costa
Oaks Community set forth in this Declaration;
3.5.2 Conveyance by the Community Association of all or any portion of the
Community Association Property;
3.5.3 Annexation to the Community Association of any of the Additional
Property.
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3.5.4 Alteration in the method of fixing and collecting Assessments or any
increase in Assessments beyond the amounts permitted under Section 5.5 of this Declaration.;
3.5.5 Modification, enforcement and review procedures of the Architectural
Committee or any change in the architectural and landscaping design;
3.5.6 The creation of a Special Benefits Area as provided in this Declaration;
3.5.7 Modifications to Improvements on the Community Association Property
or to the level or frequency of maintenance of the Community Association Property;
13.5.8 The obligation to provide Declarant with inspection reports; £
0
3.5.9 Reduction or modification of any easement or other rights reserved to 3
Declarant or any Merchant Builders under this Declaration; C
3.5.10 Alteration in the method of enforcing the provisions of this Declaration; 3
and
3.5.11 Amendments to this Declaration or the Community Governing
Documents which would diminish or otherwise affect Declarant's or any Merchant Builder's
right of approval regarding the actions enumerated above, s^
3.6 Special Benefit Area Approvals. Notwithstanding any other provisions of the
Community Governing Documents, any action expressly for the benefit of or imposing an
obligation only upon a Special Benefit Area or the Owners of Lots within the Special Benefit
Area which requires a vote of the Members, shall require the approval of the prescribed
percentage of the class or classes of Members or the approval of Members of only those Owners
within the Special Benefit Area, except as otherwise provided in Section 5.4.5 of this
Declaration.
3.7 Commencement of Voting Rights. An Owner's right to vote, including Declarant
or a Merchant Builder, shall not vest until Assessments have been levied upon such Owner's
Residential Lot as provided in this Declaration. All voting rights shall be subject to the
restrictions and limitations provided for herein and in the Community Governing Documents.
Notwithstanding the foregoing, Declarant shall have the right to cast any votes assigned to
Declarant by a Merchant Builder.
ARTICLE 4
POWERS AND DUTIES OF THE COMMUNITY ASSOCIATION
The Community Association will govern the La Costa Oaks Community and as the
governing body -will have certain powers and duties which are described below.
4.1 Powers of Community Association. The Community Association shall have all
the powers of a nonprofit corporation organized under the Nonprofit Mutual Benefit Corporation
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Law of California subject only to such limitations on the exercise of such powers as are set forth
in the Community Articles, the Community Bylaws and this Declaration. It shall have the power
to do any lawful thing that may be authorized, required, or permitted to be done by the
Community Association under this Declaration, the Community Articles and the Community
Bylaws, and to do and perform any act that may be necessary or proper for or incidental to, the
exercise of any of the express powers of the Community Association, including, without
limitation, the powers set forth below. If the Community Association as a corporate entity is
dissolved, a non-profit unincorporated association shall forthwith and without further action or
notice be formed to succeed to all of the rights and duties of said Community Association
hereunder. The affairs of such unincorporated association shall be governed by the Community n
Bylaws and this Declaration as if they were created for the purpose of governing the affairs of an £
unincorporated association. 0
34.1.1 Delegation of Powers; Professional Management. The Community r
Association acting by and through the Community Board can delegate its powers, duties, and .
responsibilities to committees or employees, including a professional managing agent T
("Manager"), subject to the requirements of the Section of Article 13 entitled "Professional
Management."
4.1.2 Right of Entry and Enforcement. Except in the case of emergencies in
which case no prior notice need be given, the Community Board or any authorized representative
thereof shall have the right, upon forty-eight (48) hours prior notice and during reasonable hours,
to enter upon any Residential Lot (other than the interior of a Residence) for the purpose of
construction, maintenance or emergency repair. Such persons shall not be deemed guilty of
trespass by reason of such entry. If the cost of such maintenance or repair relate to
Improvements otherwise required to be maintained by the Owner, the costs of such repair shall
be assessed against said Owner as an Enforcement Assessment in accordance with the provisions
of Article 5 hereof.
4.1.3 Easements and Rights of Way. The Community Association, acting by
and through the Community Board, may grant and convey to any third party easements and
licenses for use and rights of way in, on, over or under any Community Association Property,
conveyed or otherwise transferred to said Community Association or under its jurisdiction in
accordance with the provisions of this Declaration.
4.1.4 Dedication. The Community Association, acting by and through the
Community Board, may dedicate any of its property to an appropriate public authority for public
use as provided for in this Declaration.
4.1.5 Capital Improvements. The Community Board may, on its own motion or
acting on a petition signed by a majority of the Owners, approve the construction, installation or
acquisition of a particular capital improvement to the Community Association Property or
Common Maintenance Areas, subject to the limitations set forth in Section 4.3.7 of this
Declaration.
4.1.6 Enter Into Maintenance, Subsidy Agreements and/or Use Agreements.
Notwithstanding any other provisions of this Declaration or the Community Bylaws regarding
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the term and termination of contracts with Declarant or Merchant Builders for providing services
to the Community Association, Declarant (and any Merchant Builder with the written consent of
Declarant) may enter into one or more written maintenance agreements with the Community
Association under which Declarant (or such Merchant Builder, as the case may be) shall pay all
or any portion of the Common Expenses and perform all or any portion of the Community
Association's maintenance responsibilities in exchange for a temporary suspension of all or a
portion of the Regular Assessments. Each such maintenance agreement shall be for a term and
shall be on such conditions as are approved by the DRE, and may require Owners to reimburse
Declarant or any of such Merchant Builders, through the Community Association, for a portion
of the costs expended in satisfaction of Common Expenses. The Community Association shall
also have the power to enter into agreements for the use of the Community Association Property.
24.1.7 Right of Enforcement and Notice and Hearing. C
(a) Enforcement Actions. The Community Association, in its own 6
name and on its own behalf, or on behalf of any Owner who consents, shall have the power but 5
not the duty to commence and maintain actions for damages or to restrain and enjoin any actual C
or threatened breach of any provision of the Community Governing Documents or any
resolutions of the Community Board, and to enforce by mandatory injunction, or otherwise, all
of these provisions. In addition, the Community Association can temporarily suspend the
membership rights and privileges and/or can assess monetary penalties against any Owner or
other person entitled to exercise such rights or privileges for any violation of the Community
Governing Documents or Community Board resolutions.
(b) Notice Requirements. Before a decision to impose such a
suspension and/or monetary penalties is reached by the Community Board, at least fifteen (15)
days written notice of suspension or imposition of monetary penalties and the reasons therefor
must be given to the Owner of such suspension or imposition of a penalty or any such longer
period as may be required under California Corporations Code Section 7341, or any successor
statute or law. Additionally, before the Community Board decides to impose a suspension of
privileges and/or impose a monetary penalty, the aggrieved Owner shall be provided with an
opportunity to be heard by the Community Board.
(c) Delegation. The Community Board shall have the right to appoint
a committee to hear any actions brought against an Owner for a violation of the Community
Governing Documents, and to take actions on behalf of the Community Board in connection
with an enforcement action.
4.1.8 Contract for Goods and Services. The Community Association shall have
the power to contract for goods and services for the benefit of the Community Association
Property, Common Maintenance Areas, Special Benefit Areas and other portion of the La Costa
Oaks Community necessary for the Community Association to perform its duties and obligations
hereunder including, without limitation, legal and accounting services necessary or proper in
operating the Community Association Property, Common Maintenance Areas and Special
Benefit Areas or in enforcing the Community Governing Documents, and performing any of the
other Community Association duties or rights, subject to the limitations set forth below.
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4.1.9 Litigation. The Community Association shall have the power, but not the
duty, to initiate, defend, settle or intervene in mediation, arbitration, judicial or administrative
proceedings on behalf of the Community Association in matters pertaining to (a) the application
or enforcement of the Community Governing Documents and (b) damage to the Community
Association Property, Common Maintenance Areas and Special Benefit Areas. Any recovery by
the Community Association with respect to any damage to or defect in the Community
Association Property and Common Maintenance Areas shall be utilized solely for the purpose of
paying for the costs of obtaining the recovery and for correcting such Community Association
Property and Common Maintenance Areas damage or defect and such proceeds shall be applied
(a) first, for the purpose of repairing such defects, (b) second, for replacing Reserve Funds
previously utilized by the Community Association to cause such repairs and (c) then to the costs
of such litigation. The Community Association and not the individual Members shall have the 2
power to pursue any claims or other actions using the non-adversarial proceedings for C
construction defects to the Community Association Property or the Common Maintenance Area «
pursuant to Civil Code Section 895 et seq. and any successor statute or laws. ~
5
4.1.10 DRE. The Community Association shall have the power to enter into g
contracts approved by the DRE.
4.1.11 Telecommunications Contract. Notwithstanding anything in this
Declaration to the contrary, the Community Association shall have the power to enter into,
accept an assignment of, or otherwise cause the Community Association to comply with the
terms and provisions of an exclusive telecommunications services contract
('Telecommunications Contract") with a telecommunications service provider ("Service
Provider"), pursuant to which the Service Provider shall serve as the exclusive provider of
Telecommunications Services to each Residential Lot in the Covered Property. The Community
Board shall only enter into, accept an assignment of, or otherwise cause the Community
Association to comply with the terms and provisions of the Telecommunications Contract if the
Community Board determines, in its prudent business judgment, that such action is in the best
interests of the Community Association. Although not exhaustive, a contract that satisfies the
following requirements shall be deemed to be within the best interests of the Community
Association.
(a) Initial Term and Extensions. The initial term of the
Telecommunications Contract does not exceed two (2) years, and, if the Telecommunications
Contract provides for automatic extensions, the length of each such extension does not exceed
five (5) years;
(b) Termination. The Telecommunications Contract provides that:
(i) at least six (6) months prior to the expiration of either the initial or any extended term of the
Telecommunications Contract, the entire membership of the Community Association may,
without cause, by a sixty percent (60%) vote, prevent any automatic extension that the
Telecommunications Contract may provide for, and thereby allow the Telecommunications
Contract to expire, and (ii) at any time, the Community Board may terminate the
Telecommunications Contract if, in the sole discretion of the Community Board, the Service
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Provider fails to provide quality, state-of-the-art Telecommunications Service or the
I Telecommunications Contract becomes economically obsolete;
I
I (c) Fees. The monthly fee charged to the Community Association by
| the Service Provider for the provision of the Telecommunications Services to all of the
Residential Lots represents a discount from the comparable retail fees charged by the Service
Provider in the general geographic area in which the Covered Property is located, and, if so, the
amount of such discount;
(d) Installation of Telecommunications Facilities. The Service
Provider is solely responsible for the installation, and the cost thereof, of all of the
Telecommunications Facilities necessary to provide Telecommunications Services to each 2
Residential Lot; and C
(e) Removal of Telecommunications Facilities. The Service Provider w
has the right to remove the Telecommunications Facilities upon expiration or termination of the 5
Telecommunications Contract. 7
4.1.12 Claims and Actions. Subject to the provisions of this Declaration, the
Community Association shall have the power, but not the duty, to initiate, defend, settle or
1 intervene in mediation, arbitration, judicial or administrative proceedings on behalf of the
1 Community Association in matters pertaining to (a) the application or enforcement of this
, Declaration and (b) damage to the Community Association Property or the Common
Maintenance Area; provided, however, that from and after the date which is five (5) years after
the date of the first conveyance of a Residential Lot to an Owner under a Public Report within
I the Additional Property ("Relinquishment Date"), no representative of Declarant on the Board
shall vote on the initiation of any claim under California Civil Code Section 895 et seq.
Notwithstanding the foregoing, Declarant may relinquish such control at an earlier date, in the
sole discretion of Declarant. Declarant shall have no control over the Community Association's
ability to decide whether to initiate a claim under such statutory provisions and in the event of
such a vote, the affirmative vote of the two non-Declarant representatives on the Community
Board shall be binding so long as a quorum of the Community Board is present at any meeting
where such vote is taken. The Community Association and not the individual members shall
have the power to pursue any claims or other actions using the non-adversarial procedures for
construction defects in the Community Association Property or the Common Maintenance Area
pursuant to Civil Code Section 895 et seq., or any successor statutes or laws.
4.2 Duties of the Community Association. In addition to the powers delegated to it
by its Community Articles or the Community Bylaws, and without limiting their generality, the
Community Association, acting by and through the Community Board, has the obligation to
conduct all business affairs of common interest to all Owners, including without limitation, each
of the duties set forth below.
4.2.1 Taxes and Assessments. The Community Association shall have the duty
to pay all real and personal property taxes and assessments and all other taxes levied against the
Community Association Property, personal property owned by the Community Association or
against the Community Association. Such taxes and assessments may be contested by the
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Community Association; provided, that they are paid or that a bond insuring payment is posted
before the sale or the disposition of any property to satisfy the. payment of such taxes.
4.2.2 Maintenance of La Costa Oaks Community. The Community Association
shall have the duty to accept fee simple and easement title to and to maintain and repair the
Community Association Property, Common Maintenance Area and any other portions of the La
Costa Oaks Community required to be maintained by the Community Association pursuant to
the provisions of this Declaration or any Supplementary Declaration in a good order and repair,
and subject to the provisions of this Declaration and the City Requirements. All of such
obligations shall be discharged when and in such manner as the Community Board determines in
its judgment to be appropriate, provided that the Community Association shall conform with the
, requirements of any agreements entered into between Declarant or any Merchant Builder and a 2
I Governmental Agency pertaining to the Community Association Property and Common c
I Maintenance Area, including without limitation, any agreements providing for maintenance of «
Public Use Areas by the Community Association. «'. - 5
i 4.2.3 Insurance. The Community Association shall have the duty to obtain, 0
I from reputable insurance companies and maintain the insurance described in the Article hereof
entitled "Insurance and Condemnation."
, 4.2.4 Audit. The Community Association shall have the power and duty to
i permit any Owner, who may be accompanied by an accountant or other consultant, at said
Owner's sole expense to audit or inspect the Community Association's books and records;
provided that such audit or inspections are made during normal business hours and without
unnecessary interference with the operations of the manager or the Community Association.
4.2.5 Community Assessments. The Community Association shall establish,
determine, levy, collect and enforce all Assessments and cause to be prepared all budgets and
financial statements and establish and maintain a working capital and contingency fund as
required by the Community Governing Documents.
4.2.6 Utility Services. The Community Association shall obtain utility services
necessary or desirable, for the benefit of the Community Association Property and Common
Maintenance Areas including, but not limited to, water, gas, electricity, telephone, refuse
collection, sewage disposal and other services necessary to perform its other obligations under
this Declaration.
4.2.7 Architectural Control. The Community Association shall have the duty to
promulgate architectural standards and procedures as set forth in the Community Design
Standards and appoint the Architectural Committee in connection therewith in accordance with
the provisions of Article 6 of this Declaration.
4.2.8 Community Handbook. The Community Association shall adopt, amend,
and repeal such rules and regulations as it deems reasonable. The Community Handbook shall
govern such matters in furtherance of the purposes of the Community Association, including,
without limitation, the use of the Community Association Property and Common Maintenance
Area; provided, however, that the Community Handbook may not discriminate (except to the
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extent the Community Handbook addresses special restrictions or procedures which are imposed
on Owners within a Special Benefit Area). In the event of any conflict between the Community
Handbook and any other provisions of the other Community Governing Documents, the
provisions of the Community Handbook shall be superseded by the provisions of the other
Community Governing Documents to the extent of any such inconsistency.
4.2.9 Special Benefit Areas Administration. The Community Association shall
i administer and perform any obligations associated with any Special Benefit Areas created
1 pursuant to this Declaration.
4.2.10 Maintenance Manual. The Community Association shall maintain at the
offices of the Community Association a copy of the Maintenance Manual provided by the
Declarant to the Community Association and shall have the duty to comply with all requirements
and follow all maintenance schedules set forth in the Association's Maintenance Manual.
4.2.11 Members1 Approval of Certain Actions. In the event that any claim or
other actions brought by the Association or other applicable law under California Civil Code
Section 895 et seq., and any successor statutes or laws, or other applicable laws, involving
i allegations of construction defects relating to the Community Association Property or the
1 Common Maintenance Area is not resolved pursuant to the non-adversarial procedures set forth
in California Civil Code Sections 910 through 938, and any successor statutes or laws, the
Community Association shall not initiate a further action or procedure against Declarant under
Section 15.4 or otherwise without first obtaining the consent of the Owners other than Declarant,
.constituting a quorum of more than fifty percent (50%) of the Owners of the Community
Association casting a majority of the votes at a meeting or election of the Community
Association conducted in accordance with the provisions of California Corporations Code
Sections 7510 et seq. and 7613 and any successor statutes or laws.
4.2.12 Use of Proceeds to Repair. If the Community Association receives, on its
own behalf or for the benefit of the Owners, any proceeds as a result of any construction defect
or other claims brought by the Community Association relating to repair or maintenance of the
Community Association Property or the Common Maintenance Areas, then the Community
Association shall apply such proceeds first for the purpose of making the repairs or replacing
reserve funds previously utilized by the Community Association to cause such repairs and then
to the costs of such litigation. Any excess proceeds shall be applied as determined by the
Community Board, subject to any requirements established by the non-profit mutual benefit laws
of the State of California and any other applicable laws.
4.3 Prohibited Activities. Notwithstanding any other provisions of this Declaration or
the other Community Governing Documents, the Community Association is expressly prohibited
from undertaking or performing any of the following activities, or expending or otherwise
utilizing Community Association funds or resources therefor, and the Community Association
shall be prohibited from undertaking the following activities.
4.3.1 Property Manager. For so long as Declarant's Class C votes are in effect,
the Community Association shall not discontinue the management of the Community
Association by a professional, certified or accredited management company. After Declarant's
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Class C votes are no longer in effect the Community Association shall not discontinue the
management of the Community Association by a professional, and certified or accredited
management company without the vote of (a) Declarant, so long as Declarant or any Merchant
Builder owns any Lot within the Covered Property, or Additional Property and (b) a vote of
sixty-six and two thirds (66 2/3rds) of the Voting Power of the Community Association. If the
Community Association votes to discontinue the management of the Community Association by
a certified or accredited professional manager in accordance with the procedures set forth above,
then any replacement manager shall have at least five (5) years experience in the management of
planned communities and shall have earned accreditation or certification from a professional
association management organization such as the Professional Community Association of
Managers designation from the Community Association Institute. Nothing contained herein 0
shall limit the Community Association from hiring other employees for the Covered Property. £
4.3.2 Offsite Nuisances. The Community Association shall not use any 3
assessments or expend Community Association funds or resources to abate any annoyance or fj
nuisance emanating from outside the physical boundaries of Phases in which Assessments have n
commenced. ^
4.3.3 Political Activities or Contributions. The Community Association shall
not engage in any federal, state or local political activities or activities intended to influence a
governmental action affecting areas outside the boundaries of the Covered Property (e.g.,
endorsement or support of (a) legislative or administrative actions by a Governmental Agency
which affect persons or property outside the Covered Property, (b) candidates for elected or
appointed office, and (c) initiatives, recall elections or other ballot proposals). The Community
Association is prohibited from conducting, sponsoring, participating in or expending funds or
resources on any activity, campaign or event, including without limitation any social or political
campaign, event or activity, which does not directly and exclusively pertain to any of the powers
and duties of the Community Association.
4.3.4 Subassociation or Cost Center. For so long as Declarant has the rights
under Sections 3.3.3 and 3.4 of this Declaration, neither the Community Association nor any
Owner nor any Merchant Builder, without the prior written consent of Declarant, shall (a) form
an association (as defined in Section 135 l(a) of the California Civil Code) to manage any portion
of the Covered Property or (b) create a cost Special Benefits Area or other such device to
apportion any Common Expenses of the Community Association against fewer than all of the
Owners and their Lots.
4.3.5 Mortgagee Consents. For so long as Declarant has the voting rights under
Sections 3.3.3 and 3.4 of this Declaration, the Community Association may not, without the prior
written consent of Declarant, take any action listed in Section 13.4 of the Declaration for which
the consent of Owners or First Mortgagees is required.
4.3.6 Reserved Rights of Declarant and Merchant Builders. For so long, as
Declarant or any Merchant Builder is entitled to exercise any right, or avail itself of any
exemption, in Article 11 or elsewhere in this Declaration or the Community Governing
Documents, neither the Community Association, nor the Community Board, nor any Owner shall
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take any action which is inconsistent with, or which would abrogate, any such right or
exemption.
4.3.7 Limitations on Authority of Community Board. The Community Board
shall not take any of the actions listed below except with the vote or written consent of: (a) a
majority of the Members of each of Class A and Class B during the time the two-class voting
structure set forth in Article 3 of this Declaration is in effect-, or (b) except with the vote at a
meeting of the Community Association or by written ballot without a meeting pursuant to
Corporations Code Section 7513 of at least a majority of the Members of the Community
Association including at least a majority of Community Association Members other than
Declarant after conversion to a single Class A voting membership.2(a) Limit on Capital Improvements. The Community Board shall not, c
without obtaining the consent of the Members as set forth above, incur aggregate expenditures «
for capital improvements to the Community Association Property or Common Maintenance «
Areas in any fiscal year in excess of five percent (5%) of the budgeted gross expenses of the 0
Community Association for that Fiscal Year.
(b) Limit on Sales of Community Association Property. The
Community Board shall not, without obtaining the consent of the Members as set forth above,
sell during any fiscal year property of the Community Association having an aggregate fair
market value greater than five percent (5%) of the budgeted gross expenses of the Community
Association for that Fiscal Year.
(c) Limit on Third Person Contracts. The Community Board shall not,
without obtaining the consent of the Members as set forth above, enter into a contract with a
third person (other than a Governmental Agency) wherein the third person will furnish goods or
services for the Community Association Property or the Common Maintenance Areas to the
Community Association for a term longer than one year with the following exceptions:
(i) A contract with a public utility company if the rates
charged for the materials or services are regulated by the Public Utilities Commission; provided,
however, that the term of the contract shall not exceed the shortest term for which the supplier
will contract at the regulated rate;
(ii) A prepaid casualty and/or liability insurance policy not to
exceed three (3) years duration; provided that the policy permits short-rate cancellation by the
insured;
(iii)Except as otherwise provided in this Declaration, a contract
for a term not to exceed three (3) years that is terminable by the Community Association after no
longer than one year without cause, penalty or other obligations upon ninety (90) days written
notice of termination to the other party;
(iv)A Telecommunications Contract under Section 4.1.11 of
this Declaration; and
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(v) Any contract approved by the DRE.
4.3.8 Nonliability.
(a) General Rule. No Person is liable to any other Person (other than
the Community Association or a party claiming in the name of the Community Association) for
injuries or damage resulting from such Person's Official..Acts, except to the extent that such
injuries or damage result from the Person's willful or malicious misconduct. No Person is liable
to the Community Association (or to any party claiming in the name of the Community
Association) for injuries or damage resulting from such Person's Official Acts, except to the
extent that such injuries or damage result from such Person's negligence or willful or malicious
misconduct. The Community Association is not liable for damage to property in the Community 2
Property unless caused by the negligence of the Community Association, the Community Board, fi
the Community Association's officers, or the manager or the manager's staff of the Community o
Association. *
0
(b) Nonliability of Volunteer Community Board Members and 2
Officers. A volunteer Community Board member or volunteer Community Association officer
shall not be personally liable to any Person who suffers injury, including bodily injury, emotional
distress, wrongful death or property damage or loss as a result of the tortious act or omission of
the volunteer officer or Community Board member if all applicable conditions specified in
Section 1365.7 of the California Civil Code are met.
4.3.9 Scope of Powers and Standard of Care.
(a) General Scope of Powers. Unless a duty to act is imposed on the
Community Board, the Architectural Committee or other committees or representatives of the
Community Association by this Declaration or law, the Community Board, the Architectural
Review Committee and the committees have the right to decide to act or not act. Any decision to
not act is not a waiver of the right to act in the future.
(b) Business Affairs. This Section applies to Community Board
member actions in connection with management, personnel, maintenance and operations,
insurance, contracts and finances, and Architectural Review Committee member actions. Each
Community Board member shall perform his or her duties in good faith, in a manner the
Community Board member believes to be in the best interests of the Community Association and
with such care, including reasonable inquiry, as an ordinarily prudent person in a like position
would use under similar circumstances. When performing his or her duties, a Community Board
member is entitled to rely on information, opinions, reports or statements, including financial
data prepared or presented by:
(i) One or more officers or employees of the Community
Association whom the Community Board member believes to be reliable and competent in the
matters presented;
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(ii) Counsel, independent accountants or other Persons as to
matters which the Community Board member believes to be within such Person's professional or
expert competence; or
| (iii)A committee of the Community Board upon which the
Community Board member does not serve, as to matters under its designated authority, which
committee the Community Board member believes to merit confidence, so long as the
Community Board member acts in good faith, after reasonable inquiry when the need is
I indicated by the circumstances and without knowledge that would cause such reliance to be
I unwarranted.
