HomeMy WebLinkAboutCP 02-02; McMillian Condos; Condo Permit (CP)Recording Requested By:
Robert L. McMillian & Sharon L. McMillian
5157 Carlsbad Blvd.
Carlsbad, CA 92008
When Recorded Return To:
Robert L. McMillian & Sharon L. McMillian
5157 Carlsbad Blvd.
Carlsbad, CA 92008
DECLARATION OF RESTRICTIONS
FOR
TERRAMAR CONDOMINIUM HOMEOWNERS ASSOCIATION
SEP 1 6 2002
ENGINEERING
DEPARTMENT
TABLE OF CONTENTS
RECITALS
ARTICLE I: DEFINITIONS
1.1 "ARTICLES" 2
1.2 "ASSOCIATION" 2
1.3 "BOARD" 2
1.4 "BYLAWS" 2
1.5 "COMMON AREA" 2
1.6 "COMMON EXPENSES" 2
1.7 "CONDOMINIUM" 3
1.8 "CONDOMINIUM BUILDING," CONDOMINIUM STRUCTURE"
AND OR "BUILDING 3
1.9 "CONDOMINIUM DOCUMENTS" 3
1.10 "CONDOMINIUM PLAN" 3
1.10A "CONDOMINIUM PROJECT" 3
1.11 "CONDOMINIUM PROPERTY" 3
1.12 "DECLARANT" 3
1.13 "DECLARATION" 4
1.14 "ELIGIBLE INSURER OR GUARANTOR" 4
1.15 "ELIGIBLE MORTGAGE HOLDER" 4
1.16 "FHA" 4
1.17 "FHLMC" 4
1.18 "FNMA" 4
1.19 "FIRST MORTGAGE" 4
1.20 "MEMBER" 4
1.21 "MORTGAGEE" 4
1.22 "MORTGAGE" 4
1.23 "MORTGAGOR" 4
1.24 "OWNER" 4
1.25 "PROJECT" 5
1.26 "RULES" 5
1.27 "UNIT," "CONDOMINIUM UNIT" AND/OR LIVING UNIT" 5
1.28 "VA" 5
ARTICLE II: DIVISION OF PROPERTY AND CREATION OF PROPERTY RIGHTS
2.1 DIVISION OF PROPERTY 5
2.2 PARTITION PROHIBITED 6
2.3 POWER OF ATTORNEY 7
2.4 AUTHORITY TO EXECUTE CONTRACTS 7
ARTICLE III: MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
3.1 TYPES OF MEMBERS 7
i
ARTICLE IV: RESPONSIBILITY OF MAINTENANCE
4.1 ASSOCIATION RESPONSIBILITY 7
4.2 OWNER RESPONSIBILITY 8
4.3 STANDARDS OF MAINTENANCE; NEGLECT 8
4.4 TAXATION 8
4.5 ALLOCATION OF COMMON EXPENSES 9
4.6 ENFORCEMENT OF JOINT OBLIGATIONS 9
4.7 PERSONAL LIABILITY OF OWNER 9
4.8 ANNUAL BUDGET; ALLOCATION OF COMMON EXPENSES ... 9
4.9 ARBITRATION 9
ARTICLE V: USE RESTRICTIONS
5.1 SINGLE FAMILY USE 10
5.2 LEASE OF UNITS 10
5.3 INSURABILITY 10
5.4 PETS 10
5.5 INTERFERENCE WITH OTHER OCCUPANTS 11
5.6 SIGNS 11
5.7 PARKING 11
5.8 FENCING RESTRICTIONS 11
5.9 SOLAR ACCESS 12
5.10 EXTERIOR LIGHTING 12
5.11 BUSINESS OR COMMERCIAL ACTIVITY 12
5.12 OFFENSIVE ACTIVITIES AND CONDITIONS 12
ARTICLE VI: UTILITIES; EASEMENTS
6.1 OWNERS RIGHTS AND DUTIES 12
6.2 ENCROACHMENT EASEMENTS 13
6.3 SIDE YARD EASEMENTS 13
6.4 DRAINAGE & SLOPES 14
ARTICLE VII: RIGHTS OF MORTGAGES
7.1 GENERAL 14
7.2 NO RIGHT OF FIRST REFUSAL 14
7.3 UNPAID DUES OR CHARGES 15
7.4 ACTION REQUIRING MORTGAGEE APPROVAL 15
7.5 PRIORITY OF INSURANCE PROCEEDS DISTRIBUTION 16
7.6 NOTIFICATION TO MORTGAGEE 15
7.7 AGREEMENT FOR MANAGEMENT 16
7.8 MORTGAGEES FURNISHING INFORMATION 16
7.9 NONCURABLE BREACH 16
7.10 LOAN TO FACILITATE 17
ARTICLE VIII: INSURANCE; DAMAGE OR DESTRUCTION; CONDEMNATION
8.1 INDIVIDUAL INSURANCE 17
8.2 ALTERNATIVE ASSOCIATION - MAINTAINED INSURANCE .. 17
