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HomeMy WebLinkAboutCDP 97-14; Bella Lago; Coastal Development Permit (CDP) (8)* STATE OF CALIFORNIA—THE RESOURCES AGEN^. - PETE WILSON, Governor • CALIFORNIA COASTAL COMMISSION SAN DIEGO COAST AREA 3111 CAMINO DEL RIO NORTH, SUITE 200 COASTAL DEVELOPMENT PERMIT NO. 6-96-43 SAN DIEGO, CA 92108-1725 Paae 1 of" 7 (619)521-8036 y ' On July 12. 1996 , the California Coastal Commission granted to Aviara Land Associates this permit for the development described below, subject to the attached Standard and Special Conditions. Description: Application of Aviara Land Associates to subdivide 44.1 acres into 69 lots (65 single family residential lots, two open space lots, and two interior private street lots) and site preparation including 21,200 cubic yards of balanced grading in Planning Area 28 of Aviara Master Plan. The applicant also proposes a number of public access improvements including a 25 space off-street public parking lot, a 1/3 mile nature trail to link-up from the parking lot through a eucalyptus grove to the Batiquitos Lagoon North Shore Trail just west of the Planning Area boundary, a public access easement over the entire alignment of this trail, an additional improved public trail access at the existing Aviara Golf Clubhouse and an offer to dedicate this trail segment, exclusive reservation of 10 parking spaces at the clubhouse for trail parking. A complete list of the applicant's proposed public access improvements is provided as Exhibit 9 attached to this staff report. Zoning PC Planned Community Plan Designation RLM/RM/OS Project Density 1.38 dua Site: South of Batiquitos Drive between Kestrel Drive and 1-5, Carlsbad, San Diego County, APN 216-111-08, 09, 216-150-18 Issued on behalf of the California Coastal Commission by PETER DOUGLAS Executive Director and COASTAL DEVELOPMENT PE'^T NO. 6-96-43 Page 2 of 7 IMPORTANT: THIS PERMIT IS NOT VALID UNLESS AND UNTIL A COPY OF THE PERMIT WITH THE SIGNED ACKNOWLEDGEMENT HAS BEEN RETURNED TO THE COMMISSION OFFICE. ACKNOWLEDGEMENT The undersigned permittee acknowledges receipt of this permit and agrees to abide by all terms and^onditions thereof. Date Signature of Permittee STANDARD CONDITIONS: 1. Notice of Receipt and Acknowledgement. The permit is not valid and development shall not commence until .a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Expiration. If development has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. Compliance. All development must occur in strict compliance with the proposal as set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval. 4. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5. Inspections. The Commission staff shall be allowed to inspect the site and the development during construction, subject to 24-hour advance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 7. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. COASTAL DEVELOPMENT PE' T NO. 6-96-43 Page 3 of 7 SPECIAL CONDITIONS: The permit is subject to the following conditions: 1. Proposed Public Trail Access Easements and Public Facilities. Prior to the issuance of the coastal development permit, the applicant shall submit to the Executive Director for review and written approval, compliance with the following to implement the applicant's proposed public access program: a. Planning Area #28: Evidence of recordation of an offer to dedicate or deed restriction, in a form and content acceptable to the Executive Director, restricting for public use the proposed public access parking lot #1, to accommodate 25 automobiles, on the proposed lot at the northwestern corner of Batiquitos Drive and Nitens Street. b. Planning Areas #28 and #30: Evidence of recordation of an offer to dedicate or deed restriction, in a form and content acceptable to the Executive Director, restricting for public use a 10 foot wide public access easement (Trail No. 1) to provide pedestrian access to the existing Batiquitos Lagoon North Shore Trail. Such access trail shall extend from the PA 28 parking lot, through Open Space Lots 64 and 106 (PA 28 and 30), to the North Shore Trail. Such trail shall be open to the public in perpetuity and include benches to be constructed by the developer. c. Planning Area #1. Evidence of recordation of an offer to dedicate or deed restriction, in a form and content acceptable to the Executive Director, restricting for public use a 5 foot wide public access easement within the lagoon buffer between the Golf Course property line and the existing North Shore Trail. d. Evidence of recordation of a deed restriction, in a form and content acceptable to the Executive Director, restricting for public use ten parking spaces (including 2 handicapped spaces) within the existing Golf Clubhouse parking lot for exclusive use for public trail parking during the hours the North Shore Trail is open to the public, as adopted by the Department of Fish and Game (DFG) and approved by the Coastal Commission. Use of the public area within the Golf Course parking lot shall be subject to the rules and regulations for North Shore Trail usuage adopted by the DFG, including, but not limited to specific hours of operation and the prohibition of overnight parking. It is the right of the underlying owner to take steps to enforce these rules, including reporting violations to the DFG, the local Police Department, or private security. e. The evidence of recordation of a deed restriction, in form and content acceptable to the Executive Director, to assure the non-exclusive but permanent right of public access across the Golf Clubhouse parking lot, and the associated sidewalk area between the Golf Clubhouse parking lot and the lagoon buffer access referred to in Special Condition No. l(c). COASTAL DEVELOPMENT PE .T NO. 6-96-43 Page 4 of 7 SPECIAL CONDITIONS, continued: f. Submittal of a Letter of Agreement, signed by the applicant, to dedicate land for a Lagoon Information Center in the area immediately westerly of the North Batiquitos Sewer Pump Station in PA 30, if requested in the future by the Department of Fish and Game. g. Submittal of a Letter of Agreement, signed by the applicant, to fund construction of a single all-weather (decomposed granite) bus parking space to serve the existing and future Lagoon Interpretive Center, if requested in the future by the Department of Fish and Game. The developer shall be responsible only for the construction, and shall not be responsible for site acquisition, permits, mitigation or other requirements of installation of the space. 2. Revised Tentative Mao. Prior to the issuance of the coastal development permit, the applicant shall submit to the Executive Director for review and written approval, a revised tentative map in substantial conformance with the submitted map, approved by the City of Carlsbad, which indicates the following changes to CT-31 for subdivision of PA 28: a. Provision of a 10 foot wide public access trail easement to provide pedestrian access to the existing Batiquitos Lagoon North Shore Trail. Such access trail shall extend from the PA 28 parking lot, through Open Space Lots 64 and 106 (PA 28 and 30), to the North Shore Trail. Such trail shall be open to the public in perpetuity; b. Provision of a public trail access parking lot #1, to accommodate 25 automobiles, on the proposed lot at the northwestern corner of Batiquitos Drive and Nitens Street, within PA 28; c. Deletion of the outdoor classroom; d. Notes indicating the on-site public access trail and parking improvements shall be installed prior to occupancy of the residential units within PA 28, and shall be open to the public in perpetuity. 3. Public Access Improvement Plans. Prior to the issuance of the coastal development permit, the applicant shall submit to the *Executive Director for review and written approval, public access improvement plans which indicate the following: a. Planning Area #28. Reconstruction of the access trail between Public Parking Lot #2 (Phase II lot) to design parameters in compliance with handicapped access standards, if feasible. The revised design may require an amendment to this coastal development permit. The proposed on-site public access improvements shall be installed prior to occupancy of the residential units within PA 28. COASTAL DEVELOPMENT PEr T NO. 6-96-43 Page 5 of 7 SPECIAL CONDITION, continued: b. Planning Areas #28 and #30. Construction of a 5 foot wide improved trail with benches at view areas along the alignment of the access trail in PA 28 and PA 30 to be constructed by the developer prior to occupancy of the residential units within PA 28. c. Planning Area #1. Provision of an additional public access trail (5 foot wide) between the Aviara Golf Clubhouse parking lot and the North Shore Trail to be constructed within 6 months of Commission action on this coastal development permit. During the interim period, between Commission action on this permit and 6 months from that date, public access through this proposed trail alignment shall be accommodated to the degree feasible, recognizing that safety considerations may preclude such access during the period of actual construction of the subject gate, trail and signage improvements. d. Slqnaae to designate each of the ten parking spaces (including 2 handicapped spaces) within the existing Golf Clubhouse parking lot for public trail parking for the North Shore Trail to be installed within 3 months of Commission action on this coastal development permit. .4. Public Access Signaae Plans. Prior to the issuance of the coastal development permit, and within 30 days of Commission action on this permit, the applicant shall submit to the Executive Director for review and written approval in consultation with the Department of Fish and Game, a detailed public access signage plan, to be installed at the entry to all public parking lots and North Shore Trail access trailheads. The signs shall also be installed at the intersections of Poinsettia Lane and Batiquitos Drive, Alga Road and Poinsettia Lane, Alga Road and Batiquitos Drive, and the Kestrel Drive and Alga Road intersection. Additionally, public access signs shall be installed at the No. 1 parking lot and the No. 3 parking lot (Golf Clubhouse) visible from Batiquitos Drive, and at the trailheads leading from the parking lots, and at both ends of the North Shore Trail. Said signage shall read, "Public Parking Lot" and "Public Access to Lagoon Trail - Open to the Public" or similar language. Hours of operation consistent with public hours proposed by the Department of Fish and Game and approved by the Executive Director may be posted. All signs must be erected at the proposed locations within 6 months of the Commission's action on this permit. Said plan shall be approved in writing by the Executive Director in consultation with the Department of Fish and Game. 5. Grading/Erosion Control. Prior to the issuance of the coastal development permit, the applicant shall submit to the Executive Director for review and written approval, final site and grading plans approved by the City of Carlsbad which incorporate the following requirements: a. All grading activity shall be prohibited between October 1st and April 1st of any year. COASTAL DEVELOPMENT PEr T NO. 6-96-43 Page 6 of 7 SPECIAL CONDITIONS, continued: b. All permanent runoff and erosion control devices shall be developed and installed prior to October 1. c. All areas disturbed, but not completed, during the construction season, including graded pads, shall be stabilized prior to October 1. Any proposed temporary erosion control measures, such as interceptor ditches, sandbagging, debris basins, temporary desilting basins and silt traps shall be used in conjunction with plantings to minimize soils loss from the construction site. d. Maintenance of temporary erosion control measures is the responsibility of the applicant, including replacement of any devices altered or dislodged by storms. 6. Revised Landscape/Fire Suppression Plan. Prior to the issuance of the coastal development permit, the applicant shall submit a revised landscape/fire suppression plan for Planning Area 28. The plan shall indicate the type, size, extent and location of trees to be planted on the manufactured .slopes of lots 11-15, 17-23 and 56-62 and shall be prepared in consultation with the City of Carlsbad Planning and Fire Departments. The City of Carlsbad must approve the above revision to the Landscape/Fire Suppression Plan or an .amendment to this permit may be required. Regarding these lots, the revised plan shall include the following: The placement of a combination of twenty-three 15 gallon and 24 inch box specimen size trees on the rear slopes of Lots 17 to 23, 11 to 15 and 56 to 62. Said trees shall be of an evergreen species compatible with the natural character of the surrounding environs. The trees shall be located to soften views of the structures from Interstate 5 and the North Shore Trail, while preserving views from the homes to Interstate 5 and Batiquitos Lagoon. No trees shall be required on the development pads. The required trees shall be planted prior to occupancy of the homes and be maintained in good growing condition for the life of the residence. This tree requirement shall supplement the fire suppression plan/deed restriction approved pursuant to CDP #6-91-46 (Phase II Aviara). Said plan shall be submitted to, reviewed and approved in writing by the Executive Director prior to the issuance of the coastal development permit. a. Prior to the issuance of the coastal development permit, the applicant shall record a deed restriction, in a form and content acceptable to the Executive Director. The restriction shall be recorded against the individual lots subject to l(a) above and shall incorporate the requirements of condition #l(a) above to assure that specimen size trees in substantial conformance with those plans COASTAL DEVELOPMENT PE !T NO. 6-96-43 Page 7 of 7 SPECIAL CONDITIONS, continued: approved with CDP #6-96-43 are maintained throughout the life of the permitted development. The restriction shall be recorded, free of all prior liens and encumbrances, except for tax liens, and binding on the permittee's successors in interest and any subsequent purchasers of any protion of the real property. 