I
This Section 4.3.9 is intended to be a restatement of the business judgment rule 2
established in applicable law. All modifications and interpretations of the business judgment rule g
applicable to the Community Association, shall be interpreted to modify and interpret this «
Section 4.3.9. J6
(c) Community Association Governance. This Section applies to 0
Community Board actions and Architectural Review Committee decisions in connection with
interpretation and enforcement of the Declaration, architectural and landscaping control,
regulation of uses within the Covered Property, rule making and oversight of committees.
; Actions taken or decisions made in connection with these matters shall be reasonable, fair and
nondiscriminatory.
ARTICLE 5
ASSESSMENTS
i
To fund the activities of the Community Association, the Community Association will be
collecting various types of assessments. These assessments fund the services which are being
provided by the Community Association. By paying assessments which fund the programs and
services of the Community Association, all of the Owners within the La Costa Oaks Community
are benefitted. In addition to the overall assessments which are levied against all Owners, some
Owners whose Lots are situated in Special Benefit Areas will pay an additional payment for the
services provided to the Special Benefit Areas by the Community Association.
5.1 Creation of Lien and Personal Obligation for Assessments. Declarant and each
Merchant Builder, for each Residential Lot owned, covenants, and each Owner of a Residential
Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is
deemed to covenant to pay to the Community Association all assessments levied pursuant to the
provisions of this Declaration. All assessments levied herein, together with any Additional
Charges, shall (except as otherwise provided in Section 5.4.4 below) be a charge on the land and
shall be a continuing lien upon the Residential Lot against which each such assessment is made.
The lien shall be effective upon recordation of a notice of delinquent assessment. Each
assessment, together with interest, late charges, costs and reasonable attorney's fees, shall also be
the personal obligation of the person who was the Owner of the Residential Lot at the time the
assessment is due and shall bind his or her heirs, devisees, personal representatives and assigns.
The personal obligation for delinquent assessments shall not pass to successors hi title of a
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Residential Lot unless expressly assumed by them; however, the delinquent assessment shall
remain a lien on the Residential Lot. No such assumption of personal liability by a successive
Owner (including a contract purchaser under an installment land contract) shall relieve any
Owner from personal liability for delinquent assessments. If more than one person or entity was
the Owner of a Residential Lot, the personal obligation to pay such assessment or installment
respecting such Residential Lot shall be both joint and several.
5.2 Maintenance Funds of Community Association. The Community Board shall
establish no fewer than two (2) separate association maintenance funds accounts ("Community
Association Maintenance Funds") into which shall be deposited all monies paid to the
Community Association and from which disbursements shall be made, as provided herein, in the n
Community Association's performance of Junctions under this Declaration. The Community *
Association Maintenance Funds may be established as trust accounts at a banking or savings 0
institution and shall include: (a) an operating fund for current expenses ("Operating Fund"), 3
(b) an adequate Reserve Fund ("Reserve Fund") for the deposit of Reserves attributable to g
Improvements within the Community Association Property or Common Maintenance Areas ,
(which would not reasonably be expected to recur on an annual or more frequent basis), and for •
payment of deductible amounts for insurance policies which the Community Association obtains
as provided in the Article entitled 'Insurance and Condemnation", and (c) any other funds which
the Community Board may establish to the extent necessary under the Declaration's provisions.
Nothing contained herein precludes the establishment of additional Community Association
Maintenance Funds by the Community Association, so long as the amounts assessed, deposited
into, and disbursed from any such Fund are designated for purposes authorized by this
Declaration.
5.3 Purpose of Community Assessments. The Community Assessments levied by the
Community Association shall be used exclusively for the purposes and function. of the
Community Association set forth in this Declaration and Community Governing Documents.
Regular Assessments shall be used to satisfy Common Expenses as provided herein and in the
Community Bylaws. If the Community Association decides to use or transfer Reserve Funds (as
defined below) to pay for litigation, the Community Association must notify its Members of the
decision at the next available mailing. Such notice shall provide an explanation of why the
litigation is being initiated or defended, why operating funds cannot be used, how and when the
Reserve Funds will be replaced, and a proposed budget for the litigation. The notice must state
that the Members have a right to review an accounting for the litigation as provided in
Section 1365.5 of the California Civil Code or any successor statute or law, which will be
available at the Community Association's office. The accounting shall be updated monthly.
5.4 Nature of Assessments. The Community Board shall establish the following
Assessments, each of which shall be used only for the purposes specified in this Article.
5.4.1 Regular Assessments. Regular Assessments shall be an annual assessment
for Common Expenses fixed and levied by the Community Board based upon the estimated costs
of operation of the Community Association in accordance with the budgets prepared pursuant to
the provisions of the Community Bylaws, and the accomplishment of its purposes, performance
of its duties and the exercise of its powers that benefit the entire Covered Property. The amount
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and time of payment of Regular Assessments shall be determined as provided for below. Until
January 1st of the year immediately following the conveyance of the first Lot to an Owner, the
annual maximum Regular Assessment shall not exceed the maximum amount permitted for the
Community Association under any Public Report issued for such period by the Department of
Real Estate for any Lot then subject to this Declaration. Increases in Regular Assessments shall
be subject to the limitations set forth in the Section of this Article entitled "Limitation on
Assessments".
5.4.2 Special Assessments. Special Assessments may be levied at any time
during any fiscal year if the Regular Assessments prove inadequate for any reason, including
nonpayment of any Owner's share thereof. Special Assessments shall be allocated in the same o
manner as Regular Assessments. Increases in Special Assessments shall be subject to the f
limitations set forth in the Section of this Article entitled "Limitation on Assessments." 0
35.4.3 Capital Improvement Assessments. In addition to the Regular
Assessments, the Community Association may levy, in any fiscal year, a Capital Improvement
Assessment applicable to that year only, for the purpose of defraying, in whole or in part, the
cost of any construction or replacement (other than due to destruction) of a described Capital
Improvement upon the Community Association Property to the extent the same is not covered by
the provisions affecting Reconstruction Assessments in the Article hereof entitled "Destruction
of Improvements," including the necessary fixtures and persona] property related thereto.
Capital Improvement Assessments shall be assessed and shall be allocated to Owners in the same
manner as Regular Assessments. All amounts collected as Capital Improvement Assessments
may only be used for Capital Improvements and shall be deposited by the Community Board in a
separate bank account to be held in trust for such purposes. Said funds shall not be commingled
with any other funds of the Community Association and shall be deemed a contribution to the
capital account of the Community Association by the Members. Increases in Capital
Improvements Assessments shall be subject to the limitations set forth in Section 5.5 below.
5.4.4 Enforcement Assessments. The Community Association may levy an
Enforcement Assessment against any Owner who causes damage to the Community Association
Property and/or Common Maintenance Areas or for bringing an Owner or such Owner's Lot into
compliance with the provisions of the Community Governing Documents or any other charge
designated an Enforcement Assessment in the Community Governing Documents, together with
attorneys' fees, interest and other charges related thereto as provided in this Declaration. If the
Community Association undertakes to provide materials or services which benefit individual
Owners, then such Owners in accepting such materials or services agree that the costs thereof
shall be an Enforcement Assessment. The Community Board shall have the authority to adopt a
reasonable schedule of Enforcement Assessments for any violation of the Community Governing
Documents. If, after Notice and Hearing as required by the Community Governing Documents,
the Owner fails to cure or continues such violation, the Community Association may impose an
additional fine each time the violation is repeated, or not corrected as provided for herein and
may assess such Owner and enforce the Enforcement Assessment as herein provided for
nonpayment of a Community Assessment. As specified above, a hearing committee may be
established by the Community Board to administer the foregoing. Whenever the Community
Association performs any service or accomplishes any item of repair or maintenance which is the
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duty of a Condominium Project Association or an Owner to accomplish, but which has not been
accomplished by the Condominium Project Association or Owner, or whenever the Community
Association determines to preempt the performance of a Condominium Project Association or a
specific Owner of a given act of maintenance or repair, the Community Association shall
specifically charge the cost thereof, together with any financing costs and administrative costs
incurred by the Community Association, to the Owner for whom such work was done, or the
Condominium Project for which such work was done, as the case may be, and shall include such
additional cost as an Enforcement Assessment for such Owners or Condominium Project
I Association.
1 5.4.5 Formation of Special Benefit Areas. The Declarant, prior to the
1 conveyance of a Lot by a Merchant Builder to an Owner under a Public Report, may establish a L
Special Benefit Area or expand an existing Special Benefit Area by designating the Lots to be §
included within such Special Benefit Area in a Supplementary Declaration. Subject to the 3
provisions of Sections 3.6 of this Declaration, the Community Association may also establish or ft
| expand additional Special Benefit Areas with respect to portions of the Covered Property which ^
directly receive a special benefit from the Community Association for special services provided 0
to such Owners. If any Special Benefit Area is formed or expanded after the Lots to be included
I within such Special Benefit Area have been conveyed to an Owner under authority of a Public
Report, then the approval of a majority of the Owners of the Lots proposed to be included in the
i Special Benefit Area shall be required. Upon its approval, the Special Benefit Area and Special
Benefit Maintenance Area shall be described in a Supplementary Declaration recorded by the
Declarant or Community Association, as applicable, as provided in Section 12.4 of this
Declaration. From and after the formation of such a Special Benefit Area, it shall be
administered by the Community Association in the same manner as all other Special Benefit
Areas provided for in this Declaration.
5.4.6 Special Services Assessment. The Community Board may establish a
i Special Services Assessment to reimburse the Community Association for Special Services
I rendered by the Community Association to an Owner. In the event that the Community
1 Association obtains income directly related to an item which has been assessed as a Special
{ Services Assessment, such income shall be allocated so as to reduce or offset such Special
, Services Assessment.
I
I 5.4.7 Reconstruction Assessments. Reconstruction Assessments may be levied
1 by the Community Board under the conditions and in the manner specified in the Article hereof
entitled "Destruction of Improvements."
5.5 Limitation on Assessments. The Community Board shall levy Regular
Assessments and Special Assessments sufficient to perform the obligations of the Community
Association as provided in the Declaration and Community Bylaws; provided, however, except
for assessment increases necessary for emergency situations, and except for Special Assessments
imposed to restore funds to the Community Association pursuant to California Civil Code
§ 1365.5(c) and except as provided in this Section: (a) the Community Board may not increase
the Regular Assessments for any fiscal year unless the Community Board has complied with the
provisions of California Civil Code § 1365.5 (preparation and distribution of the budget), and
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(b) the. Community Board may not impose a Regular Assessment that is more than twenty
percent (20%) greater than the Regular Assessment for the Community Association's preceding
fiscal year (whether such percentage is calculated against the General Assessment Component or
Special Benefit Area Assessment Components as described in Section 5.7 below or the aggregate
of both such amounts) but specifically excluding the Technology Assessment, if any, nor may
the Community Board impose Special Assessments which in, the aggregate exceed five percent
(5%) of the budgeted gross expenses of the Community Association for the fiscal year (whether
such percentage is calculated against the Common Expenses of the Community Association or, if
the Special Assessment is to be levied only against a Special Benefit Area, to the Common
Expenses of a Special Benefit Area), without the approval of Owners casting a majority of the
votes of the Members affected thereby at a meeting or election of the Community Association
conducted in accordance with Chapters (commencing with § 7510) of Part 3 of Division 2 of
Title I of the California Corporations Code and § 7613 of the California Corporations Code at
which a quorum was present or participated. Notwithstanding the foregoing, if any such Regular
Assessments or Special Assessments include a Special Benefit Area Assessment Component as
described in Section 5.7 below, and the amount of such increases of Regular Assessments or levy
of Special Assessments would not otherwise require the approval of Owners subject only to the
General Assessment Component, only the approval of Owners within the applicable Special
Benefit Area shall be required for increases to the Regular Assessments or the levy of Special
Assessments which only result in the increases described above to the total Regular Assessments
or the levy of Special Assessments applicable to the Special Benefit Area except to the extent as
may otherwise be required under Section 1366 of the California Civil Code.
5.5.1 Quorum. For purposes of this Section 5.5, "quorum" means more than
fifty percent (50%) of the Owners.
5.5.2 Emergency Situation. For purposes of this Section 5.5, an emergency
situation is any one of the following:
(a) An extraordinary expense required by an order of a court;
(b) An extraordinary expense necessary to repair or maintain the La
Costa Oaks Community or any part of it for which the Community Association is responsible
where a threat to personal safety in the Community Association is discovered;
(c) An extraordinary expense necessary to repair or maintain the La
Costa Oaks Community or any part of it for which the Community Association is responsible
that could not have been reasonably foreseen by the Community Board in preparing and
distributing the Budget required under the Declaration and Community Bylaws. However, prior
to the imposition or collection of an assessment under this Subsection, the Community Board
shall pass a resolution containing written findings as to the necessity of the extraordinary
expense involved and why the expense was not or could not have been reasonably foreseen in the
budgeting process, and the resolution shall be distributed to the Members with the notice of
assessment. Any increases authorized under this Section shall not be imposed unless the
Community Board has complied with the budgetary requirements set forth in the Community
Bylaws with respect to the Fiscal Year for which an assessment is being levied;
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(d) An extraordinary expense in making the first payment of the
earthquake insurance surcharge pursuant to § 5003 of the California Insurance Code.
The term "Regular Assessment for the Community Association's preceding Fiscal Year" as used
in this Section is deemed to be the Regular Assessment which would have existed in the absence
of any subsidy of assessments agreed to be paid by Declarant or any Merchant Builder.
Anything in this Section to the contrary notwithstanding, the limitation on Regular Assessments
and Special Assessments shall comply with the laws of the State of California at the time the
Regular Assessment or Special Assessment is levied by the Community Association.
5.5.3 Notice to Owners. The Community Association shall provide notice by
first class mail to the Owners of any increase in the Regular Assessments or Special Assessments 2
of the Community Association, not less than thirty (30) days and not more than sixty (60) days g
prior to the increased assessment becoming due and payable. q
5.6 Increases in Assessments Based Upon Range of Assessments. Declarant has 0
submitted to the DRE a budget which provides for a range in the amount of the Regular
Assessments over the course of the development of the La Costa Oaks Community ("DRE
Approved Budget"). Therefore, notwithstanding any limitations contained in this Declaration to
the contrary, in the event that the amount of the Regular Assessments is greater than the amounts
permitted to be increased by this Declaration without a vote of the Voting Power pursuant to the
requirements set forth in Section 5.5 above, then the Community Board, on behalf of the
Community Association and without the requirement of prior notice to the Members or a vote of
the Members, shall be entitled to increase the maximum Regular Assessment at that time to an
amount which is within the range of assessments as approved by the DRE.
5.7 Allocation of Community Assessments to Lots. The Community Assessments
shall be allocated to each Residential Lot as to which Community Assessments have commenced
as set forth below.
5.7.1 General Assessment Component. The Regular Assessments exclusive of
the Common Expenses included within the Special Benefit Area Budget ("General Assessment
Component") shall be allocated among the Owners and their respective Residential Lots at a
uniform rate among all of the Residential Lots subject to such assessment. Special Assessments,
Reconstruction Assessments and Capital Improvement Assessments shall be allocated in the
same manner as Regular Assessments. Enforcement Assessments and Special Services
Assessments shall be levied directly to the individual Owners in a manner consistent with the
provisions of Article 5 of this Declaration, respectively.
5.7.2 Special Benefit Area Assessment Component. The portion of the Regular
Assessments budgeted exclusively to any particular Special Benefit Area, if any, in the Special
Benefit Area Budget ("Special Benefit Area Assessment Component") shall be assessed solely to
the Owners of Residential Lots within the applicable Special Benefit Area, at a uniform rate
among all the Residential Lots within the Special Benefit Area subject to such assessment, unless
a different allocation is set forth in the Special Benefit Area Budget.
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5.7.3 Other Community Assessments. Special Assessments, Reconstruction
Assessments and Capital Improvement Assessments shall be allocated in the same manner as
Regular Assessments. Enforcement Assessments and Special Services Assessments shall be
levied directly to the individual Owners in a manner consistent with the provisions of Article 5 of
this Declaration, respectively.
5.8 Date of Commencement of Regular Assessments; Due Dates. The Regular
Assessments provided for herein shall commence as to all Residential Lots in a Phase subject to
this Declaration on the first day of the month following the conveyance of the first Residential
Lot within such Phase to an Owner under authority of a Public Report. As to any Additional
Property which is thereafter annexed into the Covered Property pursuant to a Supplementary
Declaration, the Regular Assessments shall commence as to all Additional Property within such 2
Phase upon the first day of the first month following the closing of the sale of the first §
Residential Lot in such Phase to an Owner under a Public Report or such earlier date as may be 3
selected by Declarant for the commencement of assessments in such Phase. The first Regular r
Assessment shall be adjusted according to the number of months remaining in the calendar year. *
In no event shall any sale or leaseback by Declarant of any Residential Lot in the Project being
used as a model home, sales office, design center, construction office or similar purpose
(collectively, a "Model Home") and which are not occupied by a homeowner cause the
commencement of assessments in a Phase for which assessments have not otherwise
commenced.
5.9 Annual Levy of Regular Assessments. Any Regular Assessments in excess of the
amount permitted under the DRE Approved Budget shall be fixed by the Community Board
against each Lot at least sixty (60) days in advance of each annual Community Assessment
period. Written notice of such Regular Assessment shall be sent to every Owner subject thereto
at least forty-five (45) days prior to its effective date. Unless expressly provided otherwise by
the Community Board, each Regular Assessment shall be payable in advance, in equal monthly
installments or such installments as may be established by the Community Board, the first of
which installments shall be due and payable on the first day of the first month of each fiscal year.
5.10 Notice and Assessment Installment Due Dates. A single ten (10) day prior written
notice of each Special Assessment, Capital Improvement Assessment or any other Assessment
(other than Regular Assessments and Special Services Assessments) shall be given to each
Owner. The Community Association shall give an initial notice for any Special Services
Assessment and thereafter the Special Services Assessment shall be payable concurrently with
the Regular Assessment. The due dates for the payment of installments normally shall be the
first day of each month unless some other due date is established by the Community Board.
Each installment of Regular Assessments, Special Assessments and Capital Improvement
Assessments and any other Assessments levied hereunder shall become delinquent if not paid
within fifteen (15) days after its due date. There shall accrue with each delinquent installment a
late charge, interest charge to be set by the Community Board and reasonable costs of collection,
including attorneys' fees, but which shall not, in any event, exceed the maximum rates permitted
under California Civil Code Section 1366, or any successor statute or law.
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5.11 Estoppel Certificate. The Community Board on not less than ten (10) days prior
written request shall execute, acknowledge and deliver to the party making such request a
statement in writing stating whether or not, to the knowledge of the Community Association, a
particular Owner is in default as to such Owner's Residential Lot under the provisions of this
Declaration and further stating the dates to which installments of assessments, regular or special,
have been paid as to such Residential Lot. Any such statement may be relied on by any
prospective purchaser or Mortgagee of the Residential Lot, but reliance on such statement may
not extend to any default not involving the payment of assessments of which the signer had no
actual knowledge.
5.12 Excess Funds. The Community Board may determine that funds remaining in the
Operating Fund at the end of a Fiscal Year be retained and used to reduce the following Fiscal 2
Year's Regular Assessments. Upon dissolution of the Community Association incident to the £
abandonment or termination of the Covered Property as a planned development, any amounts *
remaining in any of the Community Association Maintenance Funds shall be distributed to or for «
the benefit of the Members in the same proportions as such monies were collected from them. /
5.13 Collection of Assessments: Liens.
5.13.1 Right to Enforce. The right to collect and enforce Assessments is vested
in the Community Board acting for and on behalf of the Community Association. The
Community Board or its authorized representative, can enforce the obligations of the Owners to
pay Assessments provided for in this Declaration by commencement and maintenance of a suit at
law or in equity, or the Community Board may foreclose by judicial proceedings or through the
exercise of the power of sale pursuant to Section 5.13.6 enforce the lien rights created. Suit to
recover a money judgment for unpaid Assessments together with all other Additional Charges
described in Section 5.14 shall be maintainable without foreclosing or waiving the lien rights.
Notwithstanding anything else to the contrary herein, except for monetary penalties imposed by
the Community Association to reimburse the Community Association for costs incurred by the
Community Association in the repair of damage to the Community Association Property or
Common Maintenance Areas for which the Member or the Member's guests or Invitees were
responsible which may become a lien on the Owner's Residential Lot, a monetary penalty
imposed by the Community Association as a disciplinary measure for failure of a Member to
comply with the Community Governing Documents or in bringing the Member and his or her
Residential Lot into compliance with the Community Governing Documents may not be
characterized nor treated as an Assessment which may become a lien against the Member's
Residential Lot enforceable by a sale of the interest hereunder. The limitation in the preceding
sentence however, does not apply to any Additional Charges.
5.13.2 Notice of Assessment and Foreclosure. The Community Association shall
distribute a written notice regarding assessments and foreclosure as set forth in California Civil
Code Section 1365.1 during the sixty (60) day period immediately preceding the beginning of
each fiscal year.
5.13.3 Delinquent Assessments. The Community Association shall comply with
the requirements of California Civil Code Section 1367.1 and any successor statutes or laws
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when collecting delinquent assessments. The Community Board or its authorized representative
must send to the delinquent Owner or Owners, at least thirty (30) days prior to the recordation of
a lien against the delinquent Owner's Residential Lot (as set forth in Section 5.13.4), a written
notice by certified mail, which notice shall contain all of the information specified in California
Civil Code Section 1367.1 and any successor statutes or laws ("Initial Notice")- The delinquent
Owner may dispute the debt noticed pursuant to the Initial Notice by submitting to the
Community Board a written explanation of the reasons' for the delinquent Owner's dispute
("Owner Explanation")- The Community Board shall respond to the Owner Explanation in
writing to the delinquent Owner within the time frame set forth in California Civil Code
Section 1367.1 and any successor laws or statutes. The delinquent Owner may submit a written
request to the Community Board to meet with the Community Board to discuss a payment plan
for the debt noticed in the Initial Notice. The Community Board shall meet with the delinquent 2
Owner in executive session within the time frame set forth in California Civil Code ft
Section 1367.1 and any successor laws or statutes. The Community Association shall provide o
the Owners the standards for payment plans if any exists. ii
5.13.4 Creation of Lien. If there is a delinquency in the payment of any \
assessment, or installment on a Residential Lot any amounts that are delinquent, together with
the late charge described in California Civil Code Section 1366 and any successor statutes or
laws, interest at the rate permitted in such Section, and all costs that are- incurred by the
Community Board or its authorized representative in the collection of the amounts, including
reasonable attorneys' fees, shall be a lien against such Residential Lot upon the recordation in the
Office of the County Recorder of a notice of delinquent assessment ("Notice of Delinquent
Assessment") as provided in California Civil Code Section 1367 and any successor statutes or
laws. After its recordation, the Notice of Delinquent Assessment shall be mailed to all Owners
of record as provided in California Civil Code Section 1367.1 and any successor statutes or laws.
5.13.5 Assignment. The Community Association may not voluntarily assign or
pledge the Community Association's right to collect payments or assessments, or to enforce or
foreclose a lien to a third party except where provided under California Civil Code
Section 1367. l(g) and any successor statutes or laws.