8.3 DAMAGE OR DESTRUCTION 18
8.4 CONDEMNATION 18
ARTICLE IX: ENFORCEMENT
9.1 RIGHT TO ENFORCE 18
9.2 FAILURE TO ENFORCE 18
9.3 VIOLATION OF LAW 19
9.4 NUISANCE 19
ARTICLE X: GENERAL PROVISIONS
10.1 INVALIDITY OF ANY PRO VISION 19
10.2 AMENDMENTS 19
10.3 TERM AND EXTENSION OF DECLARATION 19
10.4 LITIGATION 19
10.5 BINDING ARBITRATION 20
10.6 ARBITRATION PROCEDURES AND RULES 20
10.7 WAIVER OF ARBITRATION 21
10.8 EXCEPTIONS 21
10.9 ASSOCIATION CLAIMS 21
10.10 GOVERNING DOCUMENTS 22
10.11 OWNERS COMPLIANCE 22
10.12 LIENS NOT VALID 22
10.13 NOTICE 22
10.14 INCORPORATION 22
10.15 SINGULAR INCLUDES PLURAL 22
10.16 LIBERAL CONSTRUCTION 22
THIS DECLARATION is made this day of , 2002 by
Robert L. McMillian, Trustee, and Sharon L. McMillian, Trustee, hereinafter called
"Declarant." This Declaration is made 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, State of California, more particularly described on Exhibit "A"
attached hereto and by this reference made a part hereof, hereinafter called the
"Condominium Property."
B. Declarant has or will hereafter file a Condominium Plan with the Office of the County
Recorder of San Diego County, California, covering the Condominium Property.
C. Declarant has or intends to improve the Condominium Property into two (2)
Condominium air space envelope Units, each containing a single family residential
building and land with perimeter as shown and identified on the Condominium Plan.
Declarant desires to develop the property as a Common Interest Development and
establish a residential Condominium Project under the provisions of the Davis-Stirling
Common Interest Development Act providing for separate title to Units (herein
defined), appurtenant to which will be an undivided fractional interest in the Common
Area (herein defined).
D. The Owners of a Condominium in the Project will receive title to a living area plus an
appurtenant undivided one-half (Vz) fractional interest as tenant in common in the
Common Area. Each Condominium shall have appurtenant to it a membership in
TERRAMAR CONDOMINIUM HOMEOWNERS ASSOCIATION, an
unincorporated association ("Association") organized comparable to a corporation
organized under the California Non-Profit Mutual Benefit Association Law
(California Corporations Code Sections 7110 et seq.), which will be the management
body for the Condominium Project.
E. Before selling or conveying any interests in the Condominium Project, Declarant
desires to subject the Condominium Property in accordance with a common plan to
certain covenants, conditions and restrictions for the benefit of Declarant and any and
all present and future Owners of the Condominium Property.