7. Future Development. Construction of single family residences, shall require review and approval by the Coastal Commission, or its successor in interest, under a separate coastal development permit or an amendment to this permit. (6043P) BROOKFIELD HOMES SAN DIEGO INC. 12865 Pt Del Mar, #200, Del Mar, CA 92014 TRANSMITTAL DATE: April 25,1997 TO: Mike Grimm FIRM: City of Carlsbad FROM: Carol Ford DIRECTS (619)794-6172 FAX#: (619)793-2395 RECEIVED APR 2 5 CITY OF CARLSBAD SUBJECT:LAGO - PA 28 TRANSMITTING: 1 Declaration of Covenants, Conditions and Restrictions COMMENTS: This document is being submitted for your review. We are submitting this to the DRE as well. Recording Requested By and RECEIVED When Recorded Return To: HECHT, SOLBERG, ROBINSON & GOLDBERG LLP ^PR 2 5 1997 Mr. John Hecht 600 West Broadway, Eighth Floor San Diego, California 92101 DECLARATION OF RESTRICTIONS FOR BELLA LAGO PLANNED DEVELOPMENT AviaraArea 28 3/25/97 TABLE OF CONTENTS PAGE RECITALS 1 ARTICLE I DEFINITIONS 2 Section 1.1 Annexable Property 2 Section 1.2 Articles 2 Section 1.3 Association 2 Section 1.4 Board 2 Section 1.5 Bylaws 2 Section 1.6 City 2 Section 1.7 Common Area 2 Section 1.8 Common Maintenance Area 3 Section 1.9 Declarant 3 Section 1.10 Declaration 3 Section 1.11 Final Maps 3 Section 1.12 Lot 3 Section 1.13 Master Declaration 3 Section 1.14 Member 3 Section 1.15 Mortgage 3 Section 1.16 Mortgagee 3 Section 1.17 Owner 4 Section 1.18 Phase 4 Section 1.19 Project 4 Section 1.20 Retail Purchaser 4 ARTICLE II PROPERTY RIGHTS IN COMMON AREA 4 Section 2.1 Owners' Easements of Enjoyment 4 Section 2.2 City Easement 5 Section 2.3 Delegation of Use 5 Section 2.4 Conveyance of Common Area 5 ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 6 Section 3.1 Membership 6 Section 3.2 Voting Rights 6 ARTICLE IV COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION . 6 Section 4.1 Creation of Lien and Personal Obligation for Assessments 6 Section 4.2 Purpose of Assessments 7 Section 4.3 Limitation on Regular and Special Assessments 7 Section 4.4 Individual Special Assessments 8 Section 4.5 Uniform Rate of Assessment 8 Section 4.6 Date of Commencement of Regular Assessments; Due Dates .... 8 Section 4.7 Model Homes 8 Section 4.8 Uncompleted Facilities 9 Section 4.9 Effect of Non-Payment of Assessments; Remedies of Association . 9 Avlara Area 28 3/25/97 PAGE Section 4.10 Section 4.1 1 Section 4.12 Section 4.13 ARTICLE V Section 5.1 Section 5.2 ARTICLE VI Section 6.1 Section 6.2 Section 6.3 Section 6.4 Section 6.5 Section 6.6 Section 6.7 Section 6.8 Section 6.9 Section 6.10 Section 6.1 1 ARTICLE VII Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 Section 7.9 Section 7.10 Section 7.1 1 Section 7.12 Section 7.13 Section 7.14 Section 7.15 Section 7.16 Section 7.17 Section 7.18 Section 7.19 Section 7.20 Section 7.21 Section 7.22 Subordination of the Lien to First Mortgages Estoppel Certificate Personal Liability of Owner Assessments Levied By City GOVERNMENTAL REGULATIONS Project Is Subject to Regulations City Not Responsible to Enforce ARCHITECTURAL CONTROL Architectural Committee Committee Approval Other Approvals Approved Conditions Notification Waiver No Liability Design Criteria Variances Committee Guidelines Declarant Exemption; Declarant Rights USE RESTRICTIONS In General Residential Use New Building Only Balconies, Decks and Fences No Second-Hand Materials, Painting Required Solar Panels, Antennae, Satellite Dishes Diligence in Construction Required Drying Yards No Time-Share Projects Signs Animals No Commercial Activity; No Nuisance Drainage Slope Control, Use and Maintenance No Hazardous Activities Unsightly Articles No Temporary Structures Garages; Parking Spaces; Vehicular Restrictions No Recreational Vehicles Weeds, Rubbish, Sanitary Containers, Etc Plants Landscaping 10 10 10 10 11 11 11 11 11 12 12 12 12 13 13 13 13 14 14 15 15 15 16 16 16 16 17 17 17 17 17 17 18 18 18 18 19 19 19 19 19 19 Aviera Area 28 3/25/97 PAGE Section 7.23 Grading 19 Section 7.24 Owners Responsible for Damage 19 Section 7.25 Construction and Sales Activities 20 Section 7.26 Owners May Not Change Common Area 20 Section 7.27 Water and Sewer Systems 20 Section 7.28 Site Distance Corridors 20 Section 7.29 Post-Tensioned Slabs 20 Section 7.30 Retaining Walls 20 Section 7.31 Open Space Easements 21 ARTICLE VIII INSURANCE AND CONDEMNATION 21 Section 8.1 Insurance 21 Section 8.2 Condemnation 22 ARTICLE IX MAINTENANCE RESPONSIBILITIES 22 Section 9.1 Parties Responsible for Maintenance of Common Area 22 Section 9.2 Association Maintenance 22 Section 9.3 Owner Maintenance 23 Section 9.4 Master Association 23 Section 9.5 Association's Right to Repair Neglected Lots 24 Section 9.6 Maintenance by City 24 ARTICLE X ANNEXATION 24 Section 10.1 By Association 24 Section 10.2 By Declarant 24 ARTICLE XI RIGHTS OF LENDERS 25 Section 11.1 Payments of Taxes or Premiums by First Mortgagees 25 Section 11.2 Priority of Lien of Mortgage 25 Section 11.3 Curing Defaults 25 Section 11.4 Approval of First Mortgagees 25 Section 11.5 Restoration of Common Area 26 Section 11.6 Professional Management 26 Section 11.7 Notice to Mortgagees 26 Section 11.8 Documents to be Available 27 Section 11.9 Conflicts 27 ARTICLE XII GENERAL PROVISIONS 27 Section 12.1 Enforcement 27 Section 12.2 Severability 27 Section 12.3 Amendments 28 Section 12.4 Extension of Declaration 28 Section 12.5 Encroachment Easements 29 Section 12.6 Special Responsibilities of Association 30 Section 12.7 Litigation 30 Section 1 2.8 Documents to be Provided to Prospective Purchaser 30 Aviara Area 28 3/25/97 -III- PAGE Section 12.9 Limitation of Restrictions on Declarant 31 Section 12.10 Easement to Inspect and Test 31 Section 12.11 Master Declaration 32 SUBORDINATION AGREEMENT(S) Avian Area 28 3/25/97 -iv- DECLARATION OF RESTRICTIONS THIS DECLARATION OF RESTRICTIONS ("Declaration") is made as of 19 , by BROOKFIELD CARLSBAD INC., a California corporation (hereinafter referred to as "Declarant"), with reference to the following RECITALS: A. Declarant is the owner of the real property located in the City of Carlsbad, County of San Diego, California, described as: Lots 8 through 11 and 22 through 30 of CARLSBAD TRACT NO. 90-31 AVIARA PLANNING AREA 28 UNIT 1 according to Map thereof No. 13368, filed with the County Recorder of San Diego County, California on November 8, 1996. which real property is referred to herein as "Phase 1". B. Phase 1 is the first Phase of real property owned by Declarant and described on Exhibit "A" attached hereto. Declarant may from time to time annex to this Declaration and to the jurisdiction of BELLA LAGO HOMEOWNERS ASSOCIATION, a California nonprofit mutual benefit corporation (the "Association"), as additional Phases some or all of the additional real property described on Exhibit "A" (the "Annexable Property"). This Declaration initially encumbers only Phase 1. Reference in this Declaration to the "Project" refers to Phase 1 described above and such additional Phases as become annexed to this Declaration. C. Declarant plans to develop the Project as a Common Interest Development described in §1351(k) of the California CIVIL CODE as a "Planned Development" consisting of single-family detached homes, together with common areas as described in this Declaration. There is no guarantee that all Phases will be developed or annexed to this Declaration or developed or annexed in any particular order. Some Phases may be developed concurrently. Declarant reserves the right during the development of the Project to change the phasing and the design, size, type and price of the homes to be built in the Project and the construction and phasing of the development of the Project. D. The owners of residential lots will be members of the Association. The Associ- ation shall also own and maintain certain real property ("Common Area") and shall maintain the Common Maintenance Area, being portions of certain Lots upon which maintenance easements have been granted to the Association. Current plans call for the Common Area to consist only of private streets and for the Common Maintenance Area to consist only of certain entryway improvements and landscaping, such as entry gates, guardhouses, entry monuments and landscaping. E. The Project, being a part of an overall project known as "Aviara", is subject to that certain Third Amended And Restated Master Declaration of Covenants, Conditions and Aviara Area 28 3/25/97 -1- Restrictions For Aviara (the "Master Declaration") recorded September 16, 1991, Document No. 1991-0475307, Official Records of San Diego County, California. F. Before selling any of the residential lots, Declarant wishes to impose the following plan of covenants and restrictions on Phase 1 and on each additional Phase which becomes annexed to this Declaration. NOW, THEREFORE, Declarant hereby certifies and declares and does hereby establish the following general plan for the protection and benefit of all of the Project and has fixed and does hereby fix the following protective covenants and restrictions upon each and every ownership interest in the Project under which covenants and restrictions each ownership interest shall be held, used, occupied, leased, sold, encumbered, conveyed and/or transferred. Each and all of the covenants and restrictions are for the purpose of protecting the value and desirability of and shall inure to the benefit of and shall run with and be binding upon and pass with each Lot and Common Area within the Project 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. The covenants and restrictions herein set forth are enforceable equitable servitudes as described in California CIVIL CODE Section 1354. ARTICLE I DEFINITIONS Section 1.1. "Annexable Property" — The real property described on Exhibit "A" attached hereto other than Phase 1. Section 1.2. "Articles" — The Articles of Incorporation of the Association. Section 1.3. "Association" - BELLA LAGO HOMEOWNERS ASSOCIATION, a California Nonprofit Mutual Benefit Corporation. Section 1.4. "Board" — The Board of Directors of the Association. Section 1.5. "Bylaws" — The Bylaws of the Association. Section 1.6. "City" — The City of Carlsbad, California, a municipal corporation. Section 1.7. "Common Area" — All real property owned in fee by the Association. It is presently intended that the Common Area will consist of private street lots or easements over private street lots or portions of such lots. The Common Area for Phase 1 is described as follows: A non-exclusive easement for ingress and egress over that portion of Lot 34 of CARLSBAD TRACT NO. 90-31 AVIARA PLANNING AREA 28 UNIT 1 according to Map thereof No. Aviara Area 28 3/25/97 -2- 13368, filed with the County Recorder of San Diego County, California on November 8, 1996 described as follows: [Description of Portion of Lot 34 To Provide Access To Phase 1] Each conveyance to the Association of the Common Area shall be subject to all items of record and all reservations and exceptions set forth in the deed of conveyance. Section 1.8. "Common Maintenance Area" — Those portions of the Project which, in addition to the Common Area, the Association is obligated to maintain. There is no Common Maintenance Area within Phase 1. The Common Maintenance Area, if any, in a subsequent Phase will be identified in the deed which grants the applicable maintenance easement to the Association and may be described in the respective Declaration of Annexation for the Phase. Generally, these areas will include certain entry way improvements (monumentation). Section 1.9. "Declarant" — BROOKFIELD CARLSBAD INC., a California corporation, its successors and assigns, if such successor or assign should acquire more than five (5) Lots for the purpose of development, and the rights of "Declarant" are assigned to such successor or assign. The rights of Declarant shall be deemed assigned to any lender of Declarant whose loan is secured by a Mortgage which encumbers any portion of the Project. Section 1.10. "Declaration" — This Declaration of Restrictions. Section 1.11. "Final Maps" —The final subdivision maps of CARLSBAD TRACT NO. 95-01 AVIARA PLANNING AREA 28 UNIT 1, Map No. 13368 and CARLSBAD TRACT NO. 95-01 AVIARA PLANNING AREA 28 UNIT 2, Map No. 13369. Section 1.12. "Lot" — Any plot of land shown as a separate lot or parcel upon any recorded Final Map or Parcel Map of any portion of the Project, with the exception of the Common Area. In the event the boundaries of any Lot are adjusted in compliance with the California Subdivision Map Act, then "Lot" shall refer to the Lot as so adjusted. Section 1.13. "Master Declaration" — That certain Third Amended And Restated Master Declaration of Covenants, Conditions and Restrictions For Aviara (the "Master Declaration") recorded September 16, 1991, Document No. 1991-0475307, Official Records of San Diego County, California. Section 1.14. "Member" — An Owner who is entitled to membership in the Associ- ation as provided in the Declaration. Section 1.15. "Mortgage" — A Deed of Trust as well as a mortgage encumbering a Lot. Section 1.16. "Mortgagee" — The beneficiary of a Deed of Trust as well as the mortgagee of a Mortgage. Aviara Area 28 3/25/97 -3- Section 1.17. "Owner" — The record owners, whether one or more persons or entities, 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. Section 1.18. "Phase" — Each subsequent Phase shall consist of those Lots (and Common Area) within the Project which are covered by a separate Final Subdivision Public Report or described in a Final Subdivision Public Report as constituting a separate phase. "Final Subdivision Public Report" refers to such report issued by the California Department of Real Estate as the report may be amended from time to time. One or more Phases may be annexed by the same Declaration of Annexation. Section 1.19. "Project" — Phase 1 and each additional Phase which is annexed to this Declaration. Section 1.20. "Retail Purchaser" — A person who purchases a Lot under authority of a Final Subdivision Public Report issued by the California Department of Real Estate. Neither Declarant nor any successive Declarant are Retail Purchasers. ARTICLE II PROPERTY RIGHTS IN COMMON AREA Section 2.1. Owners' Easement of Use. The Common Area is intended to include only the private streets and no active recreational areas are currently planned. Should the Common Area include active recreational areas (no such areas are currently planned), then every Owner shall have a right and easement of ingress, egress and of enjoyment in and to such Common Area which easement shall be appurtenant to and shall pass with the title to the Owner's Lot. Such right and easement shall be subject to the following provisions: (a) The right of the Association to suspend the voting rights and right to use of the Common Area by an Owner for any period during which any Association assessment against his Lot