5.13.6 Notice of Default; Foreclosure. The Community Board or its authorized
representative can record a notice of default and can cause the Residential Lot with respect to
which a notice of default has been recorded to be sold in the same manner as a sale is conducted
under California Civil Code Sections 2924, 2924b and 2924c and any successor statutes or laws,
or through judicial foreclosure, and as provided in California Civil Code Section 1367.1 and any
successor statutes or laws. However, as a condition precedent to the holding of any such sale
under Section 2924c, appropriate publication shall be made. In connection with any sale under
Section 2924c, the Community Board is authorized to appoint its attorney, any officer or
director, or any title insurance company authorized to do business in California as trustee for
purposes of conducting the sale. The fee of the trustee shall not exceed the amounts prescribed
in California Civil Code Sections 2924c and 2924d. If (a) a delinquency is cured before sale, or
before completing a judicial foreclosure, or (b) if it is determined that a lien previously recorded
against a Residential Lot was recorded in error, the Community Board or its authorized
representative, within the time frame set forth in California Civil Code Section 1367.1 and any
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successor statutes or laws, shall cause to be recorded in the office of the County Recorder a
certificate setting forth the satisfaction or rescission of such claim and release of such lien upon
payment of actual expenses incurred, including reasonable attorneys' fees by any delinquent
Owner. If the lien was satisfied, the Community Association shall provide the delinquent Owner
a copy of the lien release or notice that the delinquent assessment has been satisfied and if the
Community Association filed a rescission of the lien, then the Community Association shall
provide such Owner with a declaration that the lien filing or recording was in error and a copy of
the lien release or notice of rescission. Any payments made on delinquent assessments shall be
applied in accordance with California Civil Code Section 1367.1 and any successor statutes or
laws. On becoming delinquent in the payment of any assessments, or installments each
delinquent Owner shall be deemed to have absolutely assigned all rent, issues and profits of his
or her Residential Lot to the Community Association and shall further be deemed to have 2
consented to the appointment of a receiver (which appointment may, at the election of the g
Community Association, be enforced by the Community Association through specific o
performance). The Community Association, acting on behalf of the Owners, shall have the ^
power to bid upon the Residential Lot at foreclosure sale and to acquire, hold, lease, mortgage /
and convey the Residential Lot and vote as an Owner of the Residential Lot. 2
5.13.7 Payments Under Protest. Notwithstanding any other provisions set forth
in this Section 5.13, the Owners shall have the right to make certain payments under protest and
be entitled to alternative dispute resolution as provided in California Civil Code Sections 1354
and 1366.3, and 1367.1 or any successor statutes or laws, as provided in this Declaration.
5.13.8 Payment of Assessments. Any payments of sums due under this Article
shall first be applied to assessments owed, and only after assessments owed have been paid in
full shall the payments be applied to the fees and costs of collections, attorney's fees, late
charges or interest. If an Owner requests a receipt after payment of a delinquent assessment, the
Community Association shall provide a receipt which sets forth the date of payment and the
individual who received such payment.
5.14 Additional Charges. In addition to any other amounts due or any other relief or
remedy obtained against an Owner who is delinquent in the payment of any Assessments, each
Owner agrees to pay Additional Charges incurred or levied by the Community Board including
such additional costs, fees, charges and expenditures as the Community Association may incur or
levy in the process of collecting from that Owner monies due and delinquent subject to
California Civil Code Section 1362.l(j). Additional Charges shall include, but not be limited to,
the following:
5.14.1 Attorneys' Fees. Reasonable attorneys' fees and costs incurred in the
event an attorney(s) is employed to collect any Assessment or sum due, whether by suit or
otherwise;
5.14.2 Late Charges. A late charge in an amount to be fixed by the Community
Board in accordance with Civil Code Section 1366, or any successor statute or law, to
compensate the Community Association for additional collection costs incurred in the event any
Assessment or other sum is not paid when due or within any "grace" period established by law;
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5.14.3 Costs of Suit. Costs of suit and court costs incurred as are allowed by the
court;
5.14.4 Interest. Interest to the extent permitted by law; and
5.14.5 Other. Any such other additional costs that the Community Association
may incur in the process of collecting delinquent Assessments or sums.
5.15 Waiver of Exemptions. Each Owner, to the extent permitted by law, waives, to
the extent of any liens created pursuant to this Article, the benefit of any homestead or
exemption laws of California in effect at the time any Assessment, or installment becomes
delinquent or any lien is imposed. «
5.16 Subordination of Lien to First Mortgages. When a Notice of Delinquent 6
Assessment has been recorded, such assessment shall constitute a lien on'such delinquent ?
Owner's Residential Lot prior and superior to all other liens, except, (a) all taxes, (b) bonds, y
assessments and other levies which, by law, would be superior thereto, and (c) any First 1
Mortgage now or hereafter placed upon any Residential Lot subject to assessment. The sale or <J
transfer shall relieve such Residential Lot from lien rights for any Assessments thereafter
becoming due nor from the lien of any subsequent Assessment. Where the First Mortgagee or
other purchaser of a Residential Lot obtains title to the same as a result of foreclosure (excluding
a transfer by a deed in lieu of foreclosure), such acquirer of title, his or her successors and
assigns, shall not be liable for the share of the Common Expenses or Assessments by the
. Community Association chargeable to such Residential Lot which became due prior to the
acquisition of title to such Residential Lot by such acquisition, except for a share of such charges
or Assessments resulting from a reallocation of such charges or Assessments which are made
against all Residential Lots.
5.17 No Offsets. All Assessments shall be payable in the amounts specified by the
particular Assessment and no offsets against such amount shall be permitted for any reasons,
including, without limitation, a claim that the Community Association is not properly exercising
its duties of maintenance, operation or enforcement.
5.18 Transfer of Covered Property. After transfer or sale of property within the La
Costa Oaks Community, the selling Owner or Owners shall not be liable for any Assessment
levied on such Owner or Owner's Residential Lot after the date of such transfer of ownership
and written notice of such transfer is delivered to the Community Association- The selling
Owner shall still be responsible for all Assessments and charges levied on his or her Residential
Lot prior to any such transfer.
5.19 Failure to Fix Assessments. The omission by the Community Board to fix the
Assessments hereunder before the expiration of any year, for that or the next year, shall not be
deemed either a waiver or modification in any respect of the provisions of this Declaration or a
release of the Owner from the obligation to pay the Assessments or any installment thereof for
that or any subsequent year, but the Assessment fixed for the preceding year shall continue until
a new Assessment is fixed.
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5.20 Personal Liability of Owner. No Member may exempt himself or herself from
personal liability for Assessments levied by the Community Association nor release the Lot
owned by such Owner from the liens and charges for Assessments by waiver of the use and
enjoyment of the Community Association Property or Common Maintenance Areas or by
abandonment of such Owner's Residential Lot.
5.21 Exempt Covered Property. Community Association Property and all Covered
Property dedicated to and accepted by a local public authority, and all Covered Property owned
by a charitable nonprofit organization exempt from taxation by the laws of the State of
California, shall be exempt from assessments by the Community Association. However, no land
or improvements devoted to dwelling use shall be exempt from assessments by the Community
Association. . 0
5.22 Capitalization of Community Association. Upon the Close of Escrow of a 0
Residential Lot, each Owner shall contribute to the capital of the Community Association an 3
amount equal to Seventy-Five Dollars (S75.00). Notwithstanding the foregoing, the Community f
Association, with the prior written consent of the Declarant, may elect to terminate the collection A
of the capital contributions, and in such case, any Owner who has previously paid a capital
contribution shall NOT be entitled to any offsets to the Owner's assessments which have been
previously paid. The capital contribution shall be deposited by the Owner into the purchase and
sale escrow and disbursed from the escrow to the Community Association. Amounts paid
pursuant to this Section shall not be considered as advance payments of Assessments and are in
addition to and not in lieu of Regular Assessments and Special Assessments of the Community
Association. The provisions set forth above shall not apply to the conveyance of a Residential
Lot to a Merchant Builder by Declarant.
ARTICLE 6
ARCHITECTURAL CONTROL
To maintain the architectural harmony of the La Costa Oaks Community, the Community
Board will appoint an Architectural Committee which will be charged with the responsibility for
ensuring the overall architectural integrity of the La Costa Oaks Community. One of the
functions of the Architectural Committee will be to implement design standards for the La Costa
Oaks and to implement procedures for review of architectural plans. These standards and
procedures will be set forth in the La Costa Oaks Community Design Standards. Additionally,
the Architectural Committee will review the plans of each Owner for the installation of
Improvements within the Covered Property and may take such actions as it deems necessary to
ensure compliance with the standards of the Community Design Standards.
6.1 Architectural Committee. The Architectural Committee shall be a committee of
not less than three (3) nor more than five (5) persons. All members of the Architectural
Committee may be appointed and replaced by Declarant until the earlier to occur of (a) the date
that ninety percent (90%) of the Residential Lots proposed for the overall La Costa Oaks
Community have been conveyed to Class A Members; or (b) on the seventh (7th) anniversary
following the most recent conveyance to a Class A Member of a Residential Lot in any
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Phase under authority of a Public Report. Thereafter, all members of the Architectural
Committee shall be appointed or replaced by the Community Board. Architectural Committee
members appointed by Declarant need not be Members of the Community Association.
6.1.1 Resignations. Any member or alternate member of the Architectural
Committee may at any time resign from the Architectural Committee upon written notice
delivered to Declarant or to the Community Board, whichever then has the right to appoint
Architectural Committee members.
6.1.2 Vacancies. Vacancies on the Architectural Committee, however caused,
shall be filled by the Declarant or the Community Board, whichever then has the power to
appoint Architectural Committee members. ^
6.2 Scope. No Improvements shall be commenced, erected or maintained upon the 0
Covered Property, nor shall there be any addition to or change in the exterior of any Residence, 3
structure or other Improvement, unless plans and specifications, therefor, showing the nature, 7
design, kind, shape, height, width, color, material and location and any other information r
prescribed by the Community Design Standards (collectively, "Plans and Specifications") have «
been submitted to and approved by the Architectural Committee in accordance with the
procedures set forth in the Community Design Standards. The provisions of this Article shall
preempt and supersede any inconsistent provision of any rules or restrictions of any
Condominium Project Association to the extent that any Condominium Project Declaration or
any other governing documents for a Condominium Project are in conflict with the provisions of
this Declaration.
6.3 Exemptions. The exemptions described below are hereby granted and the
provisions of this Article shall not apply to the parties described below.
6.3.1 Declarant Exemption. The provisions of this Article 6 shall not apply to
Declarant or to any Improvements erected or installed by the Declarant within the La Costa Oaks
Community.
6.3.2 Merchant Builder Exemption. The provisions of this Article 6 shall not
apply to Merchant Builder or to any Improvements erected or installed by the Merchant Builder
within the La Costa Oaks Community.
6.4 Duties. It shall be the duty of the Architectural Committee to consider and act
upon such proposals or plans submitted to it pursuant to the Community Design Standards, to
foster the maintenance of and ensure compliance with the architectural standards for the La
Costa Oaks Community, to administer the Community Design Handbook, to perform other
duties delegated to it by the Community Association, to ensure that any Improvements
constructed within the Covered Property conform to plans approved by the Architectural
Committee, and to carry out all other duties imposed upon it by the Community Governing
Documents. The Architectural Committee, in its own name or on behalf of the Community
Association, may exercise all available legal and equitable remedies to prevent or remove any
unauthorized and unapproved construction of Improvements within the Covered Property or any
portion thereof. Notwithstanding the foregoing, the Architectural Committee may delegate its
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plan review responsibilities to one or more members of the Architectural Committee or to any
other individuals or consultants deemed acceptable to the Architectural Committee. Upon such
delegation, the approval or disapproval of plans and specifications by such persons shall be
equivalent to approval or disapproval by the entire Architectural Committee. Unless any such
procedures regarding submission of plans are complied with, such Plans and Specifications shall
be deemed not submitted.
6.5 Community Design Standards. The Community Board shall adopt and
promulgate the Community Design Standards to be administered through the Architectural
Committee. The Community Design Standards shall establish a plan for the architectural
standards of the La Costa Oaks Community and shall establish guidelines and procedures to be
followed by each Owner, including the procedures for submission of plans and specifications/ 2
The failure of the Community Board to include any particular standards or guidelines in the fi
Community Design Standards shall not limit the right of the Architectural Committee to enforce
standards to protect the overall theme and development of the Covered Property. The
Community Design Standards shall set forth time limitations for the completion of any
Improvements for which approval is required. The Community Design Standards may include 6
such other limitations and restrictions as the Community Board in its reasonable discretion shall
adopt including, without limitation, regulations of the following: construction, reconstruction,
exterior addition, change or alteration to or the maintenance of any building, structure, wall or
fence and conversions of garages, including, without limitation, the nature, kind, shape, height,
materials, exterior color and surface and location of any Residence, or other Improvements of
any kind.
6.6 Address. The address of the Architectural Committee shall be the principal office
of the Community Association or any other place as may be designated by the Community Board
pursuant to the Community Bylaws. Such address shall be the place for the submittal of plans
and specifications and the place where the current Community Design Standards, if any, shall be
kept. ' " •
6.7 Fees. The Community Board may establish fees for the review and approval of
any plans initially submitted and/or resubmitted by an Owner. A schedule of such fees shall be
included in the Community Design Standards.
6.8 Meetings. The Architectural Committee shall meet from time to time as
necessary to properly perform its duties hereunder. Unless otherwise provided for herein, the
vote or written consent of a majority of the members of the Architectural Committee shall
constitute an act by the Architectural Committee unless the unanimous decision of its members is
otherwise required by the Community Governing Documents. The members of the Architectural
Committee shall be entitled to reimbursement for reasonable expenses incurred by them in the
performance of any Architectural Committee function.
6.9 Approval of Solar Energy Systems. Any Owner proposing to install or use a solar
energy system, as defined in Civil Code Section 801.5, shall be subject to the same review and
approval process as any owner proposing to construct any Improvements or other actions
requiring the approval of the Architectural Committee pursuant to this Declaration. However,
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only reasonable restrictions on the installation and use of a solar energy system shall be
permitted. Reasonable restrictions on a solar energy system are those restrictions which do not
significantly increase the cost of the system or its sufficiency or specified performance, or which
allow for an alternative system of comparable, costs, efficiency, and energy conservation
benefits.
6.10 Waiver. The approval by the Architectural Committee of any plans, drawings or
specifications for any work done or proposed, or for any other matter requiring the approval of
the Architectural Committee under this Declaration, shall not constitute a waiver of any right to
withhold approval of any similar plan, drawing, specification or matter subsequently submitted
for approval.
26.11 Government Regulations. In the event there is any conflict between the . r>
requirements or actions of the Architectural Committee and the mandatory regulations or )*
ordinances of any governmental entity relating to the Covered Property, the government 3
regulation or ordinance, to the extent that such regulations and ordinances are more restrictive, J
shall control and the Architectural Committee shall modify its requirements or actions to 7
conform to the government regulation or ordinance; provided, however, that if the governmental
rules or regulations are less restrictive, the provisions of this Declaration shall nonetheless apply.
The application by an Owner for review and approval by the Architectural Committee of any
plans and specifications or other submittals by such Owner shall in no way be deemed to be
satisfaction or compliance with any applicable statute or law, or governmental rule or regulation
or public utility requirement (hereinafter collectively referred to as "Additional Requirements");
provided, however, if the additional requirements are less restrictive than the provisions of this
Declaration, the provisions of this Declaration shall nonetheless apply. Although the
Community Association has the right to require evidence of City approval of the Improvements
as a condition to review of the final Plans and Specifications, nothing contained herein shall
impose on the Community Association the duty to obtain evidence of approval by the City of any
Improvements as a condition to issuance of final approval or any liability on the Community
Association as a result of the failure of the Community Association to request evidence of City
approval.
6.12 Waiver. The approval of the Architectural Committee to 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 Architectural Committee shall not be deemed to
constitute a waiver of any right to withhold approval or consent as to any similar proposals,
Plans and Specifications, drawings or matters whatever subsequently or additionally submitted
for approval or consent. Although the Architectural 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, it shall not be responsible for
reviewing, nor shall its approval of any plans or design be deemed approval of any plan or design
from the standpoint of adequacy of drainage, structural safety or conformance with building or
other codes or the requirements of the City.
6.13 Variances. The Architectural Committee may authorize variances from
compliance with any of the architectural provisions of this Article 6, including, without
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limitation, restrictions on height, size, floor area or placement of structures, or similar
restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or
environmental considerations may require. Such variances must be in writing, and must be
signed and acknowledged by at least a majority of the members of the Architectural Committee.
The granting of such a variance shall not operate to waive any of the terms and provisions of this
Article 6 for any purpose except as to the particular property and particular provision hereof
covered by the variance, nor shall it affect in anyway the Owner's obligation to comply with all
laws and regulations of any Governmental Agency affecting the use of such Owner's Residential
Lot, including, but not limited to, zoning and building requirements of any Governmental
Agency having jurisdiction over the Residential Lot. No variance shall be authorized from the
Community Design Standards adopted by the Architectural Committee, except with the majority
1 vote of all members of the Architectural Committee. 2
66.14 Liability. Neither the Community Board nor the Architectural Committee nor any q
member thereof shall be liable to the Community Association or to any Owner for any damage, 7
loss or prejudice suffered or claimed on account of: (a) the approval or disapproval of any plans, '
drawings and specifications, whether or not defective; (b) the construction or performance of any 8
! work, whether or not pursuant to approved plans, drawings, and specifications; or (c) the
execution and filing of an estoppel certificate pursuant to this Article 6, whether or not the facts
i therein are correct; provided, however, that such Community Board and Architectural
1 Committee member has acted in good faith on the basis of such information as may be possessed
i fay him. Without in any way limiting the generality of the foregoing, the Architectural
i Committee or any member thereof, may, but is not required to, consult with or hear the views of
the Community Association or any Owner with respect to any plans, drawings, specifications or
any other proposal submitted to the Architectural Committee.
6.15 Estoppel Certificate. Within thirty (30) days after written request is delivered to
the Community Board by any Owner, and upon payment to the Community Association of a
1 reasonable fee (as fixed from time to time by the Community Association), the Community
! Board shall deliver an estoppel certificate to the requesting Owner, executed by any two (2) of its
members, certifying (with respect to any Residential Lot of said Owner) that as of the date
thereof, either: (a) all Improvements made and other work completed by said, Owner comply
with this Declaration, or (b) such Improvements or work do not'so comply, in which event the
certificate shall also identify the non-complying Improvements or work and set forth with
particularity the basis of such non-compliance. Any purchaser from the Owner, or from anyone
1 deriving any interest from such Owner, shall be entitled to rely on said certificate with respect to
1 the matters therein, set forth, such matters being conclusive as between the Community
Association, Declarant and all Owners and such persons deriving any interest through them.
6.16 Interpretation. All questions of interpretation or construction of any of the terms
or conditions herein shall be resolved by the Architectural Committee, or if upon, appeal, by the
Community Board and its decision shall be final, binding and conclusive on all of the parties
affected unless such decision is appealed, in which case the decision of the Community Board
shall be final, binding and conclusive on all of the parties affected.
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6.17 Amendments. Notwithstanding the Article hereof entitled "Amendments," no
amendment, verification or rescission of this Article may be had, nor shall Declarant, or any
successor thereof, be prohibited from completing the construction of the La Costa Oaks
Community prior to the conveyance by Declarant, or its successor, of the last Residential Lot
without the (i) written consent of Declarant, and the (ii) recording of such consent in the Office
of the County Recorder. Such written consent shall not be required after the conveyance by
Declarant and Guest Builders of all the Residential Lots within the Covered Property and
Additional Property.
ARTICLE? .
USE RESTRICTIONS 2
c
Living in a master planned community has the benefit of providing a sense of community ]•
and governance for the benefit of all the Owners within the La Costa Oaks Community. To v
ensure the continued value and enjoyment of the La Costa Oaks Community, there are also use "I
restrictions which govern each Owner within the Community. While the use restrictions may 0
limit the rights to perform certain activities within the La Costa Oaks Community, the use
restrictions also help to protect the overall La Costa Oaks Community and thereby may provide
a benefit to the Owners and their occupants.
7.1 Residential Use. All Residential Lots within the Covered Property shall be
improved and used solely for single-family residential use, unless the ordinances of the City
permit use by more than a single family; provided, however, that this provision shall not
preclude any Owner from renting or leasing his or her Residential Lot by means of a written
lease or rental agreement. No lease shall be for a term of less than thirty (30) days. No
Residential Lot shall be used or caused to be used or allowed or authorized to be used in any
way, directly or indirectly, for any business, commercial, manufacturing, mercantile, storage,
vending or other non-residential purposes; except Residential Lots may be used for model home
sites, construction offices, a design center, and display and sales office purposes during the
construction and sales period by Declarant or the Merchant Builders. The provisions of this
Section shall not preclude professional or administrative occupations without external evidence
thereof, for so long as such occupations (i) are conducted in conformance with all applicable
governmental ordinances, (ii) are merely incidental to the use of the Residential Lot as a
residence, (iii) the patrons or clientele of such professional or administrative occupation do not
regularly visit or conduct business on the Residential Lot and (iv) the conduct of the business
does not result in the regular parking of business vehicles in the streets adjacent to the Covered
Property. In addition, home childcare facilities shall be permitted only to the extent they are
operated in accordance with applicable law, including but not limited to zoning requirements and
licensing regulations.
7.2 Nuisances. No rubbish or debris of any kind shall be placed or permitted to
accumulate anywhere within a Lot. No odor shall be permitted to arise from a Lot which renders
the Lot or any portion of a Lot unsanitary, unsightly or offensive to any street or to any portion
of the Covered Property, or vicinity thereof, or to its occupants. No noise or other nuisance shall
be permitted to exist or operate upon any portion of a Lot so as to be unreasonably offensive or
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detrimental to any other part of the Covered Property or to any Owner or their occupants.
Without limiting the generality of any of the foregoing provisions, no exterior speakers, horns,
whistles, bells or other sound devices (other than security devices used exclusively for security
purposes), noisy or smoky vehicles, unlicensed off-road motor vehicles or other items which
unreasonably disturb other Owners or their tenants shall be located, used or placed on any Lot.
No vehicles may be operated upon any portion of the Covered Property not improved as a street,
driveway or parking area. Outdoor lighting on a Residential Lot shall be hooded and shaded and
adjusted so the light falls only on the Residential Lot on which the lighting is located and does
not fall or reflect on other Residential Lots or public rights of way.
7.3 Air Conditioning Fixtures. No wiring or air conditioning fixture, water softeners
or other devices (other than solar heating devices approved by the Architectural Committee) o
shall be installed on the exterior of a Residence or be allowed to protrude through the walls or A
roof of the Residence with the exception of those items installed during the original construction *
of the Residence). 3
87.4 Utilities. All utility, storage areas or structures and pool and spa equipment A
installed or constructed after the conveyance of a Residential Lot to an Owner by Declarant or a
Merchant Builder must be (i) completely concealed from the view of any other Residential Lot
or street, or (ii) constructed of such design, materials, configuration and in such location as to be
compatible with the Residence and other Improvements on the Residential Lot.
7.4.1 Accessory Structures. Patios and accessory structures may be allowed if
. they are in conformance with the City's Zoning Ordinances Section 21.10.050(l)(d)(i),(ii),
(iii) and (iv) and Section 21.10.050(2) and approved by the Architectural Committee.
7.5 Roofs. All structures shall be improved with fire retardant roofs, and no roof shall
be repaired or replaced with material different than originally installed by Declarant or the
Merchant Builder.
7.6 Antennae and Satellite Dishes. No television or radio poles, antennae, satellite
dishes, or technological evolutions of the foregoing, other than those originally installed by
Declarant or any Merchant Builder approved by the Community Board or the Architectural
Committee appointed by the Community Board shall be constructed, erected or maintained on or
within the La Costa Oaks Community; provided, however, that the foregoing restriction shall not
be construed to limit the installation or use of video or television antennas within the La Costa
Oaks Community, including a satellite dish (collectively, "Antenna"), except as otherwise
prohibited or restricted by law, that is of a size and type consistent with the provisions of
Section 1376 of the California Civil Code or any successor statute or law, so long as the
following requirements are satisfied: (a) the Owner has submitted an application and notice to
the Community Board prior to the installation of the Antenna as provided in this Declaration;
and (b) the Owner has obtained the approval of the Community Board for the installation of the
Antenna. The application for approval of an Antenna shall be processed by the Community
Board in the same manner as any other architectural modification within the La Costa Oaks
Community. Notwithstanding the foregoing, the Community Board shall not impose or enforce
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any restrictions on antennas that are inconsistent with the provisions of 47 U.S.C. Section 207 or
the requirements promulgated thereunder on any successor statutes or laws.
7.7 Exterior Maintenance and Repair; Owner's Obligations. No Improvement within
a Residential Lot shall be permitted to fall into disrepair, and each Improvement shall at all times
be kept in good condition and repair by the Owner of the Residential Lot.
7.8 Drainage. There shall be no interference with the established drainage pattern
over any Residential Lot so as to affect any other portion of the Covered Property, unless an
adequate alternative provision is made for proper drainage and it is in accordance with all
applicable governmental codes and ordinances and approved by-the Architectural Committee.