Page 1 of 23
NOW, THEREFORE, Declarant hereby certifies and declares and does hereby
establish the following general plan for the protection and benefit of all of the Condominium
property and does hereby fix the following protective conditions and restrictions upon each
and every ownership interest in the Condominium Property, under which conditions and
restrictions each ownership interest in the Condominium Property shall be hereinafter held,
used, occupied, leased, sold, encumbered, conveyed and/or transferred, subject to the
limitations, conditions and restrictions hereinafter set forth, all of which shall inure to the
benefit of, be binding upon and pass with the Condominium Property described above, and
each and every ownership interest therein, and shall inure to the benefit of, and apply to and
bind the respective successors in title or interest of Declarant.
ARTICLE I: DEFINITIONS
1.1 "ARTICLES" shall mean and refer to the Articles of Association as they may from
time to time be amended.
1.2 "ASSOCIATION" shall mean and refer to the TERRAMAR CONDOMINIUM
HOMEOWNERS ASSOCIATION, an unincorporated association organized
comparably to a corporation organized under the California Nonprofit Mutual Benefit
Law, its successors and assigns.
1.3 "BOARD" shall mean and refer to the Board of Directors of the Association.
1.4 "BYLAWS" shall mean and refer to the Bylaws of the Association as they may from
time to time be amended.
1.5 "COMMON AREA" shall mean and refer to the entire Common Interest
Development, except the separate interests in space called a Unit. The Common Areas
shall be owned as tenants in-common in equal shares, one (1) for each Unit. The
Common Area includes, without limitation: land, conduits, pipes, plumbing, wires and
other utility installations required to provide power, light, telephone, gas, water,
sewerage and drainage, and any other items described on the Condominium Plan,
except when such systems are located entirely within a Unit and/or when such systems
are located outside the boundaries of a Unit and serve, are designed to serve, and are
used or operated exclusively by the Owner of one Unit and not in common.
1.6 "COMMON EXPENSES" means and includes the actual and estimated expenses of
operating the Project and any reasonable reserve for such purposes as found and
determined by the Board and all sums designated common expenses by or pursuant to
the Condominium documents.
Page 2 of 23
1.7 "CONDOMINIUM" shall mean and refer to an estate in the "Condominium Property,"
or portions thereof, as defined in California Civil Condominium Property, or portions
thereof, as defined in California Civil Code Section 1351 (f), and shall consist of an
undivided interest as tenant-in-common in the portion of real property coupled with a
separate interest in space called a Unit.
1.8 "CONDOMINIUM BUILDING," "CONDOMINIUM STRUCTURE" AND/OR
"BUILDING" shall mean and refer to a building structure within the airspace envelope
of a Unit.
1.9 "CONDOMINIUM DOCUMENTS" means and includes this Declaration, as it may
be amended from time to time, the exhibits, if any, attached thereto, the Articles, the
Bylaws, and the rules and regulations for the homeowners association, as established
from time to time by the Board, and the Condominium Plan, including any
amendments thereto, as may be made from time to time.
1.10 "CONDOMINIUM PLAN" shall mean and refer to the Condominium Plan or
Condominium Plans recorded pursuant to California Civil Code Section 1351 covering
all or any part of the Condominium Property, including such amendments thereto as
may from time to time be recorded.
1.10A "CONDOMINIUM PROJECT" shall mean and refer to a common interest
development on the real property described under the heading "Legal Description"
on Exhibit "A" attached hereto.
1.11 "CONDOMINIUM PROPERTY" shall mean and refer to that certain real property
located in San Diego County, California, more particularly described on Exhibit "All
attached hereto.
1.12 "DECLARANT" shall mean and refer to Robert L. McMillian, Trustee and Sharon
L. McMillian Trustee, and its successors and assigns if such successors or assigns should
acquire all of the Declarant's interest in the Property for the' purpose of development
or sale, and Declarant has expressly transferred or assigned to such successors or
assigns its rights and duties as Declarant to a portion or all of the Property. For any
terms hereof, Declarant shall record in the County a certificate so designating said
successor or assignee as Declarant. A successor Declarant shall also be deemed to
include the beneficiary under any deed of trust securing an obligation from a then
existing Declarant encumbering all or any portion of the Property, which beneficiary
has acquired any such properly through foreclosure, power of sale or deed in lieu of
such foreclosure or sale.