remains unpaid; and for a period not to exceed thirty (30) days for any infraction of the published rules and regulations of the Association. No suspension shall be effective unless the Owner has been given fifteen (15) days' prior notice of the suspension and the reasons therefor and the Owner has been given an opportunity to be heard by the Board, orally or in writing, not less than five (5) days prior to the effective date of the suspension. Notice may be given to the Owner by any method reasonably calculated to provide actual notice, but if given by mail must be given by first-class or registered mail sent to the last address of the Owner shown on the records of the Association. (b) The right of the Association to dedicate or transfer all or any part of the Common Area to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the Board. (c) The right of the Association, in accordance with the Articles and Bylaws, to borrow money for the purpose of improving the Common Area and, with the Aviara Area 28 3/25/97 -4- assent of two-thirds (2/3) of each class of Members, hypothecate any or all real or personal property owned by the Association. (d) The right of access, ingress and egress over the Common Area and the right of installation and use of utilities on the Common Area for the benefit of Lots. (e) The right of the Association to grant maintenance, access and utility easements over the Common Area to others and to convey portions of the Common Area to others. No dedication or transfer of all or substantially all of the assets of the Association shall be effective unless approved by the Members in accordance with the California CORPORATIONS CODE. (f) The right of the Association to adopt rules and regulations relating to the use of the Common Area and the governance of the Project. (g) The right of the Association to grant exclusive use easements to Owners over, under, upon and across portions of the Common Area and/or adjust boundaries between the Common Area and one or more of the Lots. However, the areas to be so adjusted or made subject to use easements shall in the Board's opinion not be materially adverse to another Owner. (h) Subject to a concomitant obligation to restore, Declarant and its sales agents, employees and independent contractors shall have: (i) A non-exclusive easement over the Common Area for the purpose of making repairs to the Common Area or the residences on the Lots it owns, provided access is not otherwise reasonably available, and for the purpose of constructing, marketing and maintaining Phase 1 and the Annexable Property, including the construction of residences and related improvements; and (ii) The other rights and easements (including those of Declarant) set forth in this Declaration. Section 2.2. City Easement. The City shall have an easement over the Common Area and any Common Maintenance Area for maintenance purposes which may be exercised upon the failure of the Association to maintain the Common Area or any Common Maintenance Area in accordance with the conditions of approval of the Final Maps, pursuant to Section 9.6 of this Declaration. Section 2.3. Delegation of Use. Any Owner may delegate, in accordance with the Bylaws, his rights of enjoyment to the Common Area and facilities to the members of his family, his tenants or contract purchasers who reside on the Owner's Lot. Section 2.4. Conveyance of Common Area. Conveyance of the Common Area to the Association shall be made subject to all covenants, conditions, restrictions, reservations, dedications, easements and other items of the record. Avian Area 28 3/25/97 -5- ARTICLE HI MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION Section 3.1. Membership. Every Owner of a Lot which is subject to assessment by the Association shall be a Member of the Association. Membership is appurtenant to and may not be separated from ownership of a Lot. Section 3.2. Voting Rights. The Association shall have two (2) classes of voting membership: Cfass A. Class A Members shall be all Owners, with the exception of Declarant, and shall be entitled to one (1) vote for each Lot owned. When more than one (1) person holds an interest in any Lot, all such persons shall be Members. The vote for the Lot shall be exercised as the Owners among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Lot. Class B. Class B Member(s) shall be Declarant and shall be entitled to three (3) votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on the happening of the earlier of the following to occur: (i) two (2) years following the first conveyance of a Lot pursuant to the most recently issued original Final Subdivision Public Report for a Phase; or (ii) four (4) years following the date of the first conveyance of a Lot pursuant to the original Final Subdivision Public Report for Phase 1. Voting rights shall not commence with respect to a Lot until the Association's regular assessments have commenced against the Lot. ARTICLE IV COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION Section 4.1. Creation of Lien and Personal Obligation for Assessments. Declarant, for each Lot owned, covenants, and each Owner of a 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 Association: (a) regular assessments or charges which shall include an adequate reserve fund for the periodic maintenance, repair and replacement of the Common Area and Common Maintenance Area; and (b) special assessments. The regular and special assessments, together with interest, late charges, costs and reasonable attorney's fees, shall (except as otherwise provided in Section 4.4 below) be a charge on the land and shall be a continuing lien upon the 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 Lot at the time the assessment is due. Aviara Area 28 3/25/97 -6- Section 4.2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of the Project, for the improvement and maintenance of the Common Area and Common Maintenance Area, and to reimburse the Association for the costs incurred in bringing an Owner into compliance with the Articles, Bylaws, Declaration and rules and regulations adopted by the Board. The regular assessment is the assessment determined annually by the Board to meet the expenses of the Association, including the establishment of reserve accounts, for the next fiscal year based upon the annual budget adopted by the Board pursuant to the Bylaws. A special assessment is an assessment the Board, in its discretion, determines necessary if the Association's available funds are or will become inadequate to meet the estimated expenses of the Association for the fiscal year. The Board may levy the entire special assessment immediately or levy it in installments over a period the Board determines appropriate. In addition, a special assessment against a particular Owner only may be levied by the Board as set forth in Section 4.4 of the Declaration. The Board shall provide notice by first-class mail to each Owner of-any increase in the regular assessment or of any special assessment not fewer than thirty (30) days nor more than sixty (60) days prior to the increased assessment or special assessment becoming due. Section 4.3. Limitation on Regular and Special Assessments. The Board shall levy regular and special assessments sufficient to perform the obligations of the Association as provided in the Declaration and Bylaws; provided, however, except for assessment increases necessary for emergency situations: (a) the Board may not increase the regular assessments for any fiscal year unless the Board has complied with the provisions of California CIVIL CODE §1365.5 (preparation and distribution of the budget), and (b) the Board may not impose a regular assessment that is more than twenty percent (20%) greater than the regular assessment for the Association's preceding fiscal year nor special assessments which in the aggregate exceed five percent (5%) of the budgeted gross expense of the Association for the fiscal year, without the approval of Owners casting a majority of the votes at a meeting or election of the Association conducted in accordance with Chapter 5 (commencing with §7510) of Part 3 of Division 2 of Title 1 of the California CORPORATIONS CODE and §7613 of the California CORPORATIONS CODE at which a quorum was present or participated. For purposes of this Section 4.3, "quorum" means more than fifty percent (50%) of the Owners. An emergency situation is any one of the following: (1) An extraordinary expense required by an order of a court. (2) An extraordinary expense necessary to repair or maintain the Project or any part of the Project for which the Association is responsible where a threat to personal safety in the Project is discovered. (3) An extraordinary expense necessary to repair or maintain the Project or any part of the Project for which the Association is responsible that could not have been reasonably foreseen by the Board in preparing and distributing the pro forma Aviara Area 28 3/25/97 -7- operating budget under CIVIL CODE § 1365. However, prior to the imposition or collec- tion of an assessment under this Subsection, the Board shall pass a resolution containing written findings as to the necessity of the extraordinary expense involved and why the expense was not or could not have been reasonably foreseen in the budgeting process, and the resolution shall be distributed to the Members with the notice of assessment. The term "regular assessment for the Association's preceding fiscal year" as used in this Section 4.3 is deemed to be the regular assessment which would have existed in the absence of any subsidy of assessments agreed to be paid by Declarant. Anything in this Section to the contrary notwithstanding, the limitation on regular and special assessments shall comply with the laws of the State of California at the time the regular or special assessment is levied by the Association. Section 4.4. Individual Special Assessments. The Association may also impose a special assessment against a Member to reimburse the Association for costs incurred in bringing a Member or the Member's Lot into compliance with the provisions of the Declaration, the Articles, the Bylaws and the Association rules and regulations, which assessment may be imposed upon the vote of the Board after notice and an opportunity for a hearing which satisfy the requirements of §7341 of the California CORPORATIONS CODE; provided, however, that except to the extent the special assessment is to reimburse the Association for the cost of collecting assessments, a special assessment levied pursuant to this Section 4.4 shall not constitute a lien on the Member's Lot. Section 4.5. Uniform Rate of Assessment. Both regular and special assessments (other than a special assessment levied against an Owner to bring the Owner or the Owner's Lot into compliance with the Declaration, Articles, Bylaws or rules and regulations of the Board) shall be fixed at a uniform rate for all Lots and may be collected on a quarterly, monthly or other periodic basis as determined by the Board. However, this Section does not apply to Model Homes which are subject to Section 4.7 below (entitled "Model Homes"). Section 4.6. Date of Commencement of Regular Assessments: Due Dates. Regular assessments shall commence as to all Lots in Phase 1 on the first day of the month following the first conveyance of a Lot in Phase 1 to a Retail Purchaser. The regular assessments shall commence as to all Lots in a subsequent Phase on the first day of the month following the first conveyance of a Lot to an Owner other than Declarant in that Phase. The Board shall fix the amount of the regular assessment against each Lot. Written notice of any change in the regular assessment shall be sent to every Owner at least thirty (30) days before such change takes effect. The due dates for payment of assessments shall be established by the Board. Section 4.7. Model Homes. Conveyance of a Lot which is being used by Declarant for model home, sales office, design center, construction office or similar purposes (any of which uses are referred to in this Section as "Model Home") shall not commence the regular assessments against such Lots or other Lots within the Phase until: (a) discontinuance of use of such Lot as a Model Home; or Aviara Ana 28 3/25/97 -8- (b) conveyance of any non-Model Home Lot in the Phase to a Retail Purchaser, whichever first occurs. During the period of time commencing on the first day of the month after conveyance of a Lot being used by Declarant as a Model Home and ending on the date regular assessments commence against such Lot, Declarant shall be solely responsible to main- tain all portions of the Phase in which a Lot is being used as Model Home. The Board shall have the right to inspect the areas being maintained by Declarant pursuant to this Section to determine that such maintenance meets reasonable standards. Section 4.8. Uncompleted Facilities. The Board may exclude from assessments that portion which is for the purpose of defraying expenses and reserves directly attributable to the existence of a Common Area or Common Maintenance Area improvement that is not complete at the time the assessments commence. Any such exemption from assessments attributable to an Association maintained facility shall be in effect only until the earliest of the following events: (a) The improvement has been completed as evidenced by the recordation of a Notice of Completion; or (b) The improvement has been installed and placed into use. Section 4.9. Effect of Non-Payment of Assessments; Remedies of Association. Any assessment made in accordance with the Declaration shall be a debt of the Owner of a Lot at the time the assessment is due. Any assessment not paid within thirty (30) days after the due date shall bear interest from thirty (30) days following the due date at the rate of twelve percent (12%) per annum. The Association may bring an action at law against the Owner personally obligated to pay the assessment and, in addition thereto or in lieu thereof, may foreclose the lien against the Lot. Before the Association may place a lien upon a Lot to collect a debt which is past due, the Association shall notify the Owner in writing by certified mail of the fee and penalty procedures of the Association, provide an itemized statement of the charges owed by the Owner, including items on the statement which indicate the principal owed, any late charges and the method of calculation, any attorney's fees and the collection practices used by the Association, including the right of the Association to the reasonable costs