"Established drainage" is defined as the drainage which exists at the time the overall grading and 2
landscaping of the Covered Property is completed pursuant to grading plans approved by the £
City. All drainage facilities located on a Residential Lot shall be maintained by the Owner of the A
Lot. The finished pad elevation of a Residential Lot shall be at least six (6) inches below the ~
finished floor slab of the Residence on such Residential Lot. Unless otherwise specified in a 8
Supplementary Declaration or under the Final Maps, all concrete terrace drains located on a Lot \
(other than within the Common Maintenance Area) shall be maintained in good working
condition by the Owners of the Lot. No drainage shall be allowed from one Lot to another
unless that drainage pattern is part of the established drainage pattern.
7.9 Water and Sewer Systems. No individual water supply system, water softener
system or sewage disposal system shall be permitted on Residential Lot unless the system is
designed, located, constructed and equipped in accordance with the requirements, standards and
recommendations of any applicable water district and any applicable Governmental Agencies.
7.10 No Hazardous Activities. No activities shall be conducted nor shall any
Improvements be constructed on a Lot which are or might be unsafe or hazardous to any person
or property. No toxic chemicals or hydrocarbon materials (including gasoline, motor oil,
antifreeze, solvents, paint, paint thinners, wood preservatives or other similar fluids) shall be
discharged onto any public or private street or into storm drain or storm water conveyance
systems serving the Covered Property. Use and disposal of pesticides, fungicides, herbicides,
insecticides, fertilizers and other chemicals shall be consistent with laws, ordinances, and
regulations of all federal, state,-County, City and other Governmental Agencies and such use and
disposal shall also be in accordance with recommendations prescribed by the manufacturer of the
product on the product container. The Community Association may coordinate the use of the
City's established program to assist Owners with the removal and proper disposal of toxic and
hazardous waste products from the Covered Property. Best Management Practices shall be used
to eliminate or reduce surface pollutants when making changes to the landscaping and surface
improvements of the Covered Property.
7.11 Unsightly Articles. No unsightly articles, including clotheslines, shall be
permitted to remain on any portion of a Lot which are visible from any street or from any other
Lot. Without limiting the generality of the foregoing, refuse, garbage and trash shall be kept at
all times in covered, sanitary containers commercially designed for such purpose (i.e., oil drums
or similar substitutes for commercially designed refuse receptacles are prohibited) and located
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within an enclosed area or areas appropriately screened from the view of any other Residential
Lot. The containers shall be exposed to the view of neighboring Residential Lots only when set
out for a reasonable period of time (not to exceed twelve (12) hours before and after scheduled
trash collection hours). There shall be no exterior fires, except barbecue fires and outdoor
fireplaces contained within receptacles designed therefor which do not create a fire hazard,
7.12 Temporary and Prefabricated Structures. No shed, shack, trailer or any temporary
building, improvement or structure shall be placed upon any portion of a Residential Lot without
the prior approval of the Architectural Committee. The foregoing excludes construction trailers
and other temporary or prefabricated structures or improvements utilized during construction and
sales activities by the Declarant or a Merchant Builder.
27.13 Mining and Drilling. The surface of a Lot shall not be used for the purpose of c
mining, quarrying, drilling, boring or exploring for or removing water, oil, gas or other V
hydrocarbons, geothermal heat, minerals; rocks, stones, gravel or earth, nor shall oil wells, tanks, «
tunnels, mineral or geothermal excavations or shafts be permitted upon the surface of any portion Q
of a Lot. 2
7.14 View Impairment. There is no representation that any view exists from any Lot.
Each Owner, by accepting a deed to a Residential Lot, acknowledges that grading of,
construction on or installation of improvements, including landscaping and the growth of
'landscaping, on other Lots within the Covered Property and on surrounding real property may
impair whatever view may exist from the Owner's Residential Lot and each Owner consents to
. such impairment and waives any claim for view impairment. Each Owner and the Community
Association, by accepting a deed to a Lot or any Community Association Property, respectively,
acknowledges that any construction or installation by Declarant or a Merchant Builder or by
other Owners following Architectural Committee approval as provided in Article 6 hereof may
impair the view of such Owner, and each Owner and the Community Association on behalf of
the Members hereby consent to such impairment.
7.15 Landscaping. Within six (6) months after the close of escrow for the sale of a
Residential Lot under a Public Report by a Merchant Builder to a retail purchaser, the Owner
shall submit plans for approval of landscaping to the Architectural Committee. Within one
(l)year after the close of escrow, for sale of a Residential Lot under a Public Report by a
Merchant Buyer the Owners shall install and shall thereafter maintain plants, shrubs, trees and
any other appropriate landscaping improvements, pursuant to plans and specifications approved
by the Architectural Committee, on the Residential Lot. No plants or seeds infected with insects
or plant diseases, shall be brought upon, grown or maintained upon any Residential Lot. If any
Owner fails to install or maintain landscaping in conformance with the Community Design
Standards or allows his or her landscaping to deteriorate to a dangerous, unsafe, unsightly or
unattractive condition, the Community Board, upon thirty (30) days' prior written notice to the
Owner, shall have the right either to seek any remedies at law or in equity which it may have or
to correct such condition and to enter upon the Owner's property for the purpose of doing so, and
the Owner shall promptly reimburse the Community Board for the cost thereof. Each Owner
whose Residential Lot is located within a Habitat Preserve Adjacent Area shall also comply with
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the requirements of Section 7.30 regarding the plant species that may be planted in a Habitat
Preserve Adjacent Area.
7.16 Parking and Vehicular Restrictions. None of the following (collectively
"Prohibited Vehicles") shall be parked, stored or kept on any street within the Covered Property:
any large commercial type vehicle (including, but not limited to, any dump truck, cement mixer
truck, oil or gas truck or delivery truck); any recreational vehicle (including, but not limited to,
any camper unit, house/car or motor home); any bus, trailer, trailer coach, camp trailer, boat,
aircraft or mobile home; any inoperable vehicle or any other similar vehicle; or any vehicle or
vehicular equipment, mobile or otherwise, constituting a nuisance, except that the foregoing shall
not restrict any recreational vehicles permitted to be parked in the Recreational Vehicle Storage
Area. No Prohibited Vehicle shall be parked, stored or kept on any Residential Lot except 2
wholly within an enclosed garage, and then only if the garage door is capable of being fully g
closed. Prohibited Vehicles shall not be allowed in any driveway or other exposed parking areas, *
or any street (public or private), except for the purposes of loading, unloading, making deliveries J*
or emergency repairs ("Transitory Use"), provided that no Transitory Use shall extend over more 0
than twenty-four hours during any seven (7) consecutive days. Vehicles owned, operated or 3
within the control of an Owner, or of a resident of the Owner's Residential Lot, shall be parked
in the garage. Garages shall be used only for parking authorized vehicles, and shall not be used
for storage, living or business purposes, or any other purpose which prevents the storage of the
number of vehicles for which the garage was assigned; provided, however, if the Lot contains a
three (3) or more car garage, one parking space within the garage may be used for storage or may
be converted for living purposes if approved by the City and the Architectural Committee.
. Garage doors shall be kept closed at all times, except as reasonably required for ingress to and
egress from the interiors of the garages.. No repairs or restorations of any motor vehicle, boat,
trailer, aircraft or other vehicle or equipment shall be conducted upon any street, Lot or
elsewhere within the Covered Property, except wholly within an enclosed garage; provided,
however, that such activity is not undertaken as a business, and provided further that such
activity is prohibited entirely if it constitutes a nuisance. Any repair which continues for a period
exceeding sixty (60) days in any one (1) year period shall be deemed a storage. These
restrictions shall not be interpreted in such a manner so as to permit any activity which would be
contrary to any ordinance of the City or other Governmental Agency having jurisdiction over the
Covered Property.
7.17 Further Subdivision. No Residential Lot may be further subdivided (including
division into time-share estates or time-share uses) without the prior written approval of the
Community Board; provided, however, that nothing in this Section shall be deemed to prevent an
Owner, including Declarant and the Merchant Builders, from selling a Residential Lot to more
than one person to be held by them as tenants in common, joint tenants, tenants by the entirety or
as community property, or leasing or renting by any Owner of all of his or her Residential Lot by
means of a written lease or rental agreement, or adjusting the boundary of a Residential Lot by
boundary adjustment or parcel map.
7.18 Animals. No animals, fowl, poultry, fish, reptiles or insects of any kind
("animals") shall be raised, bred or kept on any Residential Lot, except that a reasonable number
of birds, fish, dogs, cats or other household pets may be kept, provided that they are not kept,
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bred or maintained for any commercial purpose, nor in unreasonable quantities nor in violation
of any applicable law or ordinance. No animal shall be maintained in any Residential Lot which
constitutes a nuisance to other Owners of Residential Lots. Animals belonging to Owners,
occupants or their licensees, tenants or invitees must be either kept within the enclosure, an
enclosed yard, or on a leash or bridle being held by a person capable of controlling the animal.
Furthermore, to the extent permitted by law, any Owner shall be liable to each and all Owners,
their Invitees, for any unreasonable noise or damage to person or property caused by any animals
brought or kept upon the Covered Property by an Owner or by such Owner's Invitees and it shall
be the duty and responsibility of each Owner to clean up after such animals which have used any
portion of the Covered Property. Notwithstanding the foregoing, the Community Handbook may
further limit or restrict the keeping of such pets. The Community Board shall specifically have
the power to prohibit the keeping or maintenance of any animal, which, in the opinion of the 2
Community Board, after Notice and Hearing, is deemed by the Community Board to constitute a C
nuisance to any other Owner in the sole and exclusive opinion of the Community Board. «
7.19 Signs. No sign, poster, billboard, balloon or other display or advertising device of 8
any kind shall be displayed on, over or from any portion of the Covered Property, except (i) such j
signs, flags, poles and banners (regardless of size or configuration) as may be used by Declarant
or the Merchant Builders in connection with the development of the Covered Property and the
sale, lease or other disposition of Residential Lots, (ii) entry monuments and similar community
identification signs, and (iii) one sign on each Residential Lot advertising the Residential Lot for
sale or lease in conformance with the Community Design Standards and any ordinances of the
City. All signs shall conform to the sign ordinances of the City, and shall when required by City
Ordinance be reviewed and approved by the Planning Director of the City prior to installation.
7.20 Trees. All trees, hedges and other plant materials shall be trimmed by the Owner
of the Residential Lot upon which they are located so they do not create a nuisance, which
determination shall be within the sole judgment of the Community Board. Before planting any
trees, the proposed location of the trees shall be approved in writing by the Architectural
Committee, except that this restriction shall not apply to any trees planted by Declarant or a
Merchant Builder on a Residential Lot. Any replacement of trees and hedges planted by
Declarant or a Merchant Builder may only be replaced with the same tree or hedge, unless the
Owner demonstrates to the Architectural Committee that the original tree or hedge is not suitable
for such location due to its size or due to its susceptibility to disease. Each Owner whose
Residential Lot is located within a Habitat Preserve Adjacent Area shall also comply with the
requirements of Section 7.30 regarding the plant species that may be planted in a Habitat
Preserve Adjacent Area.
7.21 Slope Control, Use and Maintenance. Each Owner will keep, maintain, water,
plant and replant all slope banks located on the Owner's Residential Lot (other than slopes
within the Common Maintenance Area or any other areas designated for maintenance by others
in a Supplementary Declaration) to prevent erosion, control brush in accordance with the
requirements of the City and to create an attractive appearance. It shall be the duty of all Owners
to conduct all construction and installation of improvements on such slopes in accordance with
any guidelines or rules adopted by the Community Board for maintenance of such slopes.
Thereafter each Owner shall keep, maintain, water, and replant all slopes in such a manner as to
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protect the integrity of such Owner's Residential Lot and all adjoining Residential Lots and the
structural improvements thereon. No Owner of a Residential Lot upon which any Common
Maintenance Area is located shall alter or modify the landscaping, irrigation or other
Improvements located within such Common Maintenance Area, and such Owners shall not
install Improvements of any kind within such Common Maintenance Area and is only permitted
to enter such Common Maintenance Area only as is reasonably necessary to maintain, construct
or repair Improvements on the portion of such Owner's Residential Lot located adjacent to such
Common Maintenance Area if prior approval of the Community Board is obtained. No structure,
planting or other material shall be placed or permitted to remain or other activities undertaken on
any slope banks which may damage or interfere with established slope ratios, create erosion or
sliding problems, or which may change the direction of flow of drainage channels or obstruct or
retard the flow of water through drainage channels. o
7.22 Habitat Preserve Areas. Any Owner of a Lot within a Habitat Preserve Adjacent 0
Area shall comply at all times, with the Habitat Preserve Restrictions. The Community 3
Association shall also, at all times comply with the Habitat Preserve Restrictions to the extent Q
they effect the Community Association Property or Common Maintenance Areas. For each r
Owner's information, educational materials prepared by the Habitat Preserve Manager are
attached hereto as Exhibit "C".
7.23 Erosion Control. Prior to installing any landscaping on an Owner's Residential
Lot, the Owner shall be responsible for ensuring that there is no runoff from the Owner's
Residential Lot and the Owner shall be required to take such action as may be reasonably
necessary to prevent any runoff, including, if required by the City or any Governmental Agency,
installing landscaping in advance of the time periods set forth in Section 7.15. During
landscaping of an Owner's Residential Lot, landscaping and construction materials must be
stored only upon the Owner's Residential Lot. Such materials must be properly contained to
prevent spillover into the streets or Community Association Property or Common Maintenance
Areas or any other areas within the La Costa Oaks Community. Should spillover occur, spilled
material must be swept and containerized. Spilled materials shall not be washed into the storm
water curb drain inlets. Temporary erosion or sediment control devices (which may include
sandbags) may have been installed by Declarant or Merchant Builders during construction of the
La Costa Oaks Community. Owners shall not remove any temporary erosion or sediment control
devices installed by Declarant until the Owner's Lot is landscaped and the plantings are
established. Each Owner is responsible for preventing sediment leaving Owner's Residential
Lot. Each Owner shall be liable to the Declarant and any Merchant Builder for any damage
resulting from failure to prevent sediment from leaving the Owner's Residential Lot.
7.24 La Costa Oaks Storm Drains and Storm Water. Each Owner and the Community
Association acknowledge that water that enters a storm drain flows directly to natural sourcgs of
water, including waterways, creeks, drains, rivers, lakes and that erosion has an impact on the
environment. Unlike the water in the sewer system in the Residence which is being purchased
by an Owner, which flows to wastewater treatment plants, water that enters a storm drain flows
directly, without any treatment, to waterways, creeks, streams, rivers, lakes and/or oceans. The
National Pollution Discharge Elimination System, the Federal Clean Water Act, and the policies
and ordinances of the City in effect as of the date of this Declaration, prohibit discharging
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anything other than natural rain water into storm drainage systems, including gutters and streets
which drain into storm drains. Toxic chemicals or hydrocarbon compounds such as gasoline,
motor oil, antifreeze, solvents, paints, paint thinners, wood preservatives, fertilizers, lawn
clippings, yard waste, detergents, pet waste, paints and other such materials and pollutants shall
not be discharged into any street, public or private, gutters, or into storm drains or storm water
conveyance systems. Owner and the Community Association further acknowledge that the
disposal of such pollutants and materials into a storm drain system may result in significant
penalties and fines and that such Owner may be responsible for any activities by Owner's
contractors (e.g., painters, landscapers, etc.) who dispose of such pollutants from an Owner's Lot
into a storm drain system. All Owners are required to comply with such restrictions. Owners are
encouraged to consult with the City and other Governmental Agencies concerning the proper -
disposal of any toxic or hazardous materials. Dumping any such materials into sewers, gutters or 2
storm drains is prohibited by this Declaration and against the law. (3
37.24.1 Storm Water Pollution Prevention Best Management Practices. To A
comply with the requirements of the City and other governing jurisdiction in connection with the «
storm water pollution prevention best management practices, each Owner and the Community 0
Association agrees that it will, at all times, maintain all Improvements and erosion control
devices located within a Lot owned by such Owner or the Community Association, in a clean
and safe condition, free and clear of any and all debris. All landscaping shall be maintained by
an Owner (including the Community Association as to Lots or easements maintained by the
Community Association) in a manner that will prevent soil erosion and minimize sediment
transport. To the extent that the Declarant or any Merchant Builder has installed any erosion
protection devices (e.g., sandbags) an Owner (including the Community Association) shall not
remove such devices unless and until all landscaping has been installed on any Lot, and has been
sufficiently grown so as to prevent soil erosion and transport of any sediment. All trash
receptacles shall be covered and closed at all times. The Community Association and the
Owners shall comply with all applicable Best Management Practices ("BMP") and perform all
maintenance that may be imposed by any water quality management plan that may affect the
Property. The costs of the Community Association's portion of such maintenance, if any, shall
be treated as Common Expenses.
7.24.2 Liability to Declarant. So long as Declarant or any Merchant Builder
owns any Lot within the Project, if an Owner or the Community Association is not in compliance
with the provisions of this Section and as a result, Declarant or a Merchant Builder incur any
liability, Declarant or the Merchant Builder shall have the right but not the obligation to enter
upon the Lot to correct such violation. Any Owner who violates the requirements of this
Section shall indemnify, protect, defend and hold Declarant and the applicable Merchant Builder
and the Declarant's and Merchant Builder's officers, directors, successors and assigns entirely
free and harmless from and against any liabilities, penalties, costs, expenses and actions,
including, without limitation, attorneys' fees and costs arising from or attributed to a violation of
the provisions of this Section and shall, within fifteen (15) days after request from Declarant
and/or the Merchant Builder, reimburse Declarant and/or the Merchant Builder for any costs and
expenses incurred by Declarant and/or the Merchant Builder in correcting any violation by any
Owner or the Community Association of this Section.
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7.25 Fire Suppression Zones. Certain Residential Lots in the La Costa Oaks
Community are included within the Fire Suppression Zones, for which there are certain
guidelines and regulations with respect to the use and maintenance thereof by the Owners,
imposed by the City and other Governmental Agencies. Each Owner whose Residential Lot is
within a Fire Suppression Zones shall be required to comply with the requirements imposed by
the City, including without limitation, Section 4.7.9 of the Master Plan for the Villages of La
Costa and any other applicable guidelines or regulations as may be adopted by the City, the
County, or other Governmental Agency from time to time. By accepting a deed to a Residential
Lot in the La Costa Oaks Community, each Owner acknowledges that there may be restrictions
on flammable structures, trees or shrubs in the Fire Suppression Zone. Each Owner shall comply
with the restrictions on the Fire Suppression Zones set forth on Exhibit "F" attached hereto and
incorporated herein and any additional restrictions which may be set forth in a Supplementary I
Declaration. All Fire Suppression Zones within the Covered Property shall be designated in a 6
Supplementary Declaration. Q
7.26 Window Coverings. Temporary window coverings ("Temporary Window 0
Coverings") in a design and color that does not conflict with the surrounding Improvements (but /
excluding aluminum foil, newspapers, or any other contrasting material) shall be permitted for a
maximum period of sixty (60) days from the date that a Residential Lot is conveyed to an Owner
by Declarant or a Merchant Builder, Except as specifically provided above, no Temporary
Window Coverings shall be used to cover any door or window of any Residence. All window
coverings (including Temporary Window Coverings) shall be of a neutral color harmonious with
and not conflict with the color scheme of the exterior wall surface of the Residence on the
Residential Lot.
7.27 Exterior Painting. All exterior painting of a Residence shall be subject to the
approval of the Architectural Committee, unless the painting is of the same color as the then
current color of the exterior of the Residence.
7.28 Restrictions. All backyard lighting installed in Residential Lots within the Habitat
Preserve Adjacent Areas shall be shielded to prevent any light spill over onto the Habitat
Preserve Areas. Shielding can consist of the installation of fixtures that physically direct light
away from the Habitat Preserve Adjacent Areas or landscaping berms or other barriers at the
edge of the Residential Lots that prevent light over spill into the Habitat Preserve Areas.
7.29 Sight Distance Corridors. No structure, fence, wall, tree shrub sign or other
object over thirty (30) inches above the street level may be placed or permitted to encroach
- within the areas identified as a sight distance corridor on the Final Maps as specified in the City
Standard Public Street Design Criteria (Section 8.B.3.). Each Owner shall comply with this
restriction.
7.30 Plant Species. Neither the Community Association nor any Owner shall plant or
use in its landscaping any Invasive Plant Species in any Habitat Preserve Adjacent Areas. The
Invasive Plant Species are set forth in Exhibit "G" attached hereto and incorporated herein.
7.31 Perimeter Wall and Fence. In no event can any Owner make any alterations to
any Perimeter Wall and Fence or remove or replace any Perimeter Wall and Fence, or modify
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any Perimeter Wall and Fence in connection with any construction on an Owner's Lot. All
alterations, repairs and replacements of the Perimeter Walls and Fences can only be made by the
Community Association.
7.32 Owner Liability. Each Owner shall be liable to the remaining Owners for any
damage to the Community Association Property and Common Maintenance Areas that may be
sustained by reason of the negligence of that Owner, or the Owner's Invitees.
ARTICLE 8
ASSOCIATION PROPERTY. COMMON MAINTENANCE
AREA AND MAINTENANCE RESPONSIBILITIES 2
c
8.1 Maintenance and Use of Community Association Property. The Community «
Association shall maintain the Community Association Property and Common Maintenance
Areas in a good condition of maintenance and repair reasonably consistent with the level of
maintenance reflected in the most current Budget and in accordance with the obligations and
schedules for maintenance set forth in the Maintenance Manual.
8.2 Trail System. The Community Association shall maintain the Trail Systems
unless the City accepts the dedication of any portion of the Trail Systems, in which case the City
shall be responsible for the maintenance of the portions of the Trail System where the dedication
was accepted. There is no guarantee that the City will accept and be responsible for the
. maintenance of all or any portion of the Trail System.
8.3 Compliance with Best Management Practices. Each Owner and the Community
Association shall comply with all Best Management Practices. The Community Association
shall also comply with all Best Management Practices.
8.4 Common Maintenance Area. The Common Maintenance Area shall include
portions of Lots and adjacent public property, (including portions of the Rancho Santa Fe Road
median) or public rights of way or any other lots or easements, the obligation of maintenance for
which is placed upon the Community Association by this Declaration, any easements for the
Common Maintenance Areas or other appropriate document. An easement or right over an area
which otherwise would be Common Maintenance Area may be conveyed to a public assessment
district, in which event the area conveyed shall be maintained by the public assessment district.
The obligation of the Community Association to maintain the Common Maintenance Area shall
commence in phases as the maintenance obligations for portions of the Common Maintenance
Area are assigned to the Community Association by Declarant or are the subject of Common
Maintenance Area easements or licenses entered into by Declarant and the Community
Association.
8.4.1 Obligation to Maintain Certain Public Areas. Some of the areas which
may become subject to Community Association maintenance may include entry monuments,
trails, parkways or other improvements in public general utility easement areas or other rights of
way, and a Declarant shall have the right to transfer such maintenance and related obligations to
the Community Association. For example, a Declarant may enter into "Encroachment Removal
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Agreements" with the City which provide for maintenance, indemnity, insurance and related
obligations. All such obligations shall be automatically transferred to the Community
Association at such time as the Community Association becomes obligated to maintain the area.
The Community Association will be obligated to maintain a particular public area from and after
the date specified by a Declarant in this Community Declaration, a Notice of Declaration of
Annexation or other instrument by which such maintenance obligation is transferred to the
Community Association. However, maintenance by the Community Association is subject to the
City allowing such maintenance.