Page 3 of 23
1.13 "DECLARATION" shall mean and refer to the Declaration or Declarations of
Restrictions recorded with the Office of the County Recorder of San Diego County,
California, covering the condominium Property, including such amendments thereto
as may from time to time be recorded.
1.14 "ELIGIBLE INSURER OR GUARANTOR" shall mean and refer to an insurer or
governmental guarantor who has provided a written request to the Homeowners
Association, to be notified of those matters which such holder is entitled to notice of
by reason of this Declaration or the Bylaws. Such notice must contain the unit number
or the unit address of the secured Condominium.
1.15 "ELIGIBLE MORTGAGE HOLDER" shall mean and refer to the holder of a first
mortgage or deed of trust on a Condominium, who has provided a written request to
the Homeowners Association, to be notified of those matters which such holder is
entitled to notice of by reason of this Declaration or the Bylaws. Such notice must
contain the unit number or the unit address of the secured Condominium.
1.16 "FHA" shall mean and refer to the Federal Housing Administration.
1.17 "FHLMC" shall mean and refer to the Federal Home Loan Mortgage Corporation.
1.18 "FNMA" shall mean and refer to the Federal National Mortgage Association.
1.19 "FIRST MORTGAGE" shall mean and refer to a First Deed of Trust as well as a First
Mortgage.
1.20 "MEMBER" shall mean and refer to a person entitled to membership in the
Association as provided within the Articles and this Declaration.
1.21 "MORTGAGEE" shall mean and refer to a Deed of Trust as well as a mortgage
encumbering a Condominium.
1.22 "MORTGAGE" shall mean and refer to a beneficiary or a holder of a deed of trust as
well as a mortgagee.
1.23 "MORTGAGOR" shall mean and refer to the trustor of a Deed of Trust as well as a
mortgagor.
1.24 "OWNER" shall mean and refer to the record Owner, whether one (1) or more persons
or entities, of any condominium, including contract buyers but excluding those having
such interest merely as security for the performance of an obligation.
Page 4 of 23
1.25 "PROJECT' shall mean and refer to the Condominium Property, including all
condominiums and all structures and improvements erected or to be erected thereon.
1.26 "RULES" shall mean and refer to the Rules and Regulations adopted by the Board.
1.27 "UNIT," "CONDOMINIUM UNIT" AND/OR "LIVING UNIT" shall mean and
refer to the separate interests in space in the Condominium Project which are not
owned in common with the other Owners of other Condominiums in the Project. Said
Units are shown described on the Condominium Plan and are identified therein as a
"Unit" and are numbered U-l, U-2,. The boundaries of each Unit are defined by the
envelope of air space as shown and described in the Condominium Plan. Each Unit
shall include the Condominium Building located therein.
1.28 "VA" shall mean and refer to the Veterans Administration.
ARTICLE II: DIVISION OF PROPERTY AND CREATION OF PROPERTY RIGHTS
2.1 DIVISION OF PROPERTY. The property is divided as follows:
(a) UNITS. Each of the Units as separately shown, numbered and designated in
the Condominium Plan consists of an "airspace envelope," the limits of which
are shown and described in the Condominium Plan.
Included within the boundaries of each Unit are all improvements located
therein, including but not limited to building structures, walls, decks, floors,
hot water heater, appliances, lighting fixtures, heating and other services,
pipes, ducts, flues, chutes, chimneys, conduits, wires and other utility
installations, wherever located upon or within a Unit, except any such pipes,
wire and other such utility installations being Common Area. All of the
foregoing located outside the boundaries of a Unit which serve, are designed
to serve, and are used or operated exclusively by the Owner of one Unit are
considered part of the Unit served.