of collection. Any payments toward such a debt shall be first applied to the principal owed, and only after the principal owed is paid in full shall such payments be applied to interest or collection expenses. Any assessment not paid within fifteen (15) days after the due date shall be delinquent. Except as otherwise provided in Section 4.4 above, the amount of any delinquent assessment plus costs of collection, late charges, penalties, interest and attorney's fees, shall be and become a lien upon the Lot when the Association causes to be recorded with the County Recorder of San Diego County, California, a Notice of Delinquent Assessment. The Notice of Delinquent Assessment shall state the amount of the delinquent assessment and the other charges as may be authorized by the Declaration, a description of the Lot against which the assessment has been made, the name of the record owner of the Lot and, in order for the Avian Area 28 3/25/97 -9- lien to be foreclosed by non-judicial foreclosure, the name and address of the trustee authorized by the Association to enforce the lien by sale. The Notice of Delinquent Assessment shall be signed by the person designated by the Association for that purpose or, if no one is designated, by the President of the Association, and mailed in the manner set forth in CIVIL CODE Section 2924(b) to all record owners of the Owner's interest in the Project no later than ten (10) calendar days after recordation of the Notice of Delinquent Assessment. Upon pay- ment of the delinquent assessment and charges in connection with which the Notice of Delinquent Assessment has been recorded, or other satisfaction thereof, the Association shall cause to be recorded a further notice stating the satisfaction and the release of the assessment lien. The assessment lien may be enforced by sale by the Association after failure of the Owner to pay the assessment and expiration of thirty (30) days following the recording of a lien created pursuant to this Section. The sale shall be conducted in accordance with the provisions of §2924, §2924b and §2924c of the California CIVIL CODE applicable to the exercise of powers of sale in mortgages or in any other manner permitted by law. The Associa- tion shall have the power to purchase the Lot at the foreclosure sale and to hold, lease, mortgage and convey the Lot. Suit to recover a money judgment for unpaid assessments, rent and attorney's fees shall be maintainable without foreclosing or waiving the lien securing the assessment. Section 4.10. Subordination of the Lien to First Mortgages. The assessment lien shall be subordinate to the lien of any first Mortgage, and the sale or transfer of any Lot pursuant to judicial or non-judicial foreclosure of a first Mortgage shall extinguish the lien of the assessment as to payments which became due prior to the sale or transfer. No sale or transfer shall relieve the Lot from lien rights for any assessments thereafter becoming due. When the Mortgagee of a first Mortgage or other purchaser of a Lot obtains title to the Lot as a result of foreclosure, the acquirer of title, his successors and assigns, shall not be liable for the share of the common expenses or assessments by the Association chargeable to the Lot which was due prior to the acquisition of title to the Lot by such acquirer, except for a share of the charges or assessments resulting from a re-allocation of the charges or assessments which are made against all Lots. Section 4.11. Estoppel Certificate. The Association shall furnish or cause an appro- priate officer to furnish, upon demand by any person, a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments on a Lot is binding upon the Association as of the date of its issuance. Section 4.12. Personal Liability of Owner. No Member may exempt himself or herself from personal liability for assessments levied by the Association, nor release the Lot owned by the Owner from the liens and charges for assessments by waiver of the use and enjoyment of the Common Area or by abandonment of the Owner's Lot. Section 4.13. Assessments Levied By Citv. In the event the City performs main- tenance of the Common Area as provided in Section 9.6, the City shall be entitled to reimbursement from the Owners for the actual costs incurred by the City in performing such maintenance. After performing such maintenance, the City shall provide written notice to the Aviara Area 28 3/25/97 -10- Owners, with a copy to the Association, setting forth the total amount due from each Owner with respect to such maintenance. The amount to be reimbursed to the City shall be allocated among the Owners at a uniform rate for all Lots. The City shall be entitled to collect, and each Owner shall pay to the City, all or any portion of the regular assessments otherwise payable by such Owner to the Association, until such time as the City has been paid the amount due from such Owner in full. Each Owner shall be entitled to an offset from the regular assessments otherwise payable to the Association in an amount equal to the amounts paid to the City pursuant to this Section. If any Owner fails to pay such regular assessments to the City, the City shall have the right to enforce the obligation of an Owner to pay such assessments in the same manner as the Association with regard to regular assessments as provided in Section 4.9 of this Declaration. ARTICLE V GOVERNMENTAL REGULATIONS Section 5.1. Project Is Subject to Regulations. The Project and its use are subject to the jurisdiction of the City, and the ordinances, regulations and permits issued by the City, including the conditions to approval of the tentative tract maps for the Final Maps and to coastal development permits issued by the California Coastal Commission. Among other requirements, the Project is subject to the City's brush management program and each Owner shall comply with the City of Carlsbad Landscape Manual or governing manual. Each Owner shall at all times comply with each governmental ordinance, regulation or permit which is applicable to such Owner's Lot. Section 5.2. City Not Responsible to Enforce. As stated in this Declaration, the City has the rights to enforce certain provisions of this Declaration. However, it is expressly understood that the City has no obligation to enforce the provisions of these covenants and restrictions. ARTICLE VI ARCHITECTURAL CONTROL The architectural control provisions set forth below are in addition to the architectural control provisions set forth in the Master Declaration. Section 6.1. Architectural Committee. No improvements or exterior changes to any improvements shall be made to any Lot (including, but not limited to, construction, installation or alteration of any building or landscaping) until the plans and specifications therefor showing the nature, design, kind, shape, height, width, color, materials and location have been submitted to and approved in writing by a committee of not less than three (3) nor more than five (5) persons ("Committee") unless the Committee has categorically exempted the particular improvements from its review. All members of the Committee may be appointed and replaced by Declarant until one (1) year following issuance by the California Department of Real Estate of the original Final Subdivision Public Report for Phase 1. Thereafter, a majority of the members of the Committee may be appointed and replaced by Declarant and a minority of the members of the Committee may be appointed or replaced by the Board until fifty-five (55) Lots Avian Area 28 3/25/97 -11- (being ninety percent (90%) of the Lots planned for Phase 1 and the Annexable Property) have been conveyed of record to Retail Purchasers or until five (5) years following issuance by the California Department of Real Estate of the original Final Subdivision Public Report for Phase 1, whichever shall first occur. Thereafter, all members of the Committee may be appointed or replaced by the Board. Committee members appointed by Declarant need not be Members of the Association. Committee members appointed by the Board shall be Members of the Association. Persons submitting proposals or plans and specifications to the Committee (each person is referred to as the "Applicant") must obtain a dated, written receipt for such plans and specifications and furnish the Committee with the address to which communications from the Committee to the Applicant are to be directed. Section 6.2. Committee Approval. The Committee shall approve proposals or plans and specifications submitted for its approval only if it deems that the construction, alteration, addition or other construction activity contemplated thereby in the locations indicated will not be detrimental to the appearance of the Project and surrounding real property as a whole, and that the appearance of any structure or other improvement will be in harmony with the surrounding structures and improvements. However, the Committee shall have the right from time to time to categorically exempt certain types of improvements from review by the Committee. Improvements to back yards are hereby declared to be categorically exempt from review by the Committee if the improvements do not extend more than five feet (5') above the ground elevation. The Committee will not have jurisdiction to require removal of any improve- ments which were exempt from Committee approval when installed. However, the Committee does have jurisdiction to approve or disapprove any changes to such improvements or to require landscaping to be trimmed and/or thinned. Section 6.3. Other Approvals. In addition to Committee approval, improvements to a Lot may require a building permit or other approval from the City and/or the California Coastal Commission. Section 6.4. Approved Conditions. The Committee may condition its approval of proposals or plans and specifications on such changes thereto as it deems appropriate, and may require submission of additional plans and specifications or other information prior to approving or disapproving material submitted. The Committee may adopt, amend or supple- ment the architectural guidelines (i) concerning design and materials standards, rules and guidelines for construction activities; (ii) setting forth procedures for the submission of plans for approval; (iii) requiring a reasonable fee ("Review Fee") payable to the Association for any costs involved to accompany each application for approval; and <iv) specifying additional factors which it will take into consideration in reviewing submissions. The Committee may require such detail in plans and specifications submitted for its review as it deems proper, including, without limitation, floor plans, site plans, drainage plans, elevation drawings and description or samples of plantings, exterior materials and colors. Until receipt by the Committee of all plans, specifications or other materials deemed necessary by the Committee, the Committee may postpone review of any plans submitted for approval. Section 6.5. Notification. Decisions of the Committee and the reasons for decisions shall be transmitted by the Committee to the Applicant at the address set forth in the application for approval within forty-five (45) days after receipt by the Committee of all materials required by the Committee. Any application submitted pursuant to this Article VI Aviara Area 28 3/25/97 -12- shall be deemed approved, unless the Committee's written disapproval or a request for additional information or materials is transmitted to the Applicant within forty-five {45} days after the date of receipt by the Committee of all required materials. Section 6.6. Waiver. The approval of the Committee of any proposals or plans and specifications or drawings for any work done or proposed or in connection with any other matter requiring the approval and consent of the Committee shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, drawings or matters whatever subsequently or additionally submitted for approval or consent. Section 6.7. No Liability. Neither the Committee, nor any members of the Committee, nor their duly authorized representatives, shall be liable to any Applicant or Lot Owner for any loss, damage or injury arising out of or in any way connected with the perfor- mance of the Committee's duties, unless due to the willful misconduct of the Committee. Section 6.8. Design Criteria. The Committee shall review and approve or disapprove all plans submitted to it for any proposed improvement, alteration, addition or other construction activity on the basis of satisfaction of the Committee with the grading plan, location of the improvements on the Lot, the finished ground elevation, the color scheme, finish, design, proportions, architecture, shape, height, style, appropriateness of proposed improvements, affect on adjoining Lots, the materials to be used, the kinds, pitch or type of roof proposed, the planting, landscaping, size, height or location of vegetation on a Lot, and on the basis of aesthetic considerations and the overall benefit or detriment to the Project and surrounding real property generally which would result from such improvement, alteration, addition or other construction activity. Although the Committee shall take into consideration the aesthetic aspects of the architectural designs, placement of buildings, landscaping, color, schemes, exterior finishes and materials, and similar features, 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, view impacts or conformance with building or other codes. The Committee approval of any particular construction activity shall expire and the plans and specifications therefor shall be resubmitted for Committee approval if substantial work pursuant to the approved plans and specifications is not commenced within six (6) months after the Committee's approval of such construction activity. All construction activities shall be performed as promptly and as diligently as possible and shall be completed within such reasonable period of time specified by the Committee. Section 6.9. Variances. The Committee may authorize variances from compliance with any of the architectural provisions of this Article VI, including, without limitation, restric- tions 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 Committee. The granting of a variance shall not operate to waive any of the terms and provisions of this Article VI for any purpose except as to the particular property and particular provision covered by the variance, nor shall it affect in any way the Owner's obligation to comply with all laws and regulations of