8.5 Community Association Maintenance. The Community Association shall
maintain and provide for the maintenance of all the Community Association Property and
Common Maintenance Area and all Improvements thereon, including any trails, in good repair 2
and appearance as set forth in this Declaration and in accordance with the requirements of the fj
City and the Maintenance Manual. The Community Association is obligated to comply with all 0
the maintenance obligations and schedules set forth in the Maintenance Manual provided by A
Declarant for the Community Association Property and Common Maintenance Areas. The 0
Community Association shall provide landscaping and gardening properly to maintain and 9
periodically replace when necessary the trees, plants, grass and other vegetation placed in the
Community Association Property and Common Maintenance Area pursuant to landscape plans
approved by the City. The Community Association shall maintain all concrete terrace drains
located within the Community Association Property and Common Maintenance Area in good
working condition. Unless otherwise specified in a Supplementary Declaration, the Community
Association will maintain the cluster mailboxes in the La Costa Oaks Community. All brush on
the Community Association Property and Common Maintenance Areas shall be maintained in
accordance with the specifications of the City Landscape Guidelines Manual. The Community
Association shall have the right to enter onto any Lot (but not within the Residence of any
Residential Lot) as may be necessary for the construction, maintenance or emergency repair of
the Community Association Property or Common Maintenance Area or, if necessary, for the
benefit of the Owners in common, including the maintenance arid repair of surface and
subsurface drainage pipes and facilities. The drainage facilities shall be maintained by the
Community Association until such time as these facilities may be accepted for maintenance by
the City. The maintenance shall include removal of trash and debris, and ensuring that all
drainage facilities remain in good working order. Any damage caused to a Lot by entry of the
Community Association shall be repaired by the Community Association at its expense. The
Community Association shall, retain the services of consultants to periodically review and
inspect the Community Association Property and Common Maintenance Area to ensure
adequacy of the Community Association's maintenance program.
8.6 Commencement of Maintenance. Notwithstanding any conveyance of
Community Association Property to the Community Association, the Community Association's
responsibility to maintain the Community Association Property located in any Phase shall not
begin until (i) the Community Association Property is completed in accordance with the plans
approved by the City and (ii) annual Assessments in such Phase have commenced; except that, if
such Phase consists of only Community Association Property, the Community Association's
maintenance responsibility therefor shall commence on the later to occur of (a) completion of the
Community Association Property in accordance with the plans therefor approved by the City, or
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(b) the first day of the month immediately following the month in which the deed is recorded
conveying such property to the Community Association. Notwithstanding the foregoing, if the
contractors or subcontractors of Declarant or a Merchant Builder are contractually obligated to
maintain the landscaping or other Improvements on the Community Association Property, the
Community Association shall not interfere with the performance of such warranty or other
contractual maintenance obligations. Such maintenance performed by the contractors or
subcontractors of Declarant or a Merchant Builder shall not postpone the commencement of
Regular Assessments pursuant to this Declaration nor entitle an Owner to claim any offset or
reduction in the amount of such Assessments. If the Community Association Property or any
other portion of the Community Association Property is dedicated to and accepted for
maintenance by a Governmental Agency, then the Community Association may, but need not,
maintain the area if the Governmental Agency either fails to maintain the area or elects to cease I
maintaining the area. •• 6
3
9
8.7 Drainage Facilities. The Community Association shall maintain in good repair Q
and condition all drainage facilities located in the Community Association Property and
Common Maintenance Area and Public Use Areas (to the extent required by the City), including,
but not limited to, vegetated swales, riprap swales, concrete terrace drains, inlets, cleanouts,
subsurface drainage pipes, and outlets. In addition, the Community Association shall maintain
the riparian areas located on portions of Community Association Property and Common
Maintenance Areas.
8.8 Repair and Maintenance by Owners. Each Owner shall keep and maintain in
good repair and appearance all portions of his or her Residential Lot and Improvements thereon
(other than that portion the maintenance of which is the responsibility of the Community
Association or a public maintenance assessment district), including, but not limited to, any fence
or wall, concrete terrace drain or drainage swales which is located on the Owner's Lot. The
Owner of each Residential Lot shall water, weed, maintain and care for the landscaping located
on his of her Residential Lot (other than that portion the maintenance of which is the
responsibility of the Community Association or a public maintenance assessment district) so that
the same presents a neat and attractive appearance, free from weeds, trash and debris. No Owner
shall interfere with or damage the Common Maintenance Area nor interfere with or impede
Declarant, the Community Association or a public maintenance assessment district in connection
with the maintenance of the Community Association Property or Common Maintenance Area.
Without limiting the generality of the foregoing, except for the obligations of the Community
Association to repair and maintain any Common Maintenance Area, situated on a Residential Lot
every Owner shall perform the maintenance obligations set forth below.
8.8.1 Exterior of Residence. Each Owner shall maintain the exterior of the
Owner's Residence and/or other Improvements on such Owner's Residential Lot, including,
without limitation, the interior of any walls and fences (and the exterior of any walls and fences,
if the exterior is not maintained by another Owner) in good condition and repair and in
accordance with the Community Design Standards and all requirements of the City.
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Landscaping shall be installed and maintained in accordance with the La Costa Oaks
maintenance plan or as otherwise approved by the Planning Director for the City.
8.8.2 Landscaping. The Owner of each Residential Lot shall water, weed,
maintain and care for the landscaping located on his or her Residential Lot (other than that
portion the maintenance of which is the responsibility of the Community Association or a public
maintenance assessment district) so that the same presents a neat and attractive appearance; free
from weeds, trash and debris and in accordance with any other standards for maintenance set
forth in this Declaration and in accordance with all requirements of the City.
8.8.3 Interior Fencing Between Two Residential Lots. For any fencing which
separates two (2) Residential Lots, each Owner shall have the obligation to maintain the interior 2
of the fence and the Owners shall share, on an equitable basis, the cost of replacing such fencing. £
The Owner of each affected portion of the Covered Property upon which a party wall or fence is «
located shall have a reciprocal, non-exclusive easement to the Covered Property immediately «
adjacent to the interior fence for the limited purpose of maintaining the party wall or fence. 9
18.8.4 Fencing Separating Residential Lots and Community Associations
Property. Any Owner whose fencing borders Community Association Property shall maintain
the interior of the fencing facing the Owner's Residential Lot and the maintenance of the exterior
and repair and replacement of the fencing shall be the responsibility of the Community
Association.
8.9 Community Association's Right to Repair Neglected Lots. If an Owner of a
Residential Lot should fail to maintain such Owner's Residential Lot and Improvements on the
Residential Lot in a manner satisfactory to the Community Board, the Community Association,
after approval by two-thirds (2/3) vote of the Community Board, shall have the right (but not the
obligation) through its agents and employees, to enter onto the Residential Lot solely for the
purpose of correcting the violation on the Residential Lot. However, such entry shall be subject
to Section 4.1.2 of this Declaration. Entry onto a Residential Lot by the Community Association
shall be made with as little inconvenience to the Owner as possible and any damage caused by
the Community Association shall be repaired by the Community Association. The cost of
exterior maintenance shall be added to and become a part of the assessment to which the Lot is
subject. There is hereby granted an easement in favor of the Community Association to enter
onto each Residential Lot to correct such violations as set forth in this Section.
8.10 Landscape and Irrigation Maintenance. All landscaping by the Community
Association must be maintained in accordance with the La Costa Oaks maintenance plan or as
otherwise approved by the Planning Director of the City. The Community Association shall
employ the services of a professional landscape architect, maintenance contractor or other such
professional person to assist the Community Association in performing its duties hereunder. The
inspectors shall provide written reports of their inspections to the Declarant and the Community
Association promptly following completion thereof. The written reports shall identify any items
of maintenance or repair which either require current action by the Community Association or
will need further review and analysis. Such written reports shall specifically include a review of
all irrigation and drainage systems within the La Costa Oaks Community. The Community
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Board shall report the contents of such written reports to Declarant (if not already provided by
the inspector directly) and to the Members of the Community Association at the next meeting of
the Members following receipt of such written reports or as soon thereafter as reasonably
practicable and shall include such written reports in the minutes of the Community Association.
The Community Board shall promptly cause all matters identified as requiring attention to be
maintained, repaired, or otherwise pursued in accordance with prudent business practices and the
recommendations of the inspectors. Should such inspection require the inspection of any
Residential Lot, there is hereby created a nonexclusive easement in favor of the Community
Association, and its officers, agents, employees and independent contractors, to conduct such
inspections and to correct any violations of this Declaration of the other Governing Documents
by an Owner which entry shall be subject to the provisions of this Declaration. Any damage to
any structure, landscaping or other improvements caused by the Community Association, or any 2
of its officers, agents, employees or independent contractors, while performing such g
maintenance, repair or replacement work shall be repaired by the Community Association at its ^
sole cost and expense. *.
3
ARTICLE 9 2
INSURANCE AND CONDEMNATION
// is important that the Community Association maintain insurance. This
Article discusses the insurance which the Community Association will be required to maintain
and also discuss the obligations of the Owners for insurance.
9.1 Insurance. The Community Association, to the extent available, shall obtain and
continue in effect, in its own name, the types of insurance set forth below.
9.1.1 Fire and Extended Coverage Insurance. The Community Association shall
keep (i) any Improvements on the Community Association Property and Common Maintenance
Area insured against loss by fire and the risks covered by a standard all risk of loss perils
insurance policy under an extended coverage casualty policy in the amount of the maximum
insurable replacement value thereof, and (ii) all personal property owned by the Community
Association insured with coverage in the maximum insurable fair market value of personal
property as determined annually by an insurance carrier selected by the Community Association.
Insurance proceeds for improvements in the Community Association Property and Common
Maintenance Area and personal property owned by the Community Association shall be payable
to the Community Association. Insurance proceeds for Improvements in the Community
Association Property and/or personal property owned by the Community Association shall be
payable to the Community Association. In the event of any loss, damage or destruction to the
Community Association Property (excluding Residential Lots), the Community Association shall
cause the same to be replaced, repaired or rebuilt in accordance with the provisions of this
Declaration. Premiums for all insurance carried by the Community Association are a Common
Expense.
(a) Description of Policy Coverages. The policy shall cover the
following real and personal property:
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(i) Community Association Property. All Improvements, if
any, within the Community Association Property and Common Maintenance Areas; but
excluding land, foundations, excavations, and other items typically excluded from property
insurance coverage; and
(ii) Landscaping. Lawn, trees, shrubs and plants located in the
Community Association Property and Common Maintenance Areas.
(b) Covered Cause of Loss. The policy shall provide coverage against
losses caused by fire and all other hazards normally covered by a "special form" policy or its
equivalent.
2(c) Primary. The policy shall be primary and noncontributing with c
any other insurance policy covering the same loss. ij
(d) Endorsements. The policy shall contain such endorsements as the 9
Community Board in its discretion shall elect. 0
(e) Waiver of Subrogation. Except as provided in Section 7.32, the
Community Association waives all rights of subrogation against the Owners and their Invitees.
All insurance policies obtained by the Community Association shall include a waiver of all
subrogation rights against any Owner and their Invitees; provided, however, that a failure or
inability of the Community Association to obtain such a waiver shall not defeat or impair the
. waiver of subrogation rights between the Community Association and the Owners and their
Invitees set forth herein.
9.1.2 Liability Insurance. The Community Association shall procure and keep
in force public liability insurance in the name of the Community Association and the Owners
against any liability for personal injury or property damage resulting from any occurrence in or
about the Community Association Property or Common Maintenance Area with such minimum
limits are set forth in Section 1365.9 of the California Civil Code, insuring against liability for
bodily injury, death and property damage arising from the Community Association's activities or
with respect to property the Community Association maintains or is required to maintain
including, if obtainable, a cross-liability endorsement insuring each insured against liability to
each other insured.
9.1.3 Fidelity Bond. The Community Association shall maintain a fidelity bond
in an amount equal to the amount of funds held by the Community Association during the term
of the bond but not less than one-fourth (1/4) of the annual Regular Assessments plus reserves,
naming the Community Association as obligee and insuring against loss by reason of the acts of
the Community Board, officers and employees of the Community Association, and any
management agent and its employees, whether or not such persons are compensated for their
services.
9.1.4 Worker's Compensation Insurance. The Community Association shall
maintain worker's compensation insurance to the extent necessary to comply with all applicable
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laws of the State of California or the regulations of any governmental body or authority having
jurisdiction over the La Costa Oaks Community.
9.1.5 Directors and Officers. The Community Association shall obtain directors
and officers insurance to cover the officers and directors of the Community Association against
liability for their negligent acts or omissions while acting in their capacity as officers and
directors. The limits of such insurance shall not be less than One Million Dollars for all claims
arising out of a single occurrence or such other minimum amount which meets the requirements
of California Civil Code Section 1365.7.
9.1.6 Other Insurance. The Community Association shall maintain other types
of insurance as the Community Board determines to be necessary to fully protect the interests of 0
the Owners. Anything contained herein to the contrary notwithstanding, the Community R
Association shall maintain such insurance coverage as may be required by the Federal National V
Mortgage Community Association ("FNMA") or the Federal Home Loan Mortgage Corporation «
("FHLMC") so long as FNMA or FHLMC, respectively, holds a mortgage on or owns any Lot. 9
49.2 Copies of Policies. Copies of all insurance policies (or certificates) showing the
premiums to have been paid shall be retained by the Community Association and open for
inspection by Owners at any reasonable time(s). All insurance policies shall (i) provide that they
shall not be cancelable by the insurer without first giving at least ten (10) days' prior notice in
writing to the Community Association, and (ii) if obtainable, contain a waiver of subrogation by
the insurers) against the Community Association, Community Board and Owners.
9.2.1 Insurance to Satisfy Civil Code. Section-1365.7 of the California Civil
Code provides for a partial limitation on the liability of volunteer officers and directors of the
Community Association, provided that certain requirements, as set forth in the Code Section are
satisfied. The requirements include that general liability insurance and officers' and directors'
liability insurance be carried by the Community Association in specified amounts. The
Community Association shall maintain general liability insurance and officers' and directors'
liability insurance in amounts which satisfy the requirements of the California Civil Code
Section 1365.7 or any successor statute or law to limit the liability of volunteer officers and
directors of the Community Association.
9.2.2 Reimbursement of Community Association. In the event any insurance
policy deductible amount relating to an Owner's property loss is charged to the Community
Association, the Owner shall reimburse the Community Association upon written demand for the
amount charged to the Community Association.
9.3 Review of Insurance. The Community Board shall review the adequacy of all
insurance at least once every year. The review shall include a replacement cost appraisal of all
insurable Improvements within the Community Association Property without respect to
depreciation. The Community Board shall adjust and modify the policies to provide coverage
and protection that is customarily carried by and reasonably available to prudent owners of
similar property in the area in which the La Costa Oaks Community is situated.
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9.4 Individual Insurance. Each Owner shall maintain property insurance against
losses to real and personal property located within the Residential Lot, including the Residence
and to any upgrades or Improvements to any fixtures or Improvements located within the
Residential Lot and liability insurance against any liability resulting from any injury or damage
occurring within the Residential Lot. The Community Association's insurance policies will not
provide coverage against any of the foregoing. All Owners hereby waive all rights of
subrogation against the Community Association, and any insurance maintained by an Owner
must contain a waiver of subrogation rights by the insurer as to the Community Association;
provided, however, that a failure or inability of an Owner to obtain such a waiver shall not defeat
or impair the waiver of subrogation rights between the Owners and the Community Association
set forth herein. If any Owner violates this provision and, as a result, there is a diminution in
insurance proceeds otherwise payable to the Community Association, the Owner will be liable to 2
the Community Association to the extent of the diminution. The Community Association may g
levy a Special Services Assessment against the Owner's Residential Lot to collect the amount of o
the diminution. »
9.5 Condemnation. If the Community Association Property or any portion thereof
shall be taken for public purposes by condemnation as a result of any action or proceeding in
eminent domain, or shall be transferred in lieu of condemnation to any authority entitled to
exercise the power of eminent domain, then the award or consideration for such taking or
transfer shall be paid to and belong to the Community Association.
ARTICLE 10
DESTRUCTION OF IMPROVEMENTS
The Community Association will have certain obligations if there is damage or
destruction to Community Association Property or Common Maintenance Areas. As an Owner,
you will also have certain obligations if your Residence or other Improvements are destroyed.
This Article describes those obligations and responsibilities.
10.1 Restoration of Improvements. In the event of partial or total destruction of
Improvements upon the Community Association Property, it shall be the duty of the Community
Association to restore and repair the same to its former condition (or a condition substantially
similar to the former condition or as may be required to comply with the current Governmental
Regulations) as promptly as practical, as hereinafter set forth.
10.1.1 Insurance Proceeds Adequate. If the cost of repairing or rebuilding the
Community Association Property does not exceed the amount of insurance proceeds initially
offered or paid by the insurance carrier by more than ten percent (10%) of the cost of
reconstruction, then the following shall apply:
(a) All insurance proceeds shall be paid to a commercial bank or trust
company designated by the Community Board to be held for the benefit of the Community
Association and the Owners and their Mortgagees, as their interests shall appear.
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(b) The Community Board shall levy a Reconstruction Assessment
against the Owners in the same manner as provided in Article 5 equal to the difference between
the cost of repairing or rebuilding and the amount of available insurance proceeds, which sums
shall be payable into the fund held by the insurance trustee. The Community Board may
advance the amount of the Reconstruction Assessment to the insurance trustee from the
Community Association's Maintenance Funds or Reserves.
(c) When the amount held by the insurance trustee is sufficient to pay
the costs of repair and reconstruction, the Community Board shall thereupon contract for the
repair or reconstruction of the Improvements, paying the cost of such work from the amount held
by the insurance trustee, said repair or reconstruction to be for the purpose of returning the
Improvements substantially to their appearance and condition immediately prior to the casualty. 2
6(d) The Community Association may rebuild such damaged or
destroyed common facilities in a different manner, or in a different location on the Community
Association Property, provided that such Community Board action shall require consent of at
least eighty percent (80%) of the Community Board. If the Community Board cannot reach such
an eighty percent (80%) decision, any such change shall require the vote or written assent of the
Members representing at least a majority of the Voting Power of the Community Association,
and the written consent of a majority of the Mortgagees. In any event, if such changed plans
require additional capital so as to constitute a Capital Improvement Assessment, the written
assent of the Members, cast through Delegates, representing at least a majority of the Voting
Power of the Community Association must be obtained if so required by the requirements of
. Article 4 of this Declaration.
10.1.2 Insurance Proceeds Inadequate. If the cost of such repairing or rebuilding
exceeds the amount of available insurance by more than ten percent (10%) of the cost of
reconstruction, then all insurance proceeds shall be deposited as provided in the Section above
entitled "Insurance Proceeds Adequate" and the Community Board shall require a determination
by written assent or vote of the Members representing at least a Majority of the Voting Power as
to whether a Reconstruction Assessment equal to the difference between available insurance
proceeds and the cost of such repairing or rebuilding shall be levied. Such majority vote must
include at least a two-thirds (2/3rds) majority of the Class A Members. If the Members
determine not to levy such assessment, then the Community Board shall use the insurance
proceeds available to make such restoration or repair as soon as reasonably possible or to clear
I the site of the damaged improvements and landscape the site for park and the costs thereof shall
I be paid for with the insurance proceeds and in such case, any deficiency to remove the damaged
' Improvements and install landscaping may be raised by borrowing such proceeds and levying the
finance and other costs thereof as part of a Reconstruction Assessment or by paying such costs
directly and levying a Reconstruction Assessment in an amount determined by the Community
Board. In the event any excess insurance proceeds remain, the Community Board, in its sole
discretion, may retain such sums in the general funds of the Community Association or
distribute pro-rata all or a portion thereof to the Members, subject to the prior rights of
I Mortgagees whose interest may be protected by insurance policies carried by the Community
Association. The rights of the Owner and the Mortgagee of his or her Lot as to such pro-rata
distribution shall be governed by the provisions of the Mortgage encumbering such Lot.
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10.1.3 Residential Lots. In the event of partial or total damage or destruction of
any Residential Lot within the La Costa Oaks Community, the Owner shall either:
(a) diligently commence to rebuild the same, if the insurance proceeds
and other funds available to the Owner are sufficient to pay the costs of such rebuilding; or
(b) if there are not sufficient funds to rebuild, clear and level the
Residential Lot, remove all wreckage, foundations, slabs, debris and remains of the building or
buildings therefrom and leave the same in a level, clean and landscaped condition.
Upon reconstruction, the Residence shall be rebuilt substantially in accordance with the original
plans and specifications therefor; provided, however, that the exterior appearance thereof shall 0
substantially resemble the appearance in form and color prior to such damage and destruction. £
Notwithstanding the foregoing, however, the Owner of such damaged Improvements may •
reconstruct or repair the same in accordance with new or changed plans or specifications with the -i
prior written approval of the Architectural Committee. 9
ARTICLE 11 '
DEVELOPMENT RIGHTS
Declarant and the Merchant Builders -will, during the course of the La Costa Oaks
Community, be developing and marketing for sale or rental, the residential lots within the La
Costa Oaks Community. In order to assure the Declarant and the Merchant Builder that these
rights will not be limited, the Declarant and the Merchant Builders are reserving certain rights
for development. This Article sets forth those rights which are intended to facilitate the overall
development of the La Costa Oaks Community.
11.1 Limitations of Restrictions. Declarant and the Merchant Builders are undertaking
the work of developing Residential Lots and other Improvements within the La Costa Oaks
Community. The completion of the development work and the marketing and sale, rental and
other disposition of the Residential Lots is essential to the establishment and welfare of the
Covered Property and the Additional Property as a first-class residential community. In order
that the work may be completed and the La Costa Oaks Community be established as a fully
occupied residential community as rapidly as possible, nothing in this Declaration shall be
interpreted to deny Declarant or, to the extent provided below, the Merchant Builders the rights
set forth in this Article.
11.2 Rights of Access and Completion of Construction. Declarant, and to the extent
approved in writing by the Declarant, the Merchant Builders and their contractors and
subcontractors shall have the rights set forth below.
11.2.1 Access. Declarant, the Merchant Builders and their contractors and
subcontractors shall have the right to obtain reasonable access over and across the Community
Association Property and Common Maintenance Areas within any Residential Lot owned by it
whatever is reasonably necessary or advisable in connection with the completion of the La Costa
Oaks Community and the maintenance thereof.
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11.2.2 Construct Improvements. Declarant, and to the extent approved in writing
by the Declarant, the Merchant Builders and their contractors and subcontractors shall have the
right to erect, construct and maintain on the Community Association Property of the La Costa
Oaks Community or within any Residential Lot owned by it such structures or Improvements,
including, but not limited to, sales offices, flags, balloons, banners and signs, as may be
reasonably necessary for the conduct of its business to complete the work, establish the La Costa
Oaks Community as a residential community and dispose of the La Costa Oaks Community in
parcels by sale, lease or otherwise, as determined by Declarant in its sole discretion and to
perform or complete any work to improvements required for Declarant and the Merchant
Builders to obtain a release of any bonds posted by Declarant or the Merchant Builders with the
City.
211.2.3 Grant Easements. Declarant, and the Community Association, shall have />
the right to establish and/or grant over and across said Community Association Property such „
easements and rights of way on, over, under or across all or any part thereof to or for the benefit «
of the State of California, the City or County or any other political subdivision or public 9
organization, or any public utility entity or cable television provider, for the purpose of §
constructing, erecting, operating and maintaining facilities and Improvements thereon, therein or
thereunder at that time or at any. time in the future, including: (i) poles, wires and conduits for
transmission of electricity, providing telephone service and cable television service to the La
Costa Oaks Community and for the necessary attachments in connection therewith; and
(ii) public and private sewers, sewage disposal systems, storm water drains, land drains and
pipes, water systems, sprinkling systems, water, heating and gas lines or pipes and any and all
equipment in connection therewith. The Community Association Property shall be subject to
any dedication stated in the Subdivision Map for the La Costa Oaks Community of an easement
for public use for installation, maintenance and operation of facilities for public utilities over all
of the Community Association Property. Said public utilities easement shall inure and run to all
franchised utility companies and to the City or County and shall include the right of ingress and
egress over the Community Association Property by vehicles of the City or County and such
utility companies to properly install, maintain, repair, replace and otherwise service such utility
facilities. The grant of said public utility easement shall not be interpreted to imply any
obligation or responsibility of any such utility company or the City or County for maintenance or
operation of any of the Community Association Property or the facilities located thereon or the
repair, replacement or reconstruction thereof except as occasioned by such utility companies or
City or County of the utility facilities for which they are responsible. The Community
Association Property shall also be subject to any easements granted by the Declarant to any
public or private entity for cellular, cable or other similar transmission lines. The City and
County furthermore is granted an easement across the Community Association Property and any
private streets situated within any portion of the La Costa Oaks Community for ingress and
egress for use by emergency vehicles of the City or County.