Each Unit includes both the portions of the building so described and the
airspace so encompassed. The Unit does not include those areas and those
things which are defined as "Common Area" in Article 1.5. Each Unit is
subject to such encroachments as are contained in the building, whether the
same now exists or may be later caused or created in any manner referred to
in the Section entitled "Encroachment Easements." In interpreting deeds and
plans, the then existing physical boundaries of a Unit shall be conclusively
presumed to be its boundaries rather than the boundaries expressed in the
deed or plan, regardless of settling or lateral movement of the Property and
Page 5 of 23
regardless of minor variance between boundaries shown on the Condominium
Plan or deed and those of the Property.
(b) COMMON AREAS. The remainder of the Property constitutes and shall be
referred to herein as "Common Area" or "Common Areas," and includes,
within limitation, all of the elements set forth in previous Articles herein. Each
Owner shall have, as appurtenant to his Unit, a one-half (¥2) undivided interest
in the Common Area. Each Condominium includes a Unit and such undivided
interest in the Common Area. The common interest appurtenant to each Unit
is permanent in character and cannot be altered without the unanimous
consent of all of the Owners and of the holders of first mortgages on the
Condominiums, as expressed in an amended Declaration. Each Owner may
use the Common Area in accordance with the purposes for which it is intended
without hindering the exercise of or encroaching upon the rights of any other
Owner.
(c) EXCLUSIVE USE COMMON AREAS shall mean and refer to internal and
external telephone and electrical wiring, if any of the foregoing are designed
to serve a single Unit, but are located outside the boundaries of such Unit, and
are not included in the definition of a Unit.
(d) CONSTRUCTION, RECONSTRUCTION, REMODELING: Each Owner
shall have the right, subject to local governmental jurisdictional approval, to
construct or reconstruct a Dwelling, or add onto an existing Dwelling.
(e) NO SEPARATE CONVEYANCE OF UNDIVIDED INTERESTS. The
foregoing interests are hereby established and are to be conveyed with the
respective Condominiums as indicated above and cannot be changed except
as herein set forth. Declarant, its successors, assigns and grantees covenant
and agree that the interest in the Common Area and the Units conveyed
therewith, shall not be separated or separately conveyed, and each such
interest shall be deemed to be conveyed together even though the description
in the instrument of conveyance or encumbrance may refer only to the Unit.
2.2 PARTITION PROHIBITED. Each of the Owners of a Condominium, whether such
ownership is in fee simple or as a tenant-in-common, is hereby prohibited from
partitioning or in any other way severing or separating such ownership from any of the
other ownerships in the Condominium Property, except upon the showing that such
partition is consistent with the requirements of California Civil Code Section 1359, or
any successor statute.
Page 6 of 23
2.3 POWER OF ATTORNEY. The Association is hereby granted an irrevocable power
of attorney to the Condominium Property for the benefit of all the Owners thereof
when partition of the Owners' interests in said Condominium Property may be had
pursuant to Section 2.2 above. The power of attorney herein granted may be exercised
upon the vote or written consent of all Owners who are hereby authorized to record a
certificate of exercise in the office of the County Recorder, San Diego County, which
certificate shall be conclusive evidence thereof in favor of any person relying thereon
in good faith.
2.4 AUTHORITY TO EXECUTE CONTRACTS. The Association may, by a writing
signed by all the Members and imposing such conditions as the Members desire,
designate one or more Owners to act on behalf of the Association in performing any of
its duties, including, without limitation, the authority to execute contracts with third
parties to provide services or goods for the property. Any third party may conclusively
rely on such writing unless and until notified in writing that the delegation has been
revoked. The Association may revoke the delegation at any time with or without cause.
ARTICLE III: MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
3.1 TYPES OF MEMBERS. Every Owner automatically shall be a member of the
Association. Membership shall be appurtenant to and may not be separated from
ownership of any Condominium. Membership in the Association shall not be
transferred, pledged or alienated in anyway, except upon the sale of the Condominium
to which it is appurtenant, and then only to the purchaser. The transfer of title to a
condominium or the sale of a Condominium and transfer of possession thereof to the
purchaser shall automatically transfer the membership appurtenant to such
Condominium to the transferee, including transferees taking Title through foreclosure
proceedings.
