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
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11
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11
12
12
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13
13
13
13
14
14
15
15
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16
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17
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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
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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.
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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.
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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
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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
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(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
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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
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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
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(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
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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
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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;
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(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.
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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
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(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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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.
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(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.
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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
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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.
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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.
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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
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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
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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
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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.
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EXHIBIT "B1
Perimeter Wails Subject To Master Association Maintenance
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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
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