11.2.4 Exemptions. Nothing in the Community Governing Documents limits and
no Owner or the Community Association will interfere with the right of Declarant to subdivide
and resubdivide any portion of the Covered Property or with the right of Declarant and Merchant
Builders, either directly or through their respective agents and representatives, to sell, resell, rent
or rerent any portion of the Covered Property, or the right of Declarant or a Merchant Builder to
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complete excavation, grading, construction of Improvements or other development activities to
and on any portion of the Covered Property owned by Declarant or a Merchant Builder, as
applicable, or to alter the foregoing and the construction plans and designs, or to construct such
additional Improvements as Declarant or a Merchant Builder deems advisable in the course of
developing the Covered Property so long as any Lot in the Covered Property or any portion of
the Community Association Property is owned by Declarant or a Merchant Builder. These rights
include, but are not limited to, carrying on by Declarant, the Merchant Builders, and their
respective agents and representatives of such grading work as may be approved by the
Governmental Agency having jurisdiction, and erecting, constructing and maintaining on the
Covered Property such structures, signs and displays reasonably necessary for the conduct of the
business of completing the work and disposing of the Covered Property and the Community
Association Property by sale, lease or otherwise. Each Owner, by accepting a deed to a *
Residential Lot, acknowledges that any construction or installation by Declarant or a Merchant ^
Builder may impair the view of such Owner, and each Owner consents to such impairment. 0
J
11.2.5 Additional Easements. This Declaration does not limit the right of Q
Declarant or, if approved in writing by Declarant a Merchant Builder, at any time prior to Q
acquisition of title to a Residential Lot by an Owner from Declarant or a Merchant Builder, to "
establish on that Residential Lot, additional licenses, easements, reservations and rights-of-way
to itself, to utility companies, or to others as reasonably necessary to the proper development,
marketing and sale of the Covered Property and Community Association Property. Declarant
and, if approved in writing by Declarant, the Merchant Builders may use any and all portions of
the Community Association Property for access to the sales and leasing facilities of Declarant
and Merchant Builders. Declarant and, if approved in writing by Declarant, Merchant Builders
may use any structures or vehicles owned, respectively, by Declarant or Merchant Builders in the
Covered Property as model home complexes, or real estate sales or leasing offices; provided that
such uses within the Covered Property shall terminate on the last Close of Escrow for the sale of
a Residential Lot in the Covered Property pursuant to a transaction requiring the issuance of a
Public Report, at which time Declarant or Merchant Builders, as the case may be, shall restore
their respective structures to their previous appearance. All or any portion of the rights of
Declarant or a Merchant Builder, as applicable, hereunder and elsewhere in this Declaration may
be assigned by Declarant or such Merchant Builder (with Declarant's prior written consent), as
applicable, to any successor in interest to any portion of Declarant's or Merchant Builder's
interest in any portion of the Covered Property or the Community Association Property
(including without limitation, to any Merchant Builder) by an express written assignment which
specifies the rights of Declarant or such Merchant Builder so assigned. Notwithstanding any
other provision of this Declaration, for so long as Declarant or a Merchant Builder owns any
portion of the Covered Property or the Community Association Property, Declarant or such
Merchant Builder's prior written approval is required before any amendment to this Article 11 or
any other provision effecting the rights or exemptions of Declarant hereunder, is effective.
11.3 Size and Appearance of La Costa Oaks Community. Declarant shall not be
prevented from increasing or decreasing the number of Residential Lots that may be annexed to
the La Costa Oaks Community or from changing the exterior appearance of Community
Association Property structures, the landscaping or any other matter directly or indirectly
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connected with the La Costa Oaks Community in any manner deemed desirable by Declarant, if
Declarant obtains governmental consents required by law.
11.4 Marketing Rights. Subject to the limitations of this Declaration, Declarant and
the Merchant Builders shall have the right to: (i) maintain model homes, sales offices, storage
areas and related facilities in any unsold Residential Lots or Community Association Property
within the La Costa Oaks Community as are necessary or reasonable, in the opinion of
Declarant, for the sale or disposition of the Residential Lots; (ii) make reasonable use of the
Community Association Property, Common Maintenance Areas and facilities situated thereon
for the sale of Residential Lots; (iii) post signs, flags and banners in connection with its
marketing; and (iv) conduct their business of disposing of Residential Lots by sale, lease or
otherwise. 2
fi11.5 Title Rights. This Declaration shall not be construed to constitute a limitation on *
Declarant's title rights to the Additional Property prior to its Annexation, nor shall it impose any 4
obligation on Declarant or any other person or entity to improve, develop or annex any portion of Q
the Additional Property. The rights of Declarant under this Declaration may be assigned to any A
successor(s) by an express assignment in a recorded instrument, including without limitation, a
deed, option or lease. This Declaration shall not be construed to limit the right of Declarant at
any time prior to such an assignment to establish additional licenses, reservations and rights-of-
way to itself, to utility companies or to others as may be reasonably necessary to the proper
development and disposal of property owned by Declarant.
11.6 Amendment. The provisions of this Article may not be amended without the
consent of Declarant until either (i) all of the Additional Property has been annexed to the La
Costa Oaks Community and all of the Residential Lots in the La Costa Oaks Community owned
by Declarant or a Merchant Builder have been sold or (ii) five (5) years after the original
issuance of the most recent Public Report for a Phase in the La Costa Oaks Community
whichever occurs first.
11.7 Declarant Representative. Until the later to occur of the date on which Declarant
(i) no longer owns a Lot in the Covered Property or (ii) no longer has an assignment of a
Merchant Builder's voting rights or (iii) cannot unilaterally annex property to the Covered
Property, the Community Association shall provide Declarant with written notice of all meetings
of the Community Board as if Declarant were an Owner and Declarant shall be entitled, without
obligation, to have a representative present at all such Community Board meetings ("Declarant's
Representative"). The Declarant's Representative shall be in addition to any representative
which the Declarant may have on the Community Board and, if Declarant elects to have an
additional representative, the Declarant's Representative may be present in an advisory capacity
only and shall not be a Community Board member or have any right to vote on matters coming
before the Community Board.
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ARTICLE 12
ANNEXATION
If developed as planned, the La Costa Oaks Community will continue to grow and expand
to include new property. This Article describes how this annexation process occurs. In certain
situations, the Declarant may also de-annex some of the property already covered by this
Declaration. That process is also covered in this Article.
12.1 Annexation. Any of the Additional Property may be annexed to and become
subject to this Declaration by any of the methods set forth hereinafter in this Article. Declarant
intends to sequentially develop the Additional Property on a phased basis. However, Declarant o
may elect not to develop all or any part of such real property, to annex such real property to this «
Declaration in increments of any size whatsoever, or to develop more than one such increment at ^
any given time and in any given order. Moreover, Declarant reserves the right to subject this 4
Declaration to one or more separate declarations of covenants, conditions and restrictions and to Q
subject such property to the jurisdiction and power of a non-profit mutual benefit corporation or 4
other entity with powers and obligations similar to the Community Association and which is not
subject to the provisions of this Declaration. Although Declarant shall have the ability to annex
the Additional Property as provided in this Article, Declarant shall not be obligated to annex all
or any portion of such property, and such property shall not become subject to this Declaration
unless and until a Supplementary Declaration covering it has been recorded.
12.2 Annexation Without Approval. All or any part of the Additional Property may be
annexed to and become subject to this Declaration and subject to the jurisdiction of the
Community Association without the approval, assent or vote of the Community Association or
its Members.
12.3 Covenants Running with the Land. Declarant may transfer all or any portion of
the Covered Property or the Additional Property to a builder under a grant deed wherein
Declarant reserves the right to annex such property and subject it to this Declaration. The
restriction on the Additional Property wherein it may be made subject to this Declaration upon
the recordation of a Supplementary Declaration is hereby declared to be an equitable servitude
upon the Additional Property in favor of the Covered Property and shall run with the land and be
binding on and inure to the benefit of all parties having or acquiring any right, title or interest, in
such Additional Property.
12.4 Supplementary Declarations. If not already annexed, the recordation of a
Supplementary Declaration shall constitute and effectuate the Annexation of said real property
described therein, making said real property subject to this Declaration and subject to the
functions, powers and jurisdiction of the Community Association, and thereafter said annexed
real property shall be part of the Covered Property and subject to all of the terms and provisions
of this Declaration. Supplementary Declarations may also be recorded by Declarant with respect
to a Phase, which may further delineate any Community Association Property, Common
Maintenance Area or Special Benefit Area or Special Benefit Maintenance Areas within such
Phase or contain complementary additions and modifications as provided in this Section 12.4 or
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make minor or technical corrections to this Declaration. In the event that the vote or written
assent of a certain percentage of Members is required to annex or to make technical
modifications or corrections to this Declaration, any property as provided for above, then the
recordation of a Supplementary Declaration certified to by the President or Vice President and
Secretary or Assistant Secretary shall constitute and effectuate the Annexation of said real
property and for the purpose of recording any such instrument, and each owner with the
exception of the Secretary, U.S. Department of Veteran Affairs, an Officer of the United States
of America, hereby grants to the President or the Vice-President and Secretary or Assistant
Secretary of the Community Association an irrevocable power of attorney for and on behalf of
each and every owner in certifying, executing and recording said instrument. The Community
Association shall be entitled to record a Supplementary Declaration to establish a Special Benefit «
Area. Such Supplementary Declarations contemplated above may contain such complementary ~
additions and modifications of the covenants, conditions and restrictions contained in this 6
Declaration as may be necessary to reflect the different character, if any, of the annexed property 4
and as are not inconsistent with the plan of this Declaration. The express desired intention of Q
Declarant is to establish a cohesive plan of such covenants and servitudes to be uniformly n
applicable to the Covered Property, including those portions added thereto by annexation. If the ^
signature or consent of any Merchant Builder which owns any portion of the Covered Property
subject to a Supplementary Declaration is required, such Merchant Builder shall execute and
consent to any such Supplementary Declaration.
12.5 Rights and Obligations of Owners. After the required annexation procedures are
fulfilled, all Owners in the Covered Property shall be entitled to the use of any Community
Association Property in such annexed property, subject to the provisions of this Declaration and
the Community Governing Documents, and Owners of such annexed property shall thereupon be
subject to this Declaration. After each Annexation, the Community Assessments shall be
assessed in accordance with the provisions set forth in Article 5 with the annexed property being
assessed for a proportionate share of the total Common Expenses on the same basis as the other
property in the Covered Property. Community Assessments for the year that such property is
annexed shall be prorated on the basis of a three hundred and sixty (360) day year.
12.6 Mergers or Consolidations. Upon a merger or consolidation of the Community
Association with another association, the Community Association's properties, rights and
obligations may, by operation of law, be transferred to the surviving or consolidated association,
or, alternatively, the properties, right and obligations of another association may, by operation of
law, be added to the properties, rights and obligations of the Community Association as a
surviving corporation pursuant to a merger. The surviving or consolidated association may
administer the covenants, conditions and restrictions established by this Declaration within the
La Costa Oaks Community, together with the covenants and restrictions established upon any
other property as one plan.
12.7 De-Annexation. Declarant may delete all or any portion of the Covered Property
from the coverage of this Declaration or any Supplementary Declaration, provided Declarant
and/or a Merchant Builder are the sole Owner(s) of all of the real property to be deleted and,
with respect to the Phase in which such Covered Property is located, no Lot has been conveyed
to a member of the homebuying public, no Community Association Property has been conveyed
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to the Community Association and no Community Assessments have commenced; provided,
however, that the consent of any Merchant Builder which owns any portion of the real property
affected by such deletion and the consent of the City shall be required. Such deletion shall be
effective upon the recordation of a "Notice of Deletion of Territory," or other instrument signed
by Declarant and consented to by any applicable Merchant Builder. Prior to annexation,
Declarant may also, upon recordation of a Supplementary Declaration, delete any portion of the
Additional Property by so designating such portion of land to be excluded from the Additional
Property in a Supplementary Declaration.
ARTICLE 13 •
RIGHTS OF LENDERS 2
g
The various lenders at the La Costa Oaks Community may also require special rights. .
This Article contains provisions for the benefit of many of the lenders. ^
0
13.1 Payments of Taxes or Premiums by First Mortgagees. First Mortgagees may, 3
jointly or severally, pay taxes or other charges which are in default and which may or have
become a charge against the Community Association Property, unless the taxes or charges are
separately assessed against the Owners, in which case, the rights of First Mortgagees shall be
governed by the provisions of their Mortgages. First Mortgagees may, jointly or severally, also
pay overdue premiums on casualty insurance policies, or secure a new casualty insurance
coverage on the lapse of a policy for the Community Association Property from the Owner; First
Mortgagees making such payments shall be owed immediate reimbursement from the
Community Association. Entitlement to reimbursement shall be reflected in an agreement in
favor of any First Mortgagee who requests the same to be executed by the Community
Association.
13.2 Priority of Lien of Mortgagee. No breach of the covenants, conditions or
restrictions in the Declaration shall affect, impair, defeat or render invalid the lien or charge of
any First Mortgage made in good faith and for value encumbering any Lot, but all of the
covenants, conditions and restrictions shall be binding upon and effective against any Owner
whose title to a Lot is derived through foreclosure or trustee's sale, or otherwise.
13.3 Curing Defaults. A First Mortgagee who acquires title by judicial foreclosure,
deed in lieu of foreclosure or trustee's sale shall not be obligated to cure any breach of the
provisions of this Declaration which is non-curable or of a type which is not practical or feasible
to cure. The determination of the Community Board made in good faith as to whether a breach
is non-curable or not feasible to cure shall be:final and binding on Mortgagees.
13.4 Approval of First Mortgagees. Except as provided by statute in case of
condemnation or substantial loss to the Lots or Community Association Property, unless the
Mortgagees of First Mortgages encumbering sixty-seven percent (67%) or more of the Lots
which are subject to a Mortgage or Owners representing sixty-seven percent (67%) of the Voting
Power of the Community Association (excluding the vote of Declarant) have given their prior
written approval, the Community Association shall not:
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13.4.1 Partition. By act or omission, seek to abandon, partition, subdivide,
encumber, sell or transfer the Community Association Property. The granting of easements or
leases or use agreements for public utilities or for other public purposes shall not be deemed a
transfer within the meaning of this Subsection;
13.4.2 Allocation of Charges. Change the method of determining the obligations,
assessments, dues or other charges which may be levied against an Owner;
13.4.3 Maintenance. By act or omission, change, waive or abandon any scheme
of regulations, or enforcement thereof, pertaining to. the architectural design or exterior
appearance of residences, the exterior maintenance of Residences, the maintenance of
Community Association Property and Common Maintenance Areas, walls or common fences 2
and driveways, or the upkeep of lawns and plantings in the La Costa Oaks Community; g
13.4.4 Insurance. Fail to maintain fire and extended coverage insurance on any *>
Community Association Property upon which Buildings have been constructed on a current U
replacement cost basis in an amount not less than one hundred percent (100%) of the insurable
value, based on current replacement cost; or
13.4.5 Hazard Insurance. Use hazard insurance proceeds for losses to any
portion of the Community Association Property for other than the repair, replacement or
reconstruction of the Community Association Property.
13.5 Restoration of Community Association Property. Any restoration or repair of the
Community Association Property after partial condemnation or damage due to an insurable
event, shall be performed substantially in accordance with the Declaration and original plans and
specifications unless other action is approved by holders of First Mortgages on Residential Lots
which have at least a majority of the Voting Power of the Community Association.
13.6 Professional Management. When professional management has been previously
required by a First Mortgage holder, a decision to establish self-management by the Community
Association shall require the consent of at least sixty-seven percent (67%) of the Voting Power
of Members of the Community Association and the approval of holders of First Mortgages on
Residential Lots, the Owners of which have at least fifty-one percent (51%) of the votes of
Residential Lots encumbered by Mortgages.
13.7 Notice to Mortgagees. Upon written request to the Community Association
identifying the name and address of the holder and the Residential Lot number or address, any
First Mortgage holder will be entitled to timely written notice of:
13.7.1 Any condemnation loss or any casualty loss which affects a material
portion of the project or any Residential Lot on which there is a First Mortgage held by the
Mortgage holder.
13.7.2 Any delinquency in the payment of assessments or charges owed by an
Owner subject to a First Mortgage held by the Mortgage holder which remains uncured for a
period of sixty (60) days;
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13.7.3 Any lapse, cancellation or material modification of any insurance policy
or fidelity bond maintained by the Community Association; and
13.7.4 Any proposed action which would require the consent of a specified
percentage of Mortgage holders.
13.8 Documents to be Available. The Community Association shall make available to
Owners and Mortgagees, and holders, insurers or guarantors of any First Mortgage, current
copies of the Declaration, the Community Bylaws, other rules concerning the project and the
books, records and financial statements of the Community Association. "Available" means
available for inspection, upon request, during normal business hours or under other reasonable
circumstances. The holders of First Mortgages encumbering fifty-one percent (51%) or more of ")
the Lots subject to a Mortgage shall, upon written request, be entitled to have an audited c
statement for the immediately preceding fiscal year prepared at their expense if one is not ~
otherwise available. Any financial statement so requested shall be furnished within a reasonable 4
time following the request. Q
513.9 Conflicts. In the event of any conflict between any of the provisions of this
Article and any of the other provisions of the Declaration, the provisions of this Article shall
control.
ARTICLE 14
AMENDMENTS
iI This Declaration establishes the covenants, conditions and restrictions for the La Costa
I Oaks Community. It may be possible, in the future, that the Community Declaration will need to
1 be amended. This Article sets forth the procedures that must be followed, and the consents that
must be obtained in order to amend this Declaration.
14.1 Amendment. Except as may otherwise be stated in the Declaration, during the
1 period of time prior to conversion of the Class B membership in the Community Association to
Class A membership, this Declaration may be amended at any time and from time to time by the
vote or written consent of sixty-seven percent (67%) of the voting, power of each class of
I Members of the Community Association. Any amendment shall become effective upon
1 recording with the Office of the County Recorder of the County. After conversion of the Class B
membership in the Community Association to Class A membership, the Declaration may be
amended at any time and from time to time by the vote or written consent of (a) sixty-seven
percent (67%) of the total Voting Power of the Community Association, and (b) at least sixty-
seven percent (67%) of the Voting Power of Members of the Community Association other than
Declarant. Anything herein stated to the contrary notwithstanding, .no material amendment may
be made to this Declaration without the prior written consent of Eligible Holders encumbering
fifty-one percent (51%) or more of the Lots within the Covered Property which are subject to a
Mortgage. "Material amendment" shall mean, for purposes of this Section, any amendments to
provisions of this Declaration governing any of the following subjects:
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(a) The fundamental purpose for which the La Costa Oaks Community
was created (such as a change from residential use to a different use);
(b) Assessments, assessment liens or the priority of assessment liens;
(c) Reserves for maintenance, repair and replacement of the
Community Association Property or Common Maintenance Area;
(d) Responsibilities for maintenance and repairs;
(e) Insurance or fidelity bonds;
9(f) Restoration or repair of the after a hazard damage or partial £
condemnation; 0
4(g) Rights to use the Community Association Property or Common. n
Maintenance Area; -
D
(h) Expansion or contraction of the Covered Property or the addition,
annexation or withdrawal of property to or from the Covered Property;
(i) Voting rights;
(j) Convertibility of Residential Lots into Community Association
Property or of Community Association Property into Residential Lots;
(k) Redefinition of boundaries of any Community Association
Property;
(1) The interests in the Community Association Property or Common
Maintenance Area;
transfer his or her Lot;
(m) Leasing of Residential Lots;
(n) Imposition of any restrictions on the right of an Owner to sell or
(o) Any action to terminate the legal status of the Community
Association after substantial destruction or condemnation;
(p) The requirement of retention of professional management of the
Community Association;
(q) Any provision which is expressly for the benefit of Eligible
Holders or insurers or guarantors of Eligible Holders.
An addition or amendment to this Declaration shall not be considered material if it is for
the purposes of correcting technical errors or for clarification only. Any Eligible Holder of a
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First Mortgage who received a written request to approve additions or amendments by certified
or registered mail, return receipt requested, who does not respond within thirty (30) days, shall
be deemed to have approved such addition or amendment. Notwithstanding the foregoing, the
percentage of a quorum or the voting power of the Community Association or of Members other
than the Declarant necessary to amend a special clause or provision of this Declaration shall not
be less than the prescribed percentage of affirmative votes required for action to be taken under
this clause or provision. An amendment or modification shall be effective when executed by the
President or Vice President and Secretary or Assistant Secretary of the Community Association
who shall certify that the amendment or modification has been approved as hereinabove
provided, and shall record the amendment in the Official Records of San Diego County,
California. For the purpose of recording such instrument, each Owner, with the exception of the
Secretary, U.S. Department of Veteran Affairs, an officer of the United States of America,
hereby grants to the President or Vice President and Secretary or Assistant Secretary of the
Community Association an irrevocable power of attorney to act for and on behalf of each and
every Owner in certifying, executing and recording said instrument. Notwithstanding anything
to the contrary contained herein, in no event may any of Declarant's rights or privileges under
the Community Governing Documents be terminated, altered or amended without Declarant's
prior written consent.
14.2 Other Approvals Required for Amendments. Notwithstanding anything to the
contrary contained in this Declaration, Sections 1.15,1.53, 3.2.4, 3.3.3, 4.1.9,4.2.10, 4.2.11, 8.5,
9.2,15.4,16.3, and 16.4 of this Declaration shall not be amended without the vote or approval by
written ballot of at least (a) ninety percent (90%) of the Voting Power of the Members of the
Community Association other than Declarant, and (b) at least ninety percent (90%) of the
Eligible Holders. Such vote shall be an Owner Participation Issue under the Community Bylaws.
14.3 Conflict with Article 13 or Other Provisions of this Declaration. To the extent
any provisions of this Article conflict with the provisions of Article 14 or any other provision of
this Declaration, except those contained in Section 14.2, the provisions of Article 14 or the other
provisions shall control.
14.4 Approval by City. Notwithstanding anything to the contrary set forth in this
Declaration, including without limitation, the amendment provisions set forth in this Article 14,
the consent of the City shall be required for any amendment to Sections 1.10, 2.3.6, 2.3.7, 2.3.8,
2.6.7, 7.8, 7.22, 7.24, 7.24.1, 7.25, 7.28, 7.29, 7.30, 8.2, 8.3, 8.4, 8.8.2, 8.10, 14.4, 15.5, 15.5.1,
15.5.2, 15.5.3, 15.6, 15.6.1, 15.6.2, 15.6.3, 15.6.4, 15.7, of this Declaration or any other
provision of this Declaration which gives to the City any approval rights or enforcement rights
under this Declaration. Any approval by the City hereunder shall be submitted to the Planning
Director and/or City Engineer whose decision shall be binding on the City. The City shall
approve or disapprove any proposed amendment within thirty (30) days of submittal of the
amendment to the City Manager. Any amendment shall be delivered to the City in the same
manner as provided in Section 13.7 of this Declaration for Mortgagees, to the City's then current
office.
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14.5 Business and Professions Code Section 11018.7. All amendments or revocations
of this Declaration shall comply with the provisions of California Business and Professions
Code, Section 11018.7 or any successor statutes or laws, to the extent said Section is applicable.
14.6 Reliance on Amendments. Any amendments made in accordance with the terms
of this Declaration shall be presumed valid by anyone relying on them in good faith.
ARTICLE 15
TERM AND ENFORCEMENT
This Article describes the procedures that apply in enforcing this Declaration and *
specifies the types of dispute resolution procedures that will be followed to resolve such disputes. ^
6
15.1 Duration. The provisions of this Declaration, including the covenants, conditions 4
and restrictions contained herein shall run with and bind the Covered Property and shall continue n
to be effective for a period of ninety-nine (99) years from the date of recordation. Thereafter, the ¥
Declaration shall be automatically extended for successive periods often (10) years unless the w
Owners of two-thirds (2/3) of the Residential Lots subject to the Declaration have executed and
recorded at any time within six (6) months prior to the end of the, ten (10) year period, in the
manner required for a conveyance of real property, a written instrument in which it is agreed that
the restrictions shall terminate at the end of the ten (10) year period.
15.2 Enforcement and Nonwaiver.
15.2.1 Rights of Enforcement of Community Governing Documents. The
Community Association or any Owner shall have a right of action against any Owner, and any
Owner shall have a right of action against the Community Association, to enforce by
proceedings at law or in equity, all restrictions, conditions, covenants and reservations, now or
hereafter imposed by the provisions of the Community Governing Documents or any amendment
thereto, including the right to prevent the violation of such restrictions, conditions, covenants, or
reservations and the right to recover damages or other dues for such violation except that Owners
shall not have any right of enforcement concerning liens for Community Assessments or Project
Assessments, as the case may be. The Community Association shall have the exclusive right to
the enforcement of provisions relating to architectural control and the Community Handbook,
unless the Community Association refuses or is unable to effectuate such enforcement, in which
case any Owner who otherwise has standing shall have the right to undertake such enforcement.