The Association shall have one class of voting membership. Each membership entitles
the holder to one(l) vote for each Condominium of which he or she is record owner.
If a Condominium is owned by more than one person, no more than one (1) vote for
each Condominium.
The Association shall hold meetings as often as the members shall desire. The
Association shall have the rights and shall perform the duties as described in this
Declaration.
ARTICLE IV: RESPONSIBILITY OF MAINTENANCE
4.1 ASSOCIATION RESPONSIBILITY. The Association shall maintain, repair, replace,
restore, operate and manage all of the Common Area in this Declaration.
Page 7 of 23
It is the responsibility of the Association to notify all owners and tenants of the City of
Carlsbad's requirement of the National Pollution Discharge Elimination System (NPDES)
permit. Notification shall include the following:
(a) All owners and tenants shall coordinate efforts to establish or work with
established disposal programs to remove and properly dispose of toxic and
hazardous waste products.
(b) Toxic chemicals or hydrocarbon compounds such as gasoline motor oil,
antifreeze, solvents, paints, paint thinners, wood preservatives, and other such
fluids shall not be discharged into any street, public or private, or into storm
drain or storm water conveyance systems. Use and disposal of pesticides,
fungicides, herbicides, insecticides, fertilizers and other such chemical
treatments shall meet Federal, State, County and City requirements as
prescribed in their respective containers.
(c) Best Management Practices (BMP's) shall be used to eliminate or reduce
surface pollutant when planning any changes to the landscaping and surface
improvements. BMP's are referenced in the "California Storm Water Best
Management Practices Handbook."
4.2 OWNER RESPONSIBILITY. Each Owner of a Condominium shall be responsible,
at his or her sole cost and expense, for the maintenance, repair and replacement of the
following:
(a) All improvements within his or her Unit airspace, including but not limited to,
landscaping, yards, patios, buildings, building structural components, exterior
surfaces, doors, glass, windows, screens, metal frames, hardware, roofs and
foundations, as well as the interiors of all building structures and all appliances
whether "built-in" or freestanding therein. Each Owner shall also be
responsible for the maintenance and repair of all plumbing, heating,
ventilating, cooling and electrical systems servicing his or her Unit and the
building structure therein, including television cable equipment, wires and
connections and internal and external telephone wiring, so long as those
systems are used exclusively by such Owner or exclusively provide service to
such Owner's Unit (should any of the foregoing serve more than one Unit, it
shall be deemed Common Area.)
(b) Any fences, walls or slopes located in his Condominium Unit airspace;
provided, however, the cost of maintenance and repair of any fence or wall
which is located or placed on the dividing line between the Unit airspace
envelopes ("Party Wall") shall be shared by the respective Unit Owners. In the
Page 8 of 23
event any such Party Wall is damaged or destroyed by some cause (including
ordinary wear and tear and deterioration from lapse of time), other than the
act of one of the adjoining Owners, his or her tenants, guests or family, both
such adjoining owners shall proceed forthwith to rebuild or repair the same to
as good condition as formerly existed, at their joint expense, to such extent not
covered by insurance. In addition to meeting the other requirements of this
Declaration and of any building code or similar regulation or ordinance, any
owner proposing to modify, make additions to or rebuild any building structure
in any manner which requires the extension or other alteration of any Party
Wall shall first obtain the written consent of the adjoining Owner.
4.3 STANDARDS OF MAINTENANCE; NEGLECT. All maintenance and repair shall
be performed in a first class manner, and to standards consistent with the highest
standards in the area in which the Project is located. The cost of repair or replacement
of damage resulting from willful or omission, act or neglect of an Owner (or his guests,
tenants, or invitee) the costs of which are not covered by insurance shall be the
responsibility of the Owner responsible for such damage.