any governmental authority affecting the use of his Lot, including, but not limited to, zoning AviaraAtea 28 3/25/97 -13- and building requirements of any governmental agency or entity having jurisdiction over the Lot. Section 6.10. Committee Guidelines. The Committee shall adopt rules for the conduct of its affairs and design guidelines for construction activities. The architectural guidelines of the Committee may provide for the pre-approval of certain specified types or categories of construction activities, provided that such pre-approved construction activities are implemented by the affected Owner in conformance with the standards for design, materials and other criteria established in the architectural guidelines for such pre-approved construction activities. The Committee may from time to time adopt, supplement or amend architectural guidelines to establish, expand, limit or otherwise modify the categories and criteria for any pre-approved construction activities. Section 6.11. Declarant Exemption: Declarant Rights. This Article VI shall not apply to, and the Committee shall have no authority or responsibility to review or approve any, improvements made by Declarant on any Lot or to the Common Area or Common Maintenance Area, Furthermore, nothing in this Declaration shall be understood or construed to: (a) Prevent Declarant, or its contractors or subcontractors, from doing on any of Phase 1 or the Annexable Property owned by it whatever they determine to be necessary or advisable in connection with the completion of said work, including, without limitation, the alteration of construction plans and designs as Declarant deems advisable in the course of development; (b) Prevent Declarant, or its representatives, from erecting, constructing and maintaining on any of Phase 1 or the Annexable Property owned or controlled by Declarant, or its contractors or subcontractors, such structures as may be reasonably necessary for the conduct of its or their business of completing said work and establishing Phase 1 or the Annexable Property as a residential community and dis- posing of the same by sale, lease or otherwise; (c) Prevent Declarant, or its contractors or subcontractors, from conducting on any land owned or controlled by Declarant, its or their business of developing, subdividing, grading and constructing dwelling units and other improvements on Phase 1 or the Annexable Property as a residential community and of disposing of dwelling units thereon by sale, lease or otherwise; (d) Prevent Declarant, its contractors or subcontractors, from maintaining such sign or signs on any land owned or controlled by any of them as may be necessary in connection with the sale, lease or other marketing of Lots or dwelling units on Phase 1 or the Annexable Property; (e) Prevent Declarant, at any time prior to acquisition of title to a Lot by a purchaser from Declarant, to establish on that Lot additional licenses, reservations and rights of way to itself, to utility companies, or to others as may from time to time be reasonably necessary to the proper development and disposal of Phase 1 or the Annexable Property; Avian Area 28 3/25/97 -14- (f) Prevent Declarant from using any Lot owned or leased by it for model home display purposes or for real estate sales purposes during the period of time in which new homes are being marketed in Phase 1 or the Annexable Property. (g) Limit or interfere with the right of Declarant to subdivide or resubdivide any portion of Phase 1 or the Annexable Property nor to complete improvements to the Common Maintenance Area or Common Area nor to any Lot owned by Declarant nor to construct additional improvements as Declarant deems advisable in the course of selling Phase 1 or the Annexable Property, including constructing and maintaining on Phase 1 or the Annexable Property such structures and displays as may be reasonably necessary for the conduct of its business of completing the work of development of Phase 1 or the Annexable Property and disposing of the same by sale, lease or otherwise; (h) Require Declarant to seek or obtain Committee approval of any improvement constructed or placed by Declarant on any portion of Phase 1 or the Annexable Property owned by Declarant; or (i) Limit the right of Declarant to non-exclusive use of the Common Area; provided, however, that such use shall not unreasonably interfere with the rights of enjoyment of the other Owners as provided herein. Anything herein stated to the contrary notwithstanding, Declarant in exercising its rights under this Article shall not unreasonably interfere with the use of the Common Area by any Owner, and Declarant shall not unreasonably interfere with the use by an Owner of his Lot. ARTICLE VII USE RESTRICTIONS The use restrictions set forth below are in addition to the use restrictions set forth in the Master Declaration. Any use restrictions set forth in the Master Declaration which are either not set forth herein or which are less restrictive than those set forth herein are hereby incorporated in this Declaration. Section 7.1. In General. Each Lot shall be held, used and enjoyed subject to the following limitations and restrictions, but also subject to the exemptions of Declarant set forth in this Declaration. Section 7.2. Residential Use. No Lot shall be used except for residential purposes; provided, however. Declarant shall have the right to use any Lots owned or leased by it for model homes, sales offices and similar uses until all Lots have been sold by Declarant. Nothing stated in this Section shall disallow a Lot from being used for such home businesses as may be allowed by applicable City zoning controls, permits and regulations provided that such uses are otherwise in compliance with the provisions of this Declaration. Avian Area 28 3/25/97 -15- Section 7.3. New Building Only. No building of any kind shall be moved from any other place onto any Lot, nor from one Lot to another Lot, without the prior written permission of the Board or the Committee. Approval of the City of Carlsbad and the California Coastal Commission may also be required. Section 7.4. Balconies. Decks and Fences. No balcony or deck shall be higher above the finished grade of the Lot than the highest dwelling floor level, except with the written approval of the Board or the Committee. No balcony or deck shall at any time be used for storage purposes and each shall at all times be kept in a neat and clean appearance and in good repair. No fence or wall or combination of a fence and wall (other than safety railings required by the City of Carlsbad or other governmental agencies) shall be higher than six (6) feet above ground where the fence or wall is to be placed. Section 7.5. No Second-Hand Materials. Painting Required. No secondhand materials shall be used in the construction of any building or other structure on any Lot without the prior written approval of the Board or the Committee. All buildings and fences which are of frame construction shall be painted or stained upon completion with the paint or stain coverage (including the number of coats) as provided in the approval of the plans therefor by the Board or the Committee. Section 7.6. Solar Panels. Antennae. Satellite Dishes. Rooftop panels installed for the collection of solar energy for domestic hot water shall be permitted on roofs at locations that maximize the southerly exposure for the collection of solar energy. Solar panels installed to serve recreational pools and spas shall be permitted but shall not be located on any section of the roof surface or Lot viewable from a public or private street, unless location elsewhere would significantly increase the cost of the system or significantly decrease its efficiency. There shall be no outside television or radio antennae, masts, satellite dishes, transmitter tower or facility, poles or flag poles (other than poles or flag poles installed and maintained by Declarant in connection with its sales program for the period set forth in the Section below entitled "Limitation of Restrictions on Declarant") constructed, installed or maintained in the Project for any purpose whatsoever without approval of the Committee. The Committee may impose conditions on the approval of the installation of television or radio antennae and satellite dishes, such as the requirement that the antenna or satellite dish not extend above the height of the lateral fence which encloses the yard; provided, however, the Committee shall not impose any requirement which precludes reception of an acceptable quality signal from, or unreasonably delays, prevents or unreasonably increases the costs of the installation, maintenance or use of, any of the following: (a) An antenna that is designed to receive direct broadcast satellite television service, including direct-to-home satellite services, that is one meter or less in diameter; (b) An antenna that is designed to receive video programming services via multipoint distribution services, including multichannel distribution services, instruc- tional television fixed services and local multipoint distribution services and that is one meter or less in diameter or diagonal measurement; or Aviara Area 28 3/25/97 -16- (c) An antenna that is designed to receive television broadcast signals. Neither Declarant nor the Board makes any representation that the City will allow satellite dish antennas to be installed. Nothing herein stated shall be deemed to forbid the installation and use of temporary power or telephone services or other improvements if incident to the construction of improvements. Section 7.7. Diligence in Construction Required. The work of constructing and erecting any building or other structure shall be prosecuted diligently from the commencement thereof, and the same shall be completed within a reasonable time in accordance with the requirements herein contained. No outbuilding shall be completed prior to the completion of the dwelling, except that temporary storage and convenience facilities may be erected for workmen engaged in building a dwelling on the Lot, but such temporary facilities shall be removed as soon as the dwelling is completed. Section 7.8. Drying Yards. No drying yards shall be permitted unless screened from all views exterior to the Lot on which the drying yard is located by fence, hedge or shrubbery, which screening and the adequacy thereof shall be subject to the approval of the Board or the Committee. Section 7.9. No Time-Share Projects. No Lot shall be divided into a time-share estate or time-share use as defined in California BUSINESS AND PROFESSIONS CODE Section 11003.5. Section 7.10. Signs. No sign, poster, billboard, advertising device or other display of any kind shall be displayed to the public view except (i) such signs as may be used by Declarant in connection with the development of the Project and the sale or leasing of Lots and (ii) one sign on each Lot advertising the Lot for sale or lease provided the sign is of customary and reasonable dimensions. Section 7.11. Animals. No animals, fowls, reptiles, insects or poultry shall be kept by any person within the Properties, except for domestic dogs, cats, birds, fish and other household pets if they do not, in the opinion of the Board, constitute a nuisance to any other Owner. Any dispute as to whether a particular pet constitutes a nuisance shall be arbitrated before the Board. No animals shall be kept, bred or raised within the Properties by any person for commercial purposes or in unreasonable quantities (more than three (3) dogs shall be deemed to be an unreasonable number of pets). All animals permitted herein to be kept shall be kept on a leash within the Properties when not within an enclosed area of a Lot. Each Owner shall be responsible for the removal of the waste from his or her pet. Section 7.12. No Commercial Activity: No Nuisance. Except as otherwise provided in this Declaration, no commercial business shall be conducted on any of the Lots, and nothing shall be done upon any Lot which may become an annoyance or nuisance to the neighborhood or other Lot Owners. The landing of golf balls on Lots adjacent to the Golf Course (the Golf Course is described in the Master Declaration) and damage or injury customarily associated with such activity or commonly arising out of the proximity of golf course play adjacent to Aviara Area 28 3/25/97 -17- residential areas (easements for which are provided in the Master Declaration) shall not be deemed or constitute a violation of this Section. Nothing herein stated shall disallow installation of a burglar alarm system. Any Owner who has an alarm system installed shall use reasonable care to prevent false alarm occurrences. Section 7.13. Drainage. No Owner of a Lot shall in any way interfere with the established drainage pattern over his or her Lot from adjoining or other Lots, unless adequate provisions have been made for proper drainage. "Established drainage" is defined as the drainage which existed at the time the final grading of the Lot was originally completed. "Established drainage" refers to both surface drainage and subsurface drainage, if any. Any Owner who changes the drainage of his or her Lot shall be responsible for any damages which might result to the property of such Owner, the property of the Association or to the property of any third party. Each Owner will permit free access by other Owners of adjacent or adjoining Lots to slopes or drainageways located on his or her Lot which affect said adjacent or adjoining Lots, when such access is essential for the maintenance of permanent stabilization of slopes or maintenance of the drainage system or facilities for the protection and use of property other than the Lot on which the slope or drainageway is located. Each Owner shall be responsible to maintain any concrete terrace drain which is located on such Owner's Lot unless the same lies within Common Maintenance Area. Section 7.14. Slope Control. Use and Maintenance. Each Lot Owner will keep, maintain, water, plant and replant all slope banks located on such Owner's Lot (unless such slopes are located within the Common Maintenance Area, if any), so as to prevent erosion and to create an attractive appearance. No structure, planting or other material shall be placed or permitted to remain or other activities undertaken on any of said 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 established drainage patterns and systems, or obstruct or retard the flow of water through drainage channels or established drainage patterns and systems. Section 