Failure of the Community Association, Declarant or any Owner to enforce any covenants or
restrictions herein contained shall in no event be deemed a waiver of the right to do so thereafter.
The City shall have the same right to enforce the provisions of this Declaration as an Owner in
the Covered Property.
15.2.2 Procedure for Enforcement. Notwithstanding anything to the contrary set
forth in Section 15.2.1, in enforcing any action under the Community Governing Documents,
unless the applicable time limitation for commencing an action would run within one hundred
twenty (120) days prior to the filing of a civil action by either the Community Association or an
Member solely for declaratory reliefer injunction relief in connection with a claim for monetary
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damages, other than assessments of the Community Association, not in excess of Five Thousand
Dollars ($5,000.00), related to the enforcement of the Community Governing Documents, the
parties shall endeavor as provided in California Civil Code Section 1354 or any successor statute
or law, to submit their dispute to a form of alternative dispute resolution such as mediation or
arbitration. The Community Board shall annually provide to the Members a summary of the
provisions of California Civil Code Section 1354 or any successor statute or law, which shall
include the language required and shall be delivered in the manner provided in Civil Code
Section 1365. The exception for disputes related to Community Association assessments
referred above shall not apply to disputes between a Member and the Community Association
regarding assessments imposed by the Community Association, if the Member chooses to pay in
full the Community Association all of the assessments specified in California Civil Code
Section 1366.3 or any successor statute or law, states by written notice that the amount is paid 2
under protest, and delivers such written notice in accordance with the provisions of California (3
Civil Code Section 1366.3 or any successor statute or law. Upon the delivery of such notice, the A
Community Association shall inform the Member that such Member may resolve the dispute *
through alternative dispute resolution as set forth in California Civil Code Section 1354 and any *
other procedures to resolve the dispute that may be available through the Community 9
Association. As provided in Civil Code Section 1366.3, the right of any Owner to utilize
alternative dispute resolution under such Section may not be exercised more than two (2) times
in any single calendar year and not more than three (3) times within any five (5) calendar years.
15.3 NOTICE OF ACTIONS AGAINST DECLARANT. To the extent applicable, the
Community Association shall comply with the provisions of Civil Code Section 1368.4, Civil
Code Sections 910 through 938, and any successor statutes or laws, subject to the provisions of
Section 15.4.
15.4 ALTERNATIVE DISPUTE RESOLUTION. The purpose of this Section 15.4 is
to provide an expedited means of resolving any claims, disputes and disagreements which may
arise between (a) an Owner and/or the Community Association and (b) Declarant concerning the
Covered Property that are not resolved pursuant to any applicable statutory dispute resolution
procedures (individually referenced to herein as "Dispute" and collectively as "Disputes"). A
Supplementary Declaration may be recorded by a Merchant Builder setting forth any alternative
dispute resolution procedures relating to disputes or claims between an Owner and a Merchant
Builder, which do not involve the Community Association and/or the Declarant.
15.4.1 Mediation.
(a) Disputes Subject to Mediation. Except for construction defect
claims which are to be resolved through the non-adversarial statutory provisions set forth in
Sections 910 through 938 of the California Civil Code, any Disputes arising out of or relating to
the Covered Property may not be commenced until the matter has been submitted to Judicial
Arbitration and Mediation Services ("JAMS"), or its successor, for mediation.
15.4.2 Arbitration.
(a) Agreement to Arbitrate. If a dispute is not resolved through
mediation or the statutory non-adversarial procedure, the Declarant or any director, officer,
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partner, member, employee or agent of Declarant and either the Community Association or any
Owner shall resolve any and all Disputes exclusively through binding arbitration in the County.
This arbitration provision shall apply to Disputes of any kind or nature regardless of when the
Dispute first arose or the nature of the relief sought. Alternatively, either the Community
Association, any Owner or Declarant may elect to resolve such Disputes through a small claims
court proceeding, in. which case the party filing the small claims action will have waived the
right to any relief in excess of the jurisdiction of the small claims court.
(b) Waiver of Trial by Judge or Jury. By agreeing to resolve all
Disputes through binding arbitration, the Community Association, each Owner and the
Community Association and Declarant each give up the right to have their respective claims and
defenses decided by a judge or a jury. 2
fi(c) Rules Applicable to All Cases. The arbitration will be conducted ®
by JAMS in accordance with the JAMS rules ("JAMS Rules") then applicable to the claims 4
presented, as supplemented by this Declaration. The following supplemental rules shall apply to 'j
all arbitration proceedings and shall govern in the event of a conflict between the rules set forth
below and the JAMS Rules.
(d) Qualifications of Arbitrators. The arbitrator shall be neutral and
impartial and either a retired judge or a member or former member of the California State Bar
with at least fifteen (15) years experience as a practicing lawyer and at least ten (10) years
experience with construction related disputes.
(e) Appointment of Arbitrator. The arbitrator to preside over the
Dispute shall be selected in accordance with the JAMS Rules, but no later than sixty (60) days
after a notice of claim is filed.
(f) Expenses. All fees charged by JAMS and the arbitrator shall be
advanced by Declarant. If Declarant is the prevailing party in the arbitration, the arbitrator may,
to the extent permitted by law and the JAMS Rules, direct the Owner or the Community
Association, as applicable to reimburse the Declarant for up to fifty percent (50%) of the JAMS
fee and arbitrator's fee advanced by Declarant within sixty (60) days after the final arbitration
award.
(g) Preliminary Procedures. If state or federal law requires the
Declarant, the Community Association or Owner to take steps or procedures before commencing
an action in court, then the Declarant, the Community Association or Owner must take such
steps or follow such procedures, as the case may be, before commencing the arbitration. For
example, any claims or Disputes pursuant to California Civil Code Section 895 et. seq., as
hereafter amended shall be subject to the non-adversarial procedures set forth in California Civil
Code Section 910 through 938, prior to the initiation of any arbitration or small claims court
proceeding against Declarant. In addition, nothing contained herein shall be deemed a waiver or
limitation of the provisions of California Civil Code Sections 1368.4,1375,1375.05 or 1375.1.
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(h) Participation by Other Parties. Declarant, the Community
Association or Owner to the extent either such party is defending a claim in the arbitration, may,
if it chooses, have all necessary and appropriate parties included as parties to the arbitration.
(i) Rules of Law. The arbitrator must follow California substantive
law (including statutes of limitations) but may receive hearsay evidence. The arbitrator shall be
authorized to provide all recognized remedies available at law or equity for any cause of action.
(j) Attorneys Fees and Costs. Each party shall bear its own attorneys
fees and costs (including expert witness costs) in the arbitration.
15.4.3 Additional Rules Applicable To Certain Cases. In any arbitration in which -
a claim of Declarant, the Community Association or Owner exceeds 5250,000 in value, the *
following additional rules will supplement the JAMS Rules and govern in the event of a conflict Q
between the following rules and the rules set forth above, the JAMS Rules, or both. ^
\
. (a) Qualifications of Arbitrator. In addition to the requirements of '
Section 15.4.2(d) above, the arbitrator shall be a retired judge of the California Superior Court, a I
California Court of Appeal, or the California Supreme Court.
(b) Transcripts. All hearings in which evidence is received must be
recorded by a customary method so that a transcript of all testimony can be prepared. The cost
of the recording shall be paid by Declarant as further provided in Section 15.4.4(e) below and the
cost of the transcription shall be paid by the appealing party.
(c) Rules of Law. The arbitrator must follow the California Evidence
Code,
(d) Written Decision. Within thirty (30) days after the hearing is
closed, the arbitrator must issue a written decision. If either Declarant, the Community
Association or Owner requests it, the arbitrator must issue a reasoned award.
(e) Petition to Confirm Award. Neither Declarant, the Community
Association or Owner may petition a court to enter judgment on the arbitration award until the
other party's time to serve a notice of appeal, as set forth below, has expired.
15.4.4 Procedure for Appeal of Certain Cases. In any arbitration in which a
claim of Declarant, the Community Association or Owner exceeds $250,000 in value, each party
shall have a limited right to appeal the arbitration award as set forth below.
(a) Right of Appeal. There shall be no right to appeal unless the oral
evidence received by the arbitrator was preserved in a manner that it can be converted to an
accurate and reliable written transcript.
(b) Appellate Arbitration. An appeal shall be decided by one
(1) neutral appeal arbitrator appointed by JAMS under the rules that govern appointment of
arbitrators. The appeal arbitrator must be a retired judge.
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(c) Issues on Appeal. The only issues that may be considered on
appeal are: (1) the award of money was excessive; (2) the award of money was insufficient;
(3) the arbitrator awarded non-monetary relief that was inappropriate; (4) a party who received
non-monetary relief should have received other or additional relief. The appeal arbitrator may
affirm the arbitration award or make any alternative award he or she finds to be just, but must not
reject the arbitrator's decisions (a) that a particular party is entitled to relief of some nature or
amount or (b) that a particular party is responsible to provide relief of some nature or amount.
(d) Notice of Appeal. To appeal an arbitration award, a party must
serve written notice of the appeal on JAMS and all parties to the arbitration within thirty (30)
days after mailing of the arbitrator's award to the parties. The written notice of appeal must
include a general description of the grounds for appeal and the relief requested. A party who has 0
received a timely notice of appeal may thereafter file and serve its own notice of appeal within - c
sixty (60) days after mailing of the arbitration award to the parties. j.
(e) Expenses and Costs on Appeal. The appealing party must advance \
all fees for the appeal and provide JAMS with a written transcript of the oral testimony, copies of T
all documentary evidence and all other tangible evidence received by the arbitrator. If more than
one party appeals, the appealing parties must share equally the JAMS fees and the cost of
preparing and copying the transcript and all other evidence received by the arbitrator.. The
appeal arbitrator may award costs of the nature provided in the Federal Rules of Appellate
Procedure provided that the maximum, which may be awarded to Declarant as the prevailing
party, is fifty percent (50%) of the total costs of the arbitration appeal.
(f) Appellate Briefs. The appeal arbitrator may receive written briefs
from the parties and hear oral argument, but must not receive new evidence. The appeal
arbitrator must make his or her decision based only on the evidence that was presented to the
arbitrator, except that the appeal arbitrator may visit any site involved in the Dispute.
(g) Decision on Appeal. The decision of the appeal arbitrators shall be
the final award in the case and shall be treated as the arbitration award for all purposes.
(h) Federal Arbitration Act. Declarant, the Community Association
and each Owner acknowledge that because many of the materials and products incorporated into
the home are manufactured in other states, the conveyance of the Covered Property evidences a
transaction involving interstate commerce and the Federal Arbitration Act (9 U.S.C. §1, et. seq.)
now in effect and as it may be hereafter amended will govern the interpretation and enforcement
of the arbitration provisions of this Declaration.
15.4.5 AGREEMENT TO ARBITRATE AND WAIVER OF JURY TRIAL.
(a) ARBITRATION OF DISPUTES. DECLARANT, EACH
OWNER BY ACCEPTANCE OF A DEED, AND THE COMMUNITY ASSOCIATION
AGREE TO HAVE ANY DISPUTE DECIDED BY NEUTRAL ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA
ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA ARBITRATION ACT IS
CONSISTENT WITH THE FEDERAL ARBITRATION ACT, AND EACH OWNER,
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DECLARANT AND THE COMMUNITY ASSOCIATION ARE GIVING UP ANY RIGHTS
DECLARANT, EACH OWNER AND THE COMMUNITY ASSOCIATION MIGHT
POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.
DECLARANT, EACH OWNER, AND THE COMMUNITY ASSOCIATION ARE GIVING
UP THEIR RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS
THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS SECTION 16.4. IF
DECLARANT, ANY OWNER OR COMMUNITY ASSOCIATION REFUSED TO SUBMIT
TO ARBITRATION AFTER AGREEING TO THIS PROVISION, SUCH PARTY MAY BE
COMPELLED TO ARBITRATE UNDER THE FEDERAL ARBITRATION ACT AND THE
CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA
ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT.2
(b) WAIVER OF JURY TRIAL. IN THE EVENT THE g
FOREGOING ARBITRATION PROVISION IS HELD NOT TO APPLY OR IS HELD >
INVALID, VOID OR UNENFORCEABLE IN ITS ENTIRETY FOR ANY REASON, ALL J
DISPUTES SHALL BE TRIED BEFORE A JUDGE IN A COURT OF COMPETENT I
JURISDICTION WITHOUT A JURY. THE JUDGE IN SUCH COURT OF COMPETENT 3
JURISDICTION SHALL HAVE THE POWER TO GRANT ALL LEGAL AND EQUITABLE
REMEDIES AND AWARD COMPENSATORY DAMAGES. DECLARANT, BY
EXECUTING THIS DECLARATION AND EACH OWNER, AND THE COMMUNITY
ASSOCIATION BY ACCEPTING A DEED TO ANY PORTION OF THE COVERED
PROPERTY, HEREBY WAIVE AND COVENANT NOT TO ASSERT THEIR
CONSTITUTIONAL RIGHT TO TRIAL BY JURY OF ANY DISPUTES, INCLUDING, BUT
NOT LIMITED TO, DISPUTES RELATING TO CONSTRUCTION DEFECTS,
MISREPRESENTATION OR DECLARANT'S FAILURE TO DISCLOSE MATERIAL
FACTS. THIS MUTUAL WAIVER OF JURY TRIAL SHALL BE BINDING UPON THE
RESPECTIVE SUCCESSORS AND ASSIGNS OF SUCH PARTIES AND UPON ALL
PERSONS AND ENTITIES ASSERTING RIGHTS OR CLAIMS OR OTHERWISE ACTING
ON BEHALF OF DECLARANT, ANY OWNER AND THE COMMUNITY ASSOCIATION
OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
15.4.6 Final and Binding Award. The decision of the arbitrator or, if an appeal is
heard, the decision of the appeal arbitrators, shall be final and binding. A petition to confirm,
vacate, modify or correct an award may be filed in any court of competent jurisdiction in the
county in which the Covered Property is located, but the award may be vacated, modified or
corrected only as permitted by the Federal Arbitration Act.
15.4.7 Severability. In addition to and without limiting the effect of any general
severability provisions of this Declaration, if the arbitrator or any court determines that any
provision of this Section 15.4 is unenforceable for any reason, that provision shall be severed,
and proceedings agreed to in this Declaration shall be conducted under the remaining
enforceable terms of this Section 15.4.
15.4.8 Application of Award. Any proceeds awarded to the Community
Association arising from any Dispute by settlement, award or otherwise shall be applied in
accordance with the provisions of Section 4.1.9 of this Declaration.
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15.4.9 General Enforcement by the City.
15.4.10 Right of City to Enforce Declaration. The City shall have the
right, but not the obligation, to enforce the restrictions set forth in this Declaration in favor of, or
in which the City has an interest.
15.4.11 Failure of Community Association to Maintain Community
Association Property and Common Maintenance Areas. If the Community Association fails to .
maintain the Community Association Property or Common Maintenance Areas as provided in
Article 8, 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 Community
Association, with a copy thereof to the Owners in the La Costa Oaks Community, setting forth 0
with particularity the maintenance which the City finds to be required and requesting the same be *
carried out by the Community Association within a period of thirty (30) days from the giving of ~
such notice. In the event that the Community Association fails to carry out such maintenance of 4
the Community Association Property or Common Maintenance Areas within the period specified ]
by the City's notice, the City shall be entitled to cause such work to be completed and shall be A
entitled to reimbursement with respect thereto from the Owners as provided herein.
15.4.12 Special Assessments Levied by the City. In the event the City has
performed the necessary maintenance to either Community Association Property or Common
Maintenance Areas, the City shall submit a written invoice to the Community Association for all
costs incurred by the City to perform such maintenance of the Community Association Lots
and/or Community Association's easements. The City shall provide a copy of such invoice to
each Owner in the La Costa Oaks Community, together with a statement that if the Community
Association fails to pay such invoice in full within the time specified, the City will pursue
collection against the Owners in the La Costa Oaks Community pursuant to the provisions of this
Section. Said invoice shall be due and payable by the Community Association within twenty
(20) days of receipt by the Community Association. If the Community Association shall fail to
pay such invoice in full within the period specified, payment shall be deemed delinquent and
shall be subject to a late charge in an amount equal to six percent (6%) of the amount of the
invoice. Thereafter the City may pursue collection from the Community Association by means
of any remedies available at law or in equity. Without limiting the generality of the foregoing, in
addition to all other rights and remedies available to the City, the City may levy a Special
Assessment against the Owners of each Residential Lot in the La Costa Oaks Community for an
equal pro rata share of the invoice, plus the late charge. Such Special Assessment shall
constitute a charge on the land and shall be a continuing lien upon each Residential Lot against
which the Special Assessment is levied. Each Owner in the La Costa Oaks Community hereby
vests the City with the right and power to levy such Special Assessment, to impose a lien upon
their respective Residential Lot and to bring all legal actions and/or to pursue lien foreclosure
procedures against any Owner and his or her respective Lot for purposes of collecting such
Special Assessment in accordance with the procedures set forth in Article 5 of this Declaration.
15.5 City Required Disclosures. The following information is set forth in this
Declaration as required by the City as a condition to City approval of the Tentative Map. Each
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Owner acknowledges that this is not a comprehensive and exhaustive list of all material
information about the La Costa Oaks Community and that this information is subject to change.
15.5.1 Use of Reclaimed Water. As required by the City, the Community
Association shall use reclaimed water for the irrigation of Community Association Property and
Common Maintenance Area landscaping if reclaimed water becomes reasonably available for
that purpose. If reclaimed water does become reasonably available for irrigation of the
Community Association Property or Common Maintenance Area, the Community Association
shall not discontinue use of reclaimed water for that purpose without the approval of the
applicable water district.
15.5.2 Dam Inundation Areas and Other Natural Hazards. Portions of the La
Costa Oaks Community are located in areas where there may be natural hazards, including areas
designated as potential dam inundation areas from the Stanley A. Mahr dam and as a result are
subject to potential flooding due to dam failure which could result in loss of life or property. 4
Each Owner who acquires a Residential Lot subject to a Public Report should review carefully 'j
the Natural Hazards Disclosure Report provided to such Owner by the Merchant Builder, and
each subsequent Owner should review carefully any disclosures about natural hazards provided
by the Seller of the Residential Lot. The City has required Declarant to attach an exhibit
showing areas which could potentially be impacted by further dam inundation. To comply with
this requirement, Declarant has attached Exhibit "H" which describes the areas identified by
Declarant's engineer, Hunsaker and Associates as possible dam inundation areas. Declarant
makes no representation regarding the accuracy of such exhibit or whether the exhibit includes
all of the areas of possible dam inundation.
15.5.3 Commercial and/or Retail Site. Each Owner acknowledges a
commercial/retail center may be .developed at the intersection of La Costa and Rancho Santa Fe
Road. Declarant makes no representation or warranty when or if a commercial and/or retail
center will be constructed.
15.5.4 Restricted Facilities Parking. The recreational facilities that are to be
included as part of the Community Association Property are not currently being designed with
on-site parking. Members who use the recreational facilities will be required to park on the
streets in the area of the recreational facilities. Residences in the vicinity of the recreational
facilities may be impacted by this parking arrangement.
15.6 Copy of Recorded Declaration to City. Upon recordation of this Declaration with
the Office of the County Recorder of San Diego County, California, Declarant shall forward a
copy of the recorded Declaration to Planning Director, City of Carlsbad, 1635 Faraday Avenue,
Carlsbad, California 92008-7314.
ARTICLE 16
GENERAL PROVISIONS
16.1 Headings. The headings used in this Declaration are for convenience only and are
not to be used to interpret the meaning of any of the provisions of this Declaration.
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16.2 Severability. The provisions of this Declaration shall be deemed independent and
severable, and the invalidity or partial invalidity or unenforceability of any provision or
provisions of it shall not invalidate any other provisions.
16.3 Cumulative Remedies. Each remedy provided for in this Declaration shall be
cumulative and not exclusive. Failure to exercise any remedy provided for in this Declaration
shall not, under any circumstances, be construed as a waiver.
16.4 Violations as Nuisance. Every act or omission in violation of the provisions of
this Declaration shall constitute a nuisance and, in addition to all other remedies herein set forth,
may be abated or enjoined by any Owner, any Member of the Community Board, the manager,
or the Community Association. 0
fi16.5 No Racial Restriction. No Owner shall execute or cause to be recorded any °
instrument which imposes a restriction upon the sale, leasing or occupancy of his or her 4
Residential Lot on the basis of race, sex, color or creed. 'j
£
16.6 Access to Books. Declarant may, at any reasonable time and upon reasonable ^
notice to the Community Board or manager, at his or her own expense, cause an audit or
inspection to be made of the books and financial records of the Community Association.
16.7 Liberal Construction. The provisions of this Declaration shall be liberally
construed to effectuate its purpose. Failure to enforce any provision hereof shall not constitute a
waiver of the right to enforce said provision thereafter.
16.8 Notification of Sale of Residential Lot. Concurrently with the consummation of
the sale of any Residential Lot under circumstances whereby the transferee becomes an Owner
thereof, or within five (5) business days thereafter, the transferee shall notify the Community
Board in writing of such sale. Such notification shall set forth the name of the transferee and his
or her mortgagee and transferor, the common ^address of the Residential Lot purchased by the
transferee, the transferee's and the mortgagee's mailing address, and the date of sale. Prior to the
receipt of such notification, any and all communications required or permitted to be given by the
Community Association, the Community Board or the manager shall be deemed to be duly made
and given to the transferee if duly and timely made and given to said transferee's transferor.
16.9 Notices. Mailing addresses may be changed at any time upon written notification
to the Community Board. Unless otherwise permitted hereunder, notices shall be in writing and
shall be given by certified mail, return receipt requested, overnight courier or personal delivery.
Notices shall be deemed received in three (3) days if mailed by certified mail, return receipt
requested, one (1) business day after deposit with an overnight courier or upon receipt if
delivered in person. All notices to the Community Association shall be delivered to the current
addresses of the Community Association. All notices to an Owner shall be delivered to a
Residential Lot unless an Owner notifies the Community Association, in writing of a change of
address.
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Order: 0698 Comment:
16.10 Number; Gender. The singular shall include the plural and the plural the singular
unless the context requires the contrary, and the masculine, feminine and neuter shall each
include the masculine, feminine or neuter, as the context requires.
16.11 Exhibits. All exhibits referred to are attached to this Declaration and incorporated
by reference.
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La Costa Oaks
CC&RS
27817-00008/1695243.15 [W]
Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 96 of 118
rtrrlai-! ntZQA fnmmanf-' • • • —- —Order: OS98 Comment:
16.12 Binding Effect. This Declaration shall inure to the benefit of and be binding on
the successors and assigns of the Declarant, and the heirs, personal representatives, grantees,
tenants, successors and assigns of the Owners.
IN WITNESS WHEREOF, the undersigned, as Declarant, has executed this Declaration
as of the date first set forth above.
REAL ESTATE COLLATERAL MANAGEMENT
COMPANY, a Delaware corporation 2
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La Costa Oaks
CC&RS
r?817-00008/16952«.H [W]
Description: San Diego,CA Document-Year.DocJU 2003.755993 Page: 97 of 118
Ordars 0638 Comment:
STATE OF
COUNTY OF
\_, personally appeared
personalfy known to me (or proved to me
on the basis of sMisfactory evidence) to be the person whose name(s) are/is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
2
WITNESS my hand and official seal. __._ g
41
9
Signature MWM^\L- iWV^U (SEAL)OFFICIAL SEAL
DIANA C MORENO
I NOTARY KSUC, STATt Of 1U.WOW
' MY COMMISSION BXHBttt 10/04AJ9
La Costa Oaks
CCARS
27817-00008/1695243.14 [W]
Description: San Diego,CA Document-rear.DocID 2003.755993 Page: 9'3 of 118
nr-dar- • rt£"<3# r^/-*TTt>»rtM h- •Order: 0559 Comment:
SUBORDINATION AGREEMENT
The undersigned, as assignee and holder of the beneficial interest in that certain Deed of
Trust dated November 5, 1998 and recorded in the Office of the County Recorder of San Diego
i County on November 17, 1998 as Instrument No. 88-592631, as amended hereby declares that
I the lien and charge of the Deed of Trust are and shall be subordinate to the Declaration of
I Covenants, Conditions and Restrictions for La Costa Oaks recorded in the Office of the County
I Recorder of San Diego County to which this Subordination Agreement is attached.