4.4 TAXATION. In the event that any taxes are assessed against the Association, the
Common Area or the personal property of the Association, if any, rather than against
the individual Condominium Units, such taxes shall be divided equally among the
Owners.
4.5 ALLOCATION OF COMMON EXPENSES. Each Owner shall be responsible for
payment of his pro rata share of any common expenses as defined in this Declaration.
4.6 ENFORCEMENT OF JOINT OBLIGATIONS. In the event an Owner fails to pay
for any joint obligation under this Declaration, the Association or the other Owners
may bring an action at law to recover the amount due and shall be entitled to recover
reasonable attorney's fees for such action.
4.7 PERSONAL LIABILITY OF OWNER. No Owner may exempt himself from personal
liability for any assessments or charges levied by the Association, nor release the
Condominium owned by him from the liens and charges hereof by waiver of the use or
enjoyment of any of the Common Area or by abandonment of his Condominium.
4.8 ANNUAL BUDGET; ALLOCATION OF COMMON EXPENSES: During the last
quarter of each calendar year, the Association shall establish a budget for all common
Expenses, if any, for the coming new year. Each Owner shall be responsible for
payment of his pro rata share of the budgeted expenses, and any other Common
Expenses. The Association shall prepare and distribute any financial statements and
Page 9 of 23
reports that may be required by law. The Association shall not have the authority and
power to levy assessments for purposes of collecting budgeted expenses.
4.9 ARBITRATION: In the event that any matter or proposal authorized, necessary or
required to be determined by the Owners cannot be determined for the reason that
there is a deadlock between them, then any Owner may invoke the provisions of this
Paragraph.
In the event of a deadlock, the matter shall be submitted to a neutral arbitrator selected
by the disagreeing Owners. The arbitrator shall submit a written decision to the Board
within ten (10) days thereafter. In the event the Owners are unable to agree upon a
single arbitrator, a panel of arbitrators shall be appointed as follows. The Owners shall
each select one arbitrator. The arbitrators so selected shall meet and select an
arbitrator who shall meet with, consider and determine the matter submitted by the
Owners. The selected arbitrator shall submit his written decision to the Owners within
twenty (20) days after having received the matter. All expenses of arbitration shall be
expenses of and paid for by the Owners. The decision of the arbitrator or arbitrators
shall be final, conclusive and binding upon the Owners and may be enforced in
accordance with the provisions of Title 9 of the Code of Civil Procedure of the State of
California, as it may from time to time be amended.
ARTICLE V: USE RESTRICTIONS
5.1 SINGLE FAMILY USE. Each Unit shall be improved, used and occupied for private,
single-family dwelling purposes only, and no portion thereof, nor the Common Area,
shall be used for any commercial purpose except as. may be provided in Section 5.12
hereafter; provided, however, Declarant may use any of the Condominium Units owned
or leased by Declarant as model homes and sales offices during that period of time
commencing when the Condominiums are first sold or offered for sale to the public,
and ending when all the Condominiums in the Project are sold and conveyed by
Declarant to separate Owners thereof, or one (1) year from the date of sale of the first
Condominium in the Project, whichever shall first occur.
5.2 LEASE OF UNITS. Each Owner shall have the right to rent or lease his
Condominium, provided that there is a written agreement signed by the parties and
provided that the tenant shall be bound by and obligated to the provisions of this
Declaration, the Bylaws and any rules and regulations established by the Board and
the failure to comply with the provisions of these documents shall be a default under
the written agreement.
5.3 INSURABILITY. No Condominium Unit or improvement situated therein shall be
occupied or used for any purpose or in any manner which shall cause such
Page 10 of 23
improvements to be uninsurable against loss by fire or the perils of the extended
coverage endorsement to the California Standard Fire Policy form, or cause any such
policy or policies representing such insurance to be canceled or suspended, or the
company issuing the same to refuse renewal thereof.