7.15. No Hazardous Activities. No activities shall be conducted on any portion of the Project and no improvements shall be constructed on any Lot which are or might be unsafe or hazardous to any person or property. Reasonable and customary construction activities by Declarant or any Owner shall not be deemed to constitute hazardous activities. Section 7.16. Unsightly Articles. No unsightly articles shall be permitted to remain on any Lot so as to be visible from any other portion of the Project. Without limiting the generality of the foregoing, all refuse, garbage and trash shall be kept from public view at all times. Trash for pick up shall be placed in covered, sanitary containers of good condition and such container shall be placed in public view no earlier than the evening before pick up and shall be removed from public view on the day of pick up. No clotheslines shall be installed on any Lot in such a manner as to be within public view. No clothing or household fabrics shall be hung, dried or aired on any Lot, and no lumber, grass, shrub or tree clipping or plant waste, metals, bulk materials or scrap or refuse or trash shall be kept, stored or allowed to accumulate Aviara Area 28 3/25/97 -18- on any Lot, except within an enclosed structure or otherwise appropriately screened from public view. Section 7.17. No Temporary Structures. No tent, shack or other temporary building, improvement or structure shall be placed upon any portion of the Project except with the approval of the Committee. This Section shall not apply to temporary structures which are reasonable and customary to facilitate construction activities on any Lot. Section 7.18. Garages: Parking Spaces: Vehicular Restrictions. Except for model homes and sales or leasing offices used by Declarant, no Owner shall convert his or her garage to any use which prevents its use for parking the number of vehicles used by the Owner. No dismantled or wrecked vehicle or equipment shall be parked, stored or deposited in the Project within public view and no vehicle shall be repaired in the Project within public view. No noisy or smoky vehicles or off-road unlicensed vehicles shall be operated within the Project. Section 7.19. No Recreational Vehicles. No boat, camper, trailer, motorhome or other type of recreational vehicle shall be parked on any Lot, private street or other portion of the Properties unless such recreational vehicle is completely screened from view. Section 7.20. Weeds. Rubbish. Sanitary Containers. Etc. No weeds, rubbish, debris, objects or material of any kind shall be placed or permitted to accumulate upon any Lot which render such portion unsanitary, unsightly, offensive or detrimental to any other Lot in the vicinity thereof or its occupants. Trash, garbage, rubbish and other waste shall be kept only in sanitary containers. Section 7.21. Plants. No plants or seeds .infected with noxious insects or plant disease shall be brought upon, grown or maintained upon any Lot. Section 7.22. Landscaping. All landscaping of every kind and character, including shrubs, trees, grass and other plantings, within any Lot shall be neatly trimmed, properly cultivated and continuously maintained by the Owner thereof in a neat and orderly condition and in a manner to enhance its appearance. The Committee shall have the right to require any Owner to remove, trim, top or prune any shrub, tree, bush, plant or hedge which the Board reasonably believes impedes the view of any other Lot Owner. No Owner shall remove, damage or otherwise change any landscaping within the Common Maintenance Area. Section 7.23. Grading. No Lot shall be regraded by any Owner in any manner which increases water runoff on any other Lot, and no such grading shall be permitted without approval by the City of Carlsbad. Section 7.24. Owners Responsible for Damage. Should any Owner or such Owner's employees, agents or contractors cause any damage to sidewalks, curbs or other City property or rights of way, such Owner shall immediately and fully repair such damage at the Owner's expense. In the event such damage is repaired by the City or Declarant, the Owner shall immediately reimburse such party for the full costs of repair. Avian Area 28 3/25/97 -19- Section 7.25. Construction and Sales Activities. The development, construction, marketing and sales activities of each Declarant are exempt from the covenants, restrictions and limitations set forth in this Article. None of the covenants, restrictions and limitations set forth in this Article or elsewhere in this Declaration shall be applied to the development, construction, marketing or sales activities of Declarant or construed in such a manner as to prevent or limit development, construction, marketing or sales activities by Declarant. Section 7.26. Owners May Not Change Common Area. No Owner shall have any right whatsoever to make any change or improvement to the Common Area or Common Maintenance Area and no Owner shall cause any damage to the Common Area or Common Maintenance Area. Each Owner shall be liable to the Association and the other Owners for any damage to any of the Common Area or Common Maintenance Area that may be sustained by reason of the negligence of that Owner, that Owner's family members, contract purchasers, tenants, guests, or invitees. Section 7.27. Water and Sewer Systems. No individual water supply system, water softener system or sewage disposal system shall be permitted on Lot unless the system is designed, located, constructed and equipped in accordance with the requirements, standards and recommendations of any applicable water district, the City and any applicable governmental health authority having jurisdiction. Section 7.28. Site Distance Corridors. The following Lots have sight distance corridors which restrict the height of landscaping and structures to 30" above the street: Lots 1, 7, 35, 48 and 55. No structure, fence, wall, tree, shrub, sign or other object over thirty inches (30") above the street level may be placed or permitted to encroach within the area identified as a sight distance corridor in accordance with Section 8.B.3 of the City Standard Public Street- Design Criteria. The Owner of each affected Lot shall at all times comply with these require- ments. Section 7.29. Post-Tensioned Slabs. The residences on some or all of the Lots may have been constructed with post-tensioned concrete slabs ("System"). The System involves placing steel cables under high tension in the concrete slab located beneath the residence. Each Owner shall be responsible for determining whether the residence on his Lot has been constructed with a System. Any attempt by an Owner or other person to alter or pierce the foundation (e.g., saw cutting or drilling) could damage the integrity of the System and/or cause serious injury or damage to persons and property. No Owner shall cut into or otherwise disturb the System upon which the residence on his Lot is constructed. The Owner of each Lot on which the residence has been constructed with a System agrees that neither Declarant nor any contractor of Declarant shall be responsible for any damage or injury resulting from or arising in connection with the alteration or piercing by the Owner or any employee, agent, family member, representative or other person of the slab or the foundation of the residence on the Lot. Each Owner shall hold Declarant harmless from and indemnify Declarant against all claims, demands, losses, costs (including attorney's fees), obligations and liabilities arising out of or in connection with the failure of the Owner to comply with the provisions of this Section 7.29. Section 7.30. Retaining Walls. City Planning Commission Resolution No. 3410 (the conditions of approval for the Tentative Map for CT 90-31) sets forth a restriction against retaining walls (except for a retaining wall on Lot 7) without certain City approvals. Aviara Area 28 3/25/97 -20- Section 7.31. Open Space Easements. Certain portions of the Project are subject to open space easements which restrict development. Each Owner shall at all times comply with such restrictions. ARTICLE VIII INSURANCE AND CONDEMNATION Section 8.1. Insurance. (a) The Association shall procure and keep in force general liability insur- ance in the name of the Association insuring against any liability for personal injury or property damage resulting from any occurrence in or about the Common Area or Common Maintenance Area in an amount not less than $2 Million per occurrence. The liability policy shall name as additionally insured persons which the Master Declaration requires be so named. (b) The Association shall procure and keep in insurance, in an amount not less than $500,000 per occurrence, covering the individual liability of officers and directors of the Association for negligent acts or omissions of those persons acting in their capacity as officers and directors. (c) The Association shall maintain a fidelity bond in an amount equal to the amount of funds held by the Association during the term of the bond but not less than one-fourth (1/4) of the regular assessments, plus reserves, naming the Association as obligee and insuring against loss by reason of the acts of the Board, officers and employees of the Association, and any management agent and its employees, whether or not such persons are compensated for their services. (d) Copies of all insurance policies (or certificates) showing the premiums to have been paid shall be retained by the 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 Association, and (ii) contain a waiver of subrogation by the insurer(s) against the Association, Board and Owners. (e) Anything contained herein to the contrary notwithstanding, the Association shall maintain such insurance coverage as may be required by the Federal National Mortgage Association ("FNMA") or the Federal Home Loan Mortgage Corporation ("FHLMC") so long as FNMA or FHLMC, respectively, holds a mortgage on or owns any Lot. (f) Section 1365.7 of the California CIVIL CODE provides for a partial limitation on the liability of volunteer officers and directors of the 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 Association in specified amounts. The Association shall Aviara Area 28 3/25/97 -21- maintain general liability insurance and officers' and directors' liability insurance in amounts which satisfy the requirements of the CODE to limit the liability of volunteer officers and directors of the Association. (g) In the event any insurance policy deductible amount relating to an Owner's property loss is charged to the Association, the Owner shall reimburse the Association upon written demand for the amount charged to the Association. Section 8.2. Condemnation. In the event the Common Area 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 Association. ARTICLE iX MAINTENANCE RESPONSIBILITIES: Section 9.1. Parties Responsible For Maintenance of Common Area. The following parties shall be responsible to maintain the Common Area and Common Maintenance Area: (a) Initially Declarant shall be solely responsible to maintain the Common Area. (b) Unless the deed of conveyance or a maintenance agreement between Declarant and the Association states otherwise, the Association shall become obligated to maintain portions of the Common Area within a Phase upon the first close of escrow for the sale of a Lot within the Phase to a Retail Purchaser. The Common Area within a Phase shall refer to those portions of the Common Area which identified as being within such Phase by the Declaration of Annexation or the deed of conveyance and such portions may consist of fee title or easements. (c) Unless a Notice of Declaration of Annexation or a maintenance agreement between Declarant and the Association states otherwise, the Association shall be obligated to maintain all the Common Maintenance Area within a Phase upon the first close of escrow for the sale of a Lot within the Phase to a Retail Purchaser. Declarant and the Association may enter into one or more maintenance agreements in form and content acceptable to the California Department of Real Estate whereby Common Area or Common Maintenance Area maintenance or the costs of maintenance of the Common Area is shared between Declarant and the Association for the term set forth in such agreement(s). It is not intended that the Association will be obligated to share in any such costs until conveyance of the first Lot within a Phase to a Retail Purchaser. Section 9.2. Association Maintenance. The Association shall maintain and provide for the maintenance of all the Common Area and Common Maintenance Area, in good repair and appearance as set forth in the Declaration and in accordance with the requirements of the City. All concrete terrace drains located within the Common Maintenance Area shall be Avars Area 28 3/25/97 -22- maintained by the Association. All private streets, sidewalks, street lights and other improvements (other than any improvements which are publicly maintained) located within the Common Area or Common Maintenance Area shall be kept in good maintenance and repair by the Association. Any damage caused to a Lot by entry of the Association shall be repaired by the Association at its expense. The Association shall not relinquish its obligation to maintain the Common Area or Common Maintenance Area without the prior consent of the Planning Commission or City Council of the City. Section 9.3. Owner Maintenance. Each Owner shall keep and maintain in good repair and appearance all portions of his or her Lot and improvements thereon (except for any portion the maintenance of which is the responsibility of the Association or a public maintenance assessment district). The improvements to be so maintained by each Owner include, but are not limited to, all portions of the residence, garage, the garage opener, lights on the residence, the landscaping and any fence or wall which is located on the Lot. Fences or walls installed by Declarant between Lots or between Lots and Common Area or Common Maintenance Area shall be deemed to establish the boundary line between such Lots or Lots and Common Area or Common Maintenance Area. Each Owner shall be obligated to maintain any fence or wall (including the structure and both the interior and exterior surfaces) which separates the Owner's Lot from Common Area or Common Maintenance Area, unless an easement for such maintenance is conveyed to the Association (Declarant does not currently intend to that the Association shall be responsible for the maintenance of fences or walls except for fences or walls, if any, which are located within the Common Area.) Each Owner shall be responsible to maintain the interior surface of any fence or wall which separates the Owner's Lot from another Lot and both adjoining Owners shall be responsible to share equally in the costs to repair or replace any such fence or wall which separates their Lots. However, an Owner shall not be responsible for the costs to repair or replace a fence which is damaged by the other Owner. Each Owner of a Lot shall water, weed, maintain and care for the landscaping located on his or her Lot (other than any portion which is within the Common Maintenance Area or a public maintenance assessment district) so that the same presents a neat and attrac- tive appearance. No Owner shall interfere with or damage the Common Maintenance Area or improve or alter the Common Maintenance Area or interfere with or impede Declarant, the Association or a public maintenance assessment district in connection with the maintenance of the Common Area or Common Maintenance Area. Each Owner shall also be responsible to maintain any landscaping (and irrigation improvements, if any) which are located in the area between the edge of the sidewalk or curb of the private street which adjoins the Owner's Lot and the Lot boundary. Declarant hereby reserves an easement over the Common Area for such purposes. No Owner shall interfere with or damage any other improvements in the area between the Owner's Lot and the sidewalk or curb such as street lights, transformers, CATV hookups, sewer mains, or storm drains. Section 9.4. Master Association. Perimeter walls identified on Exhibit "B " attached hereto are subject to maintenance by AVIARA MASTER ASSOCIATION, a California nonprofit mutual benefit corporation (the "Master Association") and an easement for such maintenance Avian Area 28 3/25/97 -23- is hereby reserved in favor of the Master Association. The Owners of the affected Lots shall be responsible to maintain the interior surfaces of such walls. Section 9.5. Associatipn's Right to Repair Neglected Lots. In the event that any Owner shall in the Board's opinion permit any property which is the responsibility of such Owner to maintain to fall into a dangerous, unsafe, unsightly or unattractive condition as deter- mined by the Board, then the Board shall have the right to demand that such condition be remedied. Should the condition not be remedied within fifteen (15) days, the Board shall have the right, but not the obligation, to correct the condition, and to enter upon the portion of the Project which has fallen into such condition for the purpose of doing so. The Owner shall promptly reimburse the Association for the cost of such corrective action, including, but not limited to, the Association's court costs and reasonable attorney's fees should the Board determine it is in its best interests to obtain a court order allowing such entrance by the Board's representatives. No entry inside a residence may be made without the consent of the Owner. Section 9.6. Maintenance By City. If the Association fails to maintain all or any portion of the Common Area or Common Maintenance Area in accordance with this Article, the City shall be entitled to give written notice to the Association, setting forth with particularity the work of maintenance or repair which the City finds to be required and requesting that the same be carried out by the Association within a period of thirty (30) days after the Association's receipt of such notice (or such longer time period as the City may specify in such notice). If the Association fails to carry out such maintenance or repair within the period specified above, the City shall be entitled to cause such work to be completed and shall be entitled to reimbursement of the costs incurred in connection therewith from the Owners, as provided in Section 4.13. ARTICLE X ANNEXATION Section 10.1. By Association. Additional residential property, Common Area and Common Maintenance Area may be annexed to the Project and to the Declaration upon the vote or written assent of two-thirds (2/3) of the voting power of Members of the Association, excluding the vote of Declarant. Upon approval by Members of the Association, the owner of the property wishing it to be annexed may file of record a Declaration of Annexation which shall extend the provisions of this Declaration to the property being annexed. Section 10.2. By Declarant. (a) Additional land within the Annexable Property may be annexed to the Project as Lots, Common Area and Common Maintenance Area and to the jurisdiction of the Association by the owner of the property without the consent of Members of the Association or the Board at any time within ten (10) years of the date that escrow closes to convey a Lot to a Retail Purchaser in Phase 1 or any subsequent Phase which is annexed hereto. Annexation shall be made by Declaration of Annexation executed by the owner of the land being annexed. The Declaration of Annexation may be revoked or amended at any time before the first close of sale of a Lot in the annexed Avian Ana 28 3/25/97 -24- property and may contain additional or different restrictions applicable to the annexed property. The obligation of Lot Owners to pay dues to the Association and the right of such Lot Owners to exercise voting rights in the Association in such annexed property shall not commence until the first day of the month following close of the first sale of a Lot by Declarant in that particular Phase of development. (b) Any Phase may be deannexed by Declarant signing and recording with the County Recorder of San Diego County a Notice of Deannexation which describes the land to be de-annexed provided that no Lot within the Phase has been conveyed to an Owner (other than between Declarants or to a successive Declarant). ARTICLE XI RIGHTS OF LENDERS Section 11.1. Payments of Taxes or Premiums by First Mortgagees. First Mortgagees may, jointly or severally, pay taxes or other charges which are in default and which may or have become a charge against the Common Area, 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 new casualty insurance coverage on the lapse of a policy for the Common Area; first Mortgagees making such payments shall be owed immediate reimbursement from the 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 Association. Section 11.2. Priority of Lien of Mortgage. 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. Section 11.3. 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 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. Section 11.4. Approval of First Mortgagees. Except as provided by statute in case of condemnation or substantial loss to the Lots or Common Area, 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 Association (excluding the vote of Declarant) have given their prior written approval, the Association shall not: (a) By act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Area. The granting of easements for public utilities or for Avian Area 28 3/25/97 -25- other public purposes shall not be deemed a transfer within the meaning of this Subsection. (b) Change the method of determining the obligations, assessments, dues or other charges which may be levied against an Owner. (c) By act or omission, change, waive or abandon any scheme of regula- tions, or enforcement thereof, pertaining to the architectural design or exterior appearance of residences, the exterior maintenance of residences, the maintenance of Common Area walks or common fences and driveways, or the upkeep of lawns and plantings in the Project. (d) Fail to maintain fire and extended coverage insurance on the Common Area on a current replacement cost basis in an amount not less than one hundred percent (100%) of the insurable value, based on current replacement cost. (e> Use hazard insurance proceeds for losses to any portion of the Common Area for other than the repair, replacement or reconstruction of the Common Area. Section 11.5. Restoration of Common Area. Any restoration or repair of the Common Area 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 Lots which have at least fifty-one percent (51 %) of the votes of Lots subject to Mortgage holders. Section 11.6. Professional Management. When professional management has been previously required by a first Mortgage holder, a decision to establish self-management by the Association shall require the consent of at least sixty-seven percent (67%) of the voting power of Members of the Association and the approval of holders of first Mortgages on Lots the Owners of which have at least fifty-one percent (51 %) of the votes of Lots encumbered by Mortgages. Section 11.7. Notice to Mortgagees. Upon written request to the Association identifying the name and address of the holder and the Lot number or address, any first Mortgage holder will be entitled to timely written notice of: (a) Any condemnation loss or any casualty loss which affects a material portion of the Project or any Lot on which there is a first Mortgage held by the Mortgage holder. (b) 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. (c) Any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association. Aviara Area 28 3/25/97 -26- (d) Any proposed action which would require the consent of a specified percentage of Mortgage holders. Section 11.8. Documents to be Available. The Association shall make available to Owners and Mortgagees, and holders, insurers or guarantors of any first Mortgage, current copies of the Declaration, the Bylaws, other rules concerning the Project and the books, records and financial statements of the Association. "Available" means available for inspection, upon request, during normal business hours or under other reasonable circum- stances. The holders of first Mortgages encumbering fifty-one percent (51 %) or more of the Lots subject to a Mortgage shall be entitled to have an audited 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 time following the request. In the event fifty (50) or more Lots have been made subject to this Declaration, then the Association shall make available to the holder, insurer or guarantor of any first Mortgage, an audited financial statement on submission of a written request for the same. The audited statement must be made available within one hundred and twenty (120) days of the Association's fiscal year-end. In the event fewer than fifty (50) Lots have been made subject to this Declara- tion, then a first Mortgagee shall be entitled to have an audited financial statement provided the same is prepared at the Mortgagee's expense. Section 11.9. 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 XII GENERAL PROVISIONS Section 12.1. Enforcement. The Association, Declarant and any Owner shall have the right to enforce by any proceedings at law or in equity, all covenants, conditions, restrictions and reservations imposed by the provisions of the Declaration and rules and regulations adopted pursuant to this Declaration. Each Owner shall have a right of action against the Association for any failure of the Association to comply with the provisions of the Declaration or of the Bylaws or Articles. Failure by the Association, Declarant or any Owner to enforce any covenant, condition, restriction or reservation in the Declaration shall not be deemed a waiver of the right to do so thereafter. The City shall have the right, but not the obligation, to enforce the provisions of the Declaration and for such purposes shall be deemed a party hereto. In the event the City files a legal action to enforce the provisions of the Declaration and it is the prevailing party in the litigation, it shall be entitled to recover costs of suit and attorney's fees incurred in the litigation. Section 12.2. Severability. Should any provision in the Declaration be void or become invalid or unenforceable in law or equity by judgment or court order, the remaining provisions shall be and remain in full force and effect. Avian Area 28 3/25/97 -27- Section 12.3. Amendments. Except as may otherwise be stated in the Declaration, during the period of time prior to conversion of the Class B membership in the 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 Members of the Association, any which amendment shall become effective upon recording with the Office of the County Recorder of San Diego County, California. After conversion of the Class B membership in the 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 Association, and (b) at least sixty-seven percent (67%) of the voting power of Members of the 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 Mortgagees of first Mortgages encumbering fifty-one percent (51%) or more of the Lots within the Project which are subject to a Mortgage. "Material amendment" shall mean, for purposes of this Section 12.3, any amend- ments to provisions of this Declaration which would be likely to diminish the value of a Lot or reduce or eliminate any lender's right set forth in this Declaration. An amendment to the Declaration shall not be considered material if it is for the purpose of correcting technical errors or for clarification or for making a change which is of no practical significance. A first Mortgagee who receives a written request delivered by certified or registered mail, return receipt requested, to approve amendments who does not deliver or mail to the requesting party a negative response within thirty (30) days, shall be deemed to have approved such request. Notwithstanding the above provisions, (i) the percentage of the voting power necessary to amend a specific clause or provision in the Declaration shall not be less than the percentage of affirmative votes necessary for action to be taken under that clause or provision; and (ii) any amendment to this Declaration shall require the consent of the City Attorney of the City if such amendment would reduce or eliminate the standards of maintenance and repair of Lots, Common Area or Common Maintenance Area or reduce or eliminate any right of the City set forth in this Declaration. The percentage of membership votes or written consents required to amend the Declaration may be reduced under certain circumstances by Court Order obtained pursuant to California CIVIL CODE §1356. In addition, no amendment to or revocation of the provisions of Section 2.2, 4.9 (to the extent of the City's lien rights thereunder), 4.13, 9.2 or 9.6 shall be made without the prior written consent of the City. Section 12.4. Extension of Declaration. Each and all of the covenants, conditions and restrictions shall run with and bind the Project for a term of thirty (30) years from the date the Declaration is recorded, after which date they shall automatically be extended for successive periods of ten (10) years, unless the Owners of two-thirds (2/3) of the Lots subject to the Declaration have executed and recorded at any time within six (6) months prior to the end of the thirty (30) year period, or within six (6) months prior to the end of any such ten (10) year period, in the manner required for a conveyance of real property, a written instrument in which Aviara Area 28 3/25/97 -28- it is agreed that the restrictions shall terminate at the end of the thirty (30) year period or at the end of any ten (10) year period. Section 12.5. Encroachment Easements. The following easements are hereby reserved by Declarant, subject to all items of record, including, but not limited to, the general utility easements of record: (a) It is intended that, unless Declarant decides to relocate the same, each fence or wall installed by Declarant with the intention of separating Lots from one another, or separating a Lot from Common Area, or separating a Lot from Common Maintenance Area shall establish the usable boundaries between the affected Lots, the Lots and Common Area and the Lots and Common Maintenance Area, respectively, regardless of whether the fence or wall lies exactly on the boundary line. An easement is hereby reserved for each such fence or wall to be repaired and replaced by the party(ies) obligated to maintain the same, in the location where such fence or wall was so installed by Declarant. Declarant shall have the right, but not the obligation, to relocate any such fence or wall to the applicable boundary line during the period of time that Declarant has the right to annex Lots to this Declaration. The portions of land lying inside a fence or wall may be used by the adjoining Owner for yard purposes, subject to any open space easements or other items of record. The portions of land lying outside a fence or wall which adjoin Common Area or Common Maintenance Area may be used by the Association for such purposes. (b) In the event any improvement to a Lot encroaches upon the Common Area or Common Maintenance Area or any Common Area or Common Maintenance Area improvement encroaches upon any Lot as a result of the construction, reconstruction, repair, shifting, settlement or movement of any portion thereof, an easement for the encroachment and for its maintenance is hereby reserved for so long as the encroachment exists; provided, however, in no event shall an easement for encroachment be created in favor of an Owner or the Association if the encroachment occurred due to the willful misconduct of the Owner or the Association. In the event a structure on a Lot is partially or totally destroyed and then rebuilt or repaired, the minor encroachments over adjoining Common Area and Common Maintenance Area shall be permitted and there shall be easements for maintenance of the encroachments so long as they shall exist. "Improvement" as used in this subsection does not include a fence or wall (fences and walls are the subject of Subsection (a) of this Section). (c) An easement is hereby reserved in favor of each Lot over adjoining Lots for the purpose of accommodating encroachments due to design, construction, engi- neering errors, errors in construction, settlement or shifting of the building, roof over- hangs, architectural or other appendants and drainage of water from roofs. There shall be easements for the maintenance of encroachments so long as they shall exist; provided, however, that no easement is created in favor of an Owner if the encroach- ment occurred due to the willful misconduct of the Owner. In the event a structure on any Lot is partially or totally destroyed and then rebuilt or repaired, the minor encroach- ments over adjoining Lots shall be permitted and there shall be easements for maintenance of encroachments so long as they shall exist. Avars Area 28 3/25/97 -29- Section 12.6. Special Responsibilities of Association. In the event improvements to be installed by Declarant to the Common Area have not been completed prior to the issuance by the California Department of Real Estate of a Final Subdivision Public Report covering a Phase of the Project, and in the further event the Association is the obligee under a bond to secure the obligation of Declarant to complete the improvements, then if the improvements have not been completed and a Notice of Completion filed within sixty (60) days after the completion date specified in the Planned Construction Statement appended to the bond, the Board shall consider and vote upon the question of whether or not to bring action to enforce the obligations under the bond. If the Association has given an extension in writing for the completion of any improvement, then the Board shall consider and vote on the question if the improvements have not been completed and a Notice of Completion filed within thirty (30) days after the expiration of the extension period. In the event the Board determines not to take action to enforce the obligations secured by the bond, or does not vote on the question as above provided, then, in either event, upon petition signed by Members representing five percent (5%) or more of the voting power of the Association (excluding the voting power of Declarant), the Board shall call a special meeting of the Members of the Association to consider the question of overriding the decision of the Board or of requiring the Board to take action on the question of enforcing the obligations secured by the bond. The meeting of Members shall be held not less than thirty-five (35) days nor more than forty-five (45) days following receipt of the petition. At the meeting, a vote of a majority of the voting power of Members of the Association, excluding the vote of Declarant, to take action to enforce the obligations under the bond shall be deemed to be the decision of the Association, and the Board shall thereafter implement the decision by initiating and pursuing appropriate action in the name of the Association. Section 12.7. litigation. In the event of litigation arising out of or in connection with the Declaration, the prevailing party shall be entitled to receive costs of suit and such sum for attorney's fees as the Court deems reasonable. Section 12.8. Documents to be Provided to Prospective Purchaser. An Owner, other than Declarant, shall, as soon as practicable before transfer of title to the Owner's Lot, provide to the prospective purchaser the following: (a) A copy of the Articles, Bylaws, this Declaration and the rules and regulations adopted by the Board. (b) A copy of the most recent financial statements of the Association. (c) A true statement in writing from an authorized representative of the Association as to the amount of the Association's current regular and special assess- ments and fees as well as any assessments levied upon the Lot which are unpaid as of the date of the statement. The statement shall also include true information on late charges, interest and costs of collection which, as of the date of the statement, are or may be made a lien upon the Lot. (d) A statement setting forth any change in the Association's current regular and special assessments and fees which have been approved by the Board but have not become due and payable as of the date this statement is provided. Avian Area 28 3/25/97 -30- Section 12.9. Limitation of Restrictions on Declarant. Declarant is undertaking the work of construction of residential dwellings and incidental improvements upon Phase 1 and the Annexable Property. The completion of that work, and the sale, rental and other disposal of dwellings is essential to the establishment and welfare of Phase 1 and the Annexable Property as a residential community. In order that the work may be completed and Phase 1 and the Annexable Property be established as a fully occupied residential community as rapidly as possible, nothing in this Declaration shall be understood or construed to: (a) Prevent Declarant, its contractors or subcontractors from doing on the Common Area, Common Maintenance Area or any Lot whatever is reasonably necessary or advisable in connection with the completion of the work, including access over Phase 1 or the Annexable Property; or (b) Prevent Declarant or its representatives from erecting, constructing and maintaining on any part or parts of Phase 1 or the Annexable Property such structures as may be reasonable and necessary for the conduct of its business of completing the work and establishing Phase 1 and the Annexable Property as a residential community and transferring Phase 1 and the Annexable Property in parcels by sale, lease or other- wise; or (c) Prevent Declarant from conducting on any part of Phase 1 or the Annexable Property its business of completing the work and of establishing a plan of ownership and of transferring Phase 1 or the Annexable Property by sale, lease or otherwise; or (d) Prevent Declarant from maintaining such signs, poles or flags on any of Phase 1 or the Annexable Property as may be necessary for the sale, lease or disposition thereof; provided, however, that the maintenance of any sign, pole or flag shall not unreasonably interfere with the use by any Owner of his or her Lot or the Common Area. The rights of Declarant provided in Subsections (a) through (d) above may be exercised during the period of time commencing when the Lots are first sold or offered for sale to the public and ending when all the Lots are sold and conveyed by Declarant to separate Owners, or seven (7) years following the date of conveyance of the first Lot from Declarant to a Retail Purchaser, whichever shall first occur. So long as Declarant, its successors and assigns, owns one or more of the Lots described herein, Declarant, its successors and assigns, shall be subject to the provisions of this Declaration. Declarant, in exercising its rights under this Section shall not unreasonably interfere with the use of the Common Area by any Owner. Section 12.10. Easement to Inspect and Test. Declarant reserves easements to enter any Lot, including the interior of the residence and the yard, to inspect those areas and to conduct destructive testing referred to in California CIVIL CODE § 1375(d). However, Declarant shall notify the Owner of the Lot of at least three alternative dates and times when such inspection can take place (the earliest of which shall not be less than ten (10) days after the notification is given) and Declarant shall give the Owner the opportunity to specify which date and time is acceptable to the Owner. Should the Owner not respond affirmatively with respect Avian Area 28 3/25/97 -31- to one of the dates and times within five (5) days, then Declarant may decide which of the dates and times the inspection and testing shall take place and so notify the Owner. Alternatively, Declarant may seek a judicial order allowing such inspection and testing to take place. Declarant shall be entitled to its reasonably incurred attorney's fees and be deemed the "prevailing party" should such a court order be sought and obtained. Declarant shall be obligated to fully repair any damage caused by any such destructive testing. Section 12.11. Master Declaration. All of the real property subject to this Declaration including, without limitation, each unit, dwelling or lot located therein together with the owners of said real property are also subject to the covenants, conditions, restrictions, easements, assessments and the common plan for the phased development of the "Overall Property" as more particularly described and defined in that certain Third Amended And Restated Master Declaration of Covenants, Conditions and Restrictions For Aviara, recorded September 16, 1991, Document No. 1991-0475307, Official Records of San Diego County, California, as the same may be amended from time to time pursuant to the provisions thereof. Reference is hereby made to said Master Declaration (the "Master Declaration") and to the terms and provisions thereof including, without limitation, the covenants to obtain and maintain policies of insurance, the naming of additional insureds in said policies as required by the Master Declaration, easements for maintenance of Master Common Area, assessments levied by the Aviara Master Association and to the rights and restrictions reserved by or imposed upon the Overall Property and the real property subject to the Master Declaration by the City of Carlsbad and the California Coastal Commission. In the event of any inconsistency between the terms and provisions of this Declaration and the terms and provisions of the Master Declaration, the Master Declaration shall control. IN WITNESS WHEREOF, the undersigned, being Declarant herein, has executed this instrument as of the date first hereinabove written. BROOKFIELD CARLSBAD INC., a California corporation By_ Title By. Title Aviara Area 28 3/25/97 -32- STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On , 19 , before me, _ Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), 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 Avian Ana 28 3/25/97 -33- EXHIBIT "A" Phase 1 Lots 8 through 11 and 22 through 30 of CARLSBAD TRACT NO. 90-31 AVIARA PLANNING AREA 28 UNIT 1 according to Map thereof No. 13368, filed with the County Recorder of San Diego County, California on November 8, 1996. Annexable Property Lots 1 through 7, 12 through 21 and 31, 32 and 34 of CARLSBAD TRACT NO. 90-31 AVIARA PLANNING AREA 28 UNIT 1 according to Map thereof No. 13368, filed with the County Recorder of San Diego County, California on November 8, 1996; and Lots 35 through 63 and 65 of CARLSBAD TRACT NO. 90-31 AVIARA PLANNING AREA 28 UNIT 2 according to Map thereof No. 13369, filed with the County Recorder of San Diego County, California on November 8, 1996. Aviara Area 28 3/25/97 EXHIBIT "B1 Perimeter Wails Subject To Master Association Maintenance Avian Area 28 3/25/97 SUBORDINATION AGREEMENT , a , being the beneficiary under deed of trust recorded as Document No. , with the Office of the County Recorder of San Diego County, California, hereby declares that the lien and charge of the deed of trust are and shall be subordinate to the Declaration of Restrictions to which this Subordination Agreement is attached. By. Title By. Title STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On , 19 , before me, _ Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), 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 Avian Area 28 3/25/97