Dated: fap 7/0^3 HFC COMMERCIAL REALTY, INC.,
a Delaware corporation
By:
Name:
Title: //X
0
La Costs Ooks
CC&RS
27SI7-00008/t69524:).]4[W]
Description: San Diego,CA Document-Year.DocIO 2003.755993 Paga: 99 of 113
Order: 0698 Comment!
STATE OFCMJTORMA- )
COUNTY OF
personally appeared
personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature /j/i^t^Cx v — ,(SEAL)
OFFICIAL SEAL
DIANA C MORENO
NOTAflY PUBUC. 8TAT8 OF IU»»«S; MY COMMISSION ixnmi KMHWI
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La Costa Oaks
CC&RS
27817-00008/1695243.14 [W]
Dascription: San Diego,CA Document-year.DocID 2003.755993 Page: 100 of 118
Order: 0693 Comment: -
LIST OF EXHIBITS
Exhibit A Legal Description of Covered Property Initially Subject to this Declaration
Exhibits Additional Property
Exhibit B-l Plat of Additional Property
Exhibit C Habitat Preserve Areas
Exhibit D Habitat Preserve Restrictions
a
Exhibit E Educational Materials fj
4Exhibit F Fire Suppression Zones ^
Exhibit G Invasive Species 2
Exhibit H Dam Inundation Areas
La. COSH Oaks
CC&RS
27817-00008/1695243.15 [W]
Description: San Diego,CA Document-year.DocZD 2003.755993 Page: 101 of 118
Order: 0698 Comment:
EXHIBIT "A"
Covered Property Initially Subject to this Declaration
LOTS 1 THROUGH 172 INCLUSIVE, LOT 179, LOT 180, LOT 182 THROUGH 188
INCLUSIVE, LOTS 190 THROUGH 193 INCLUSIVE, LOT 197 AND LOT 198 OF
CARLSBAD TRACT 99-04-01 - LA COSTA OAKS SOUTH, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP
THEREOF NO. 14379 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY, APRIL 29, 2002.
LOTS 1 THROUGH 97 INCLUSIVE, OF CARLSBAD TRACT 02-03 - LA COSTA OAKS 0
SOUTH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF £
CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 14604 FILED IN THE OFFICE &
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 3, 2003. 4
2
3
La Costa Oaks
CC&RS
27817-00008/1695243.15 [W] EXHIBIT "A"
Description: San Diego,CA Document-year.DocID 2003.7S5993 Page: 102 of 118
Order: 0598 Comment:
EXHIBIT "B"
Additional Property
THAT PORTION OF THE SOUTHEAST QUARTER AND THE NORTHEAST QUARTER
OF SECTION 30, AND THAT PORTION OF THE SOUTHWEST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 29, AND THAT PORTION OF THE SOUTHWEST
QUARTER OF SECTION 29, AND THAT PORTION OF THE NORTHWEST QUARTER OF
SECTION 32, ALL IN TOWNSHIP 12 SOUTH, RANGE 3 WEST, SAN BERNARDINO
MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS: 2
BEGINNING AT THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER OF THE §
SOUTHWEST QUARTER OF SAID SECTION 29, AS SHOWN AND ACCEPTED ON THAT 4
RECORD OF SURVEY NO. 17206, FILED IN THE OFFICE OF SAID COUNTY 2
RECORDER NOVEMBER 29, 2001; THENCE ALONG THE EASTERLY BOUNDARY OF A
SAID RECORD OF SURVEY NO. 17206, NORTH 00°08'32" EAST, 14.93 FEET; THENCE
LEAVING SAID EASTERLY BOUNDARY NORTH 89°53'55" WEST, 260.11 FEET TO A
POINT ON A NON-TANGENT 360.00 FOOT RADIUS CURVE, CONCAVE
SOUTHWESTERLY, A RADIAL TO SAID POINT BEARS NORTH 72°19'28" EAST;
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 37°39'04" A DISTANCE OF 236.57 FEET; THENCE TANGENT
. NORTH 55°19'36" WEST, 175.71 FEET TO A TANGENT 60.00 FOOT RADIUS CURVE,
CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF
SAID CURVE THROUGH A CENTRAL ANGLE OF 24°29'41" A DISTANCE OF 25.65
FEET TO A POINT ON A REVERSING 40.00 FOOT RADIUS CURVE, CONCAVE
SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 24°29'41" A DISTANCE OF 17.10 FEET; THENCE
TANGENT NORTH 55°19'36" WEST, 49.07 FEET TO A TANGENT 25.00 FOOT RADIUS
CURVE, CONCAVE EASTERLY; THENCE NORTHWESTERLY, NORTHERLY AND
NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 89°37'48" A DISTANCE OF 39.11 FEET TO A POINT ON A COMPOUND
65.00 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY; THENCE
NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 15°41'48" A DISTANCE OF 17.81 FEET; THENCE TANGENT NORTH
50°00'00" EAST, 21.00 FEET TO A TANGENT 85.00 FOOT RADIUS CURVE, CONCAVE
NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 15°19'36" A DISTANCE OF 22.74 FEET; THENCE
TANGENT NORTH 34°40'24" EAST, 59.69 FEET TO A TANGENT 85.00 FOOT RADIUS
CURVE, CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE
ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 15°20'24" A DISTANCE OF
22.76 FEET; THENCE TANGENT NORTH 19°20'00" EAST, 21.38 FEET TO A TANGENT
65.00 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY; THENCE
NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 15°20'24" A DISTANCE OF 17.40 FEET; THENCE TANGENT NORTH
U Costa Oak. EXHIBIT "B"
CC&RS
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Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 103 of 118
ririjaT* • C\ K Ofl fnmma-n h •Order: 0698 Cojnment:
34°40'24" EAST, 10.25 FEET TO A TANGENT 1863.00 FOOT RADIUS CURVE,
CONCAVE NORTHWESTERLY: THENCE NORTHEASTERLY ALONG THE ARC OF
SAID CURVE, THROUGH A CENTRAL ANGLE OF 28°51'00" A DISTANCE OF 938.07
FEET TO A POINT ON A REVERSING 165.00 FOOT RADIUS CURVE, CONCAVE
SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 15°53'35"A DISTANCE OF 45.77 FEET TO A POINT
ON A REVERSING 165.00 FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY;
THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 18°55'02" A DISTANCE OF 54.48 FEET TO A POINT ON A
COMPOUND 1878.00 FOOT RADIUS CURVE, CONCAVE WESTERLY; THENCE
NORTHERLY ALONG THE ARC OF SATD CURVE THROUGH A CENTRAL ANGLE OF
05°50'45" A DISTANCE OF 191.61 FEET TO A POINT ON A REVERSING 25.00 FOOT 2
RADIUS CURVE, CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY AND g
EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF .
87°30'05" A DISTANCE OF 38.18 FEET; THENCE TANGENT NORTH 84a27'17" EAST, Jj
149.52 FEET TO A POINT ON THE EASTERLY BOUNDARY OF SAID RECORD OF I
SURVEY NO. 17206; THENCE ALONG THE EASTERLY AND NORTHEASTERLY 5
I BOUNDARY OF SATO RECORD OF SURVEY NO. 17206, NORTH 00°08'32" EAST, 66.61
FEET; THENCE NORTH 89°25'03" WEST, 585.47 FEET; THENCE NORTH 35°25'54"
WEST, 286.43 FEET TO A POINT ON A NON-TANGENT 1000.00 FOOT RADIUS CURVE,
CONCAVE NORTHEASTERLY, A RADIAL TO SAID POINT BEARS SOUTH 31°03'20"
I WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 11°04'23" A DISTANCE OF 193.26 FEET; THENCE TANGENT
NORTH 47°52'17" WEST, 400.09 FEET TO A TANGENT 400.00 FOOT RADIUS CURVE,
CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF
SAID CURVE THROUGH A CENTRAL ANGLE OF 12°57'53" A DISTANCE OF 90.51
FEET TO A POINT ON THE EASTERLY BOUNDARY LINE OF LOT 233 OF MAP
NO. 14379, IN THE CITY OF CARLSBAD, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON APRIL 29, 2002; THENCE LEAVING SAID
NORTHEASTERLY BOUNDARY OF SAID RECORD OF SURVEY NO. 17206, ALONG
- THE EASTERLY BOUNDARY LINE OF SATO MAP NO. 14379 AND NON-TANGENT TO
SAID CURVE. SOUTH 00° 14'35" WEST, 170,13 FEET; THENCE SOUTH 70°30'00" WEST,
85.00 FEET; THENCE SOUTH 59°41'32" WEST, 167.00 FEET; THENCE SOUTH 43°42'32"
WEST, 260.00 FEET; THENCE SOUTH 13°05'33" EAST, 215.17 FEET; THENCE SOUTH
37Q17'02" WEST, 147.00 FEET; THENCE SOUTH 02°00'00" WEST, 187.00 FEET; THENCE
SOUTH 61°03'20" EAST, 153.00 FEET; THENCE SOUTH 01°06'10" EAST, 236.00 FEET;
THENCE SOUTH 73°14'00" WEST, 140.00 FEET; THENCE SOUTH 41°22'40" WEST,
283.50 FEET; THENCE SOUTH 11°25'00" WEST, 125.00 FEET; THENCE SOUTH
27°00'00" EAST, 213.00 FEET; THENCE SOUTH 57°00'00" EAST, 91.89 FEET; THENCE
SOUTH 07°00'00" EAST, 99.87 FEET; THENCE SOUTH 54°00'00' WEST, 242.13 FEET;
THENCE SOUTH 25°00'00" WEST, 139.00 FEET; THENCE SOUTH 47°45'00" WEST,
132.50 FEET; THENCE SOUTH 04°45'00" WEST, 46.00 FEET; THENCE SOUTH 26°00'00"
EAST, 83.00 FEET; THENCE SOUTH 74°10'00" EAST, 46.00 FEET; THENCE NORTH
72°00'00" EAST, 65.00 FEET; THENCE SOUTH 35°47'00" EAST, 135.00 FEET; THENCE
SOUTH 32WOO" WEST, 154.00 FEET; THENCE SOUTH 63°13'00" WEST, 69.00 FEET;
U Costa Oaks EXHIBIT "B"
CC&RS
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Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 104 of 118
Order: 0698 Comment:
THENCE SOUTH 49°33'00" WEST, 195.50 FEET; THENCE SOUTH 80°OOW WEST,
107.50 FEET; THENCE NORTH 85°32'00" WEST, 247.00 FEET; THENCE NORTH
88°43'00" WEST, 110.00 FEET; THENCE NORTH 76°33'30" WEST, 165.00 FEET; THENCE
SOUTH 71°16'00" WEST, 70.50 FEET; THENCE NORTH 85°28'30" WEST, 222.00 FEET;
THENCE SOUTH 69°20'00" WEST, 98.00 FEET; THENCE SOUTH 66°30'00" WEST,
135.00 FEET; THENCE SOUTH 54°30'00" WEST, 181.00 FEET; THENCE SOUTH
30°55'00" WEST, 263.00 FEET; THENCE SOUTH 07°20'00" WEST, 74.00 FEET; THENCE
SOUTH 02°10'24" WEST, 79.23 FEET; THENCE NORTH 89°42'16" EAST, 2210.25 FEET;
THENCE SOUTH 89°53'58" EAST, 593.52 FEET; THENCE SOUTH 15WOO" WEST,
156.80 FEET; THENCE SOUTH 26°00'00" WEST, 65.00 FEET TO A POINT ON THE
NORTHERLY LINE OF THAT DEED RECORDED AUGUST 20, 1981 AS FILE
NO. 81-266030 OF OFFICIAL RECORDS; THENCE LEAVING SATO EASTERLY 2
BOUNDARY LINE OF SAID MAP NO. 14379 AND FOLLOWING THE NORTHERLY AND g
NORTHEASTERLY LINES OF SAID DEED, SOUTH 89°53'58" EAST, 209.12 FEET, TO A A
TANGENT 470.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY; THENCE ^
EASTERLY AND SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A 2
CENTRAL ANGLE OF 36°03'42" 42" A DISTANCE OF 295.82 FEET; THENCE SOUTH 8
53°50'16" EAST, 386.84 FEET; THENCE SOUTH 35°23'44" WEST, 30.75 FEET; THENCE
SOUTH 63°42'16" EAST, 424.16 FEET; THENCE SOUTH 76°40'16" EAST, 288.30 FEET,
TO A POINT ON THE BOUNDARY LINE OF SAID MAP NO. 14379; THENCE ALONG
SAID BOUNDARY LINE, NORTH 48°26'40" EAST, 390.95 FEET; THENCE NORTH
00°19'30" WEST, 541.37 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID
SECTION 29 AS SHOWN ON SAID RECORD OF SURVEY NO. 17206; THENCE ALONG
SAID SOUTHERLY LINE SOUTH 89°27'22" WEST, 892.65 FEET TO THE
POINT OF BEGINNING.
CONTAINING 149.55 ACRES, MORE OR LESS.
La Costa Oaks EXHIBIT "B"
CC&RS
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Description: San Diego, CA Document-Year.DocID 2003.7S5993 Page: 105 of 118
Order: OS98 Comment:
EXHIBIT "B-l"
Plat of Additional Property
[Attached Hereto]
2
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2
LaCostaOaks EXHIBIT "B-l"
CC&RS
27817-00008/1695243.15 [W]
Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 106 of 119
Order: 0698 Comment:
EXHIBIT "B-l"
PLAT OF ADDITIONAL PEOPERTY
3000
onry OF
TOACT HO. 98-04-03
COSTA OAKS
2
6
4
2
8
HUNSAXER
& ASSOCIATES
JAN 0 I I C Q, IMC
PIANNWG Vtf) HutmdOT Slnt
ENONEUNC Sin Dte|O, Cl 9IC1
^ \0261\»loo\g'-OAKS-NCRTH.01IC(| 12751)ta-;4-'2CCa 09: 39
Description: San Diego,CA Document-Year.DocID 2003.7S5993 Page: 107 of 113
Order: 0698 Comment:
EXHIBIT "C"
Habitat Preserve Areas
LOTS 177, 178, 189, 196, 198, 199, 200, 233, 234, 239 And 240 OF CARLSBAD TRACT
MAP NO. 99-04-01, VILLAGES OF LA COSTA - LA COSTA OAKS SOUTH, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
THE MAP THEREOF NO. 14379, FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY ON APRIL 29,2002.
1
6
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2
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LaCosuOaks EXHIBIT "C"
CC&RS
27S!7-OOOOS/!(SW243.!5[W]
Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 108 of 118
Order: 0698 Comment:
EXHIBIT "D"
Habitat Preserve Restrictions
1. All dogs must be leashed.
2. Mountain bikes, off-road vehicles, camping, shooting and hunting are not allowed.
3. Cliff jumping and swimming are strictly prohibited in Box Canyon.
2
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La Costa Oaks EXHIBIT "D"
CC&RS
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Description: San Diego,CA Document-Year.DocID 2003.7S5993 Page: 109 of 118
Order: 0538 Comment: ""
EXHIBIT "E"
Educational Materials
Background
Within your new community is the La Costa Preserve, 1,000 acres of dedicated natural
open space which includes the 200-foot deep Box Canyon and its 40-foot waterfall.
The eastern portion of the Preserve forms a core habitat area including a large contiguous
stretch of coastal sage scrub, chaparral and natural open space. Two hundred additional acres of
off-site habitat links this core area with open space to the south, providing an important A
component to the regional conservation effort to ensure the long-term vitality of key animal ^
species. U
4The Preserve is expected to protect 18 pairs of threatened California Gnatcatchers and 0
ensure the long-term survival of more than 60 other species including the Del Mar manzanita, ^
thread-leaved brodiaea, summer holly, California adolphia, wart-stemmed ceanothus and sticky- '
leaved live-forever. The wildlife identified on the Preserve includes coyote, mule deer, bobcat,
red-tailed hawks, homed lizards, rufous-crowned sparrow, and orange-throated whiptail.
Management Plan
The Center for Natural Lands Management, a Fallbrook-based non-profit foundation,
owns and manages La Costa Preserve, The Center has been responsible for managing natural
open space for more than ten years, currently overseeing more than 50,000 acres within 36
preserves throughout California. The Center has teamed with the Batiquitos Lagoon Foundation
to utilize the Foundation's vast experience managing the lagoon as part of their collective efforts
to protect the Preserve.
Under the Preserve's management plan, the Center's responsibilities will include the
inventory and monitoring of important habitat and wildlife populations such as birds, mammals,
reptiles, amphibians, invertebrate and sensitive plant species as well as ongoing maintenance of
the property including erosion control, fence and gate maintenance, and sign construction and
replacement. In addition, the Center will conduct programs including habitat restoration and
enhancement, invasive pest/exotic plant species control, plant and animal management, fire
management and public education. Morrow Development has established an endowment in
excess of SI .4 million to provide for maintenance of the Preserve in perpetuity,
Designated Uses
To insure the protection of the La Costa Preserve for the enjoyment of all the residents,
the following rules have been established:
The Preserve is open for walking, hiking, wildlife viewing and horseback riding
on designated trails only. Dogs must be leashed.
La Costa Oak* EXHIBIT "E"
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Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 110 of 118
Older: 0698 Comment: . •— —
• Mountain bikes, off-road vehicles, camping, shooting and hunting are not
allowed.
• Cliff jumping and swimming are strictly prohibited in Box Canyon.
Management Contact
Center for Natural Lands Management
425 East Alvarado Street, Suite H
Fallbrook, CA 92028-2960
(760)731-7790
2
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3
2
La Costa Oak. EXHIBIT "E"
CC&RS
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Description: San Diego,CA Document-Year.DocID 2003.755993 Page: 111 of 118
Order: OS98 Comment: - •• • •-
EXHIBIT "F"
Fire Suppression Zones
Fire suppression zones are managed strips of land consisting of irrigated zones and dry or
thinning zones of varying width, depending on local conditions. Therefore, fire suppression
zones, if applicable, will vary from lot to lot. Additionally, within the fire suppression zones
sub-zones exist, again depending on specific site conditions. The site conditions are broken into
two distinct categories, Manufactured Slopes — Condition A, or Native Slopes — Condition B.
The sub-zones are shown on page 4 of this Exhibit F, and described as follows:
1. Condition A — Manufactured Slope Fire Protection n
a. Section A-l — measured horizontally 20 feet outward from the outlying 0
edge of structure(s). 4
3
• Planted with groundcover or low growing shrub species (less than • *
three (3) feet in height) known to have fire retardant qualities. «
• No trees or shrubs allowed.
• No structures allowed including patio trellises, arbors, fire pits,
gazebos, enclosed porches and balconies.
• Irrigated.
b. Section A-2 — measured horizontally 20 feet outward from the outlying
edge of Section A-l.
• Planted with low water use naturalizing plant species known to
have low fuel characteristics.
• No trees allowed.
Irrigated.
c. Section A-3 — measured outward from the outlying edge of A-2 to
include the remainder of the area between Section A-2 and high-risk fire areas. Horizontal
distance from the structure(s) to untreated high-risk areas shall not be less than 60 feet.
Planted with low water use naturalizing plant species known to
have low fuel characteristics.
• Trees are allowed, but shall not be planted closer than 20 feet
apart.
• Irrigated.
U Costa Oaks EXHIBIT "F"
CC&RS
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Description: San Diego, CA Document-If ear.DocID 2003.765993 Page: 112 of 118
Order: 0698 Comment:
2, Condition B — Native Slopes — Wild Land Fire Suppression
Pertains to areas where removal of environmentally sensitive native vegetation is
restricted within the fire sections.
a. Section B-l — measured 20 feet horizontally from the outlying edge of
the structure(s) toward the environmentally restricted area as defined by the City.
• Removal of "high fuel and moderate hazard species."
• Planting with groundcover or low growing shrub species (less that
three feet in height) known to have fire retardant qualities or as otherwise required by the City. «
• No trees or shrubs allowed. Q
4• No structures allowed including patio trellises, arbors, fire pits, «
gazebos, enclosed porches and balconies. «4
• Irrigated.
b. Section B-2 — measured horizontally 20 feet outward from the outlying
edge of Section B-l.
• Removal of "high fuel species."
• Removal of selective pruning of up to 60 percent of the volume of
the "moderate fuel species."
• Replanting with naturalizing low fuel species.
• Trees and large tree form shrubs (e.g., Oaks, Sumac, Toyon) which
are being retained shall be pruned to provide clearance equal to three times the height of the
surrounding understory plant material or six feet, whichever is higher. Dead and excessively
twiggy growth shall also be removed.
• Temporarily irrigated.
c. Section B-3 — measured horizontally 20 feet outward from the outlying
edge of Section B-2. The outer edge of B-3 shall extend horizontally to a point at least 60 feet
from structures.
• Removal of "high fuel species."
• Removal by selective pruning of up to 40 percent of the volume of
the "moderate fuel species."
Trees and large tree form shrubs (e.g., Oaks, Sumac, Toyon) which
are being retained shall be pruned to provide clearance equal to three times the height of the
U Costa Oaks EXHIBIT "F"
CC&RS
27317-00008/1695243.15 [W]
Description: San Diego,CA Document - Year.DocID 2003.765993 Page: 113 of 118
Order: 0598 Comment: •
surrounding understory plant material or six feet, whichever is higher. Dead and excessively
twiggy growth shall also be removed.
Not irrigated.
3. All homeowner or Community Association fencing situated on land which is
included within Condition A (Manufactured Slope - Fire Protection) or Condition B (Native
I Slopes - Wild Land Fire Suppression) shall be constructed of non-combustible material.
I Specifically, no wood fencing is permitted in such areas.
2
6
4
3
5
La Costa Oaks EXHIBIT "F"
CC&RS
27817-00008/1695243.15 [W]
Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 114 of 119
Order: 0698 Comment:
HATIVE
"CONDITION A" - MANUFACTURED SLOPES
. ftrosecltont
SECTION
irrigation
"planting
Jj-1
•""35—B-2
VDUME
• nm naevu. ef HCMOJO.
B-3-~5ff~
MO
CF Tie uocewc nEL
5PeoEsvou*e
• »o» naoM. <
"CONDITION Bn - NATIVE SLOPES
flra sections
NATIVE
26
4
3
6
VILLAGES OF
LA COSTA FIRE PROTECTION ZONES
La Costa Oats
CCtRs
27SI7-3-I695243.ll EXHIBIT "F"
Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 115 of 118
Order: 0698 Comment:
EXHIBIT "G"
Acacia app.
Agrostis avonacea
Agrostis stolonifera
Anagallis arvensis
Aptenia cordifolla
Atriplex semibaccala
Arundo donax
Brassica nigra
Carpobrotus edutis
Cirsium vulgare
Cortaderiajubata
Cortaderia selloana
Cynodon dactylon
Cyperus involucratus
Eucalyptus globules & other species
Foenictilum volgare
Lepidium latifolium
Nictiana giauca
Pennisetum clandestinum
Pennisetum setacaum
Polypogon monspeliensis
Riciuus communls
Schinus molfe
Schinus terebinthifolius
Tarnarix spp.
Washington filltera
Xanthium .strumarium
Invasive Species
Wattle, acacia
Pacific bent grass
Pacific bent grass
Scarlet pimpernel-
Red apple ice plant
Australian salt brush
Giant reed
Black mustard
Ice plant
Bull thistle
Andean pampas grass
Pampas grass
Bermuda grass
African umbrella plant
Tasmanian blue gumleucalyptus
Fennel
Perennial pepper weed
Tree tobacco
Kikuyo grass
Fountain grass
Annual beard grass/rabbit s foot
Castor-bean
Peruvian peppertree
Brazilian pepper
Tamarish, salt cedar
Fan palm
Cocklebur
2
6
4
3
7
La Costa Oaks
CC&RS
27817-00008/1695243.15 [W]
EXHIBIT "G"
Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 116 of 118
Older: 0598 Comment: - • — "• "" ~ :
EXHIBIT "H"
Dam Inundation Areas
[Attached Hereto]
2
6
3
La Costa Oaks EXHIBIT H
CC&RS
27817-00008/1695243.15 [W]
Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 117 of 118
Order: 0699 Comment: • -- ~ '
VILLAGES OF LACOSU -THE OAKS SOUTH
2
6
4
3
9
Description: San Diego,CA Document-Year.DocID 2003.765993 Page: 118 of 113