5.4 PETS. Except as otherwise provided in the zoning ordinances of the City of Carlsbad,
an Owner may keep and maintain in his Unit domesticated pets such as dogs, cats, or
other usual and ordinary household pets, not to exceed two (2) in number with an
aggregate weight of one hundred (100) pounds provided that they are not kept,
maintained or bred for any commercial purposes. The foregoing notwithstanding, no
pets may be kept on the Condominium property which result in an annoyance or are
obnoxious to other Unit Owners or occupants. No pets shall be allowed in the
Common Area except while on a leash which is held by a person capable of controlling
it. Declarant or any Owner may cause any unleashed dog found within the Common
Area to be removed by Declarant (or any owner) to a pound or animal shelter under
the jurisdiction of the City of Carlsbad by calling the appropriate authorities,
whereupon the Owner may, upon payment of all expenses connected therewith,
repossess the dog. No dog whose barking disturbs other Owners or occupants shall
be permitted to remain on the Condominium Property. Owners shall prevent their
pets from soiling portions of the Property where other persons customarily walk and
shall promptly clean up any mess left by their pets.
5.5 INTERFERENCE WITH OTHER OCCUPANTS. No Condominium Unit shall be
used in such manner as to obstruct or interfere with the enjoyment of the occupants
of the other Units or annoy them by unreasonable noise or otherwise, nor shall any
nuisance be committed or permitted to occur in any Unit.
5.6 SIGNS. No signs, place cards, decals or other similar objects, other than one (1) sign
of customary and reasonable dimensions advertising a Condominium for sale or lease,
and one (1) of similar dimensions stating the existence of a security system shall be
erected or displayed in any Condominium so that it is visible from outside such area
without the prior written permission of the Board, and all signs must conform with
applicable governmental ordinances.
Anything contained in this Declaration to the contrary notwithstanding, Declarant
shall have the right to install and maintain during the sales period set forth in Section
5.1 above, such signs, poles and advertisements as it deems appropriate in connection
with its sales program for the sale to the public of Condominiums, provided such signs
do not unusually interfere with the right of use and quiet enjoyment of the
Condominium Owners. Reasonable window dressings placed in observance of
national or religious holidays shall not be considered signs for purposes of this Section
5.6.
Page 11 of 23
5.7 PARKING. No trailer, camper, mobile home, motor home, house car, commercial
vehicle, truck, inoperable automobile, or similar equipment shall be permitted to
remain upon any area within the Project other than temporarily for purposes of
loading, unloading or cleaning. Temporary parking shall mean parking of vehicles
belonging to guests or Owners, delivery trucks, service vehicles and other commercial
vehicles being used in the furnishing of services to the owners and parking of vehicles
belonging to or being used by owners for loading and unloading purposes. Garages
and outdoor parking spaces may be used only to park sedans, standard sized pickup
trucks and vans, and, in the case of garages, boat storage, provided any such vehicle
may be fully enclosed within the space provided. Commercial vehicles shall not
include sedans or standard size vans and pickup trucks which are used both for
business and personal use, provided that any signs or markings of a commercial nature
on such vehicles shall be unobtrusive and inoffensive as determined by the Board.
Except for purposes of ingress or egress, garage doors shall remain closed. No noisy,
smoky or unlicensed motor vehicle shall be operated upon the Project.
5.8 FENCING RESTRICTIONS. No fencing shall be erected, or caused to be erected
within the Project by any Owner or occupant of the Units; provided, however, that
fencing made of materials which are compatible with the other structures on the
Condominium Property, or replacement fencing constructed with the same materials
as the original, may be allowed with the consent of all Owners. Compatible materials
shall not include chain-link fencing.
5.9 SOLAR ACCESS. Each Unit within the Project shall have the right to a minimum
area of one hundred (100) square feet of solar access. No vegetation or other
improvement shall be planted or maintained in any Unit in such a location or at such
a height as to unreasonably obstruct the rays of the sun from a solar collector installed
on another Unit in the Project. The foregoing notwithstanding, should a solar
collector be installed at a later date, the cost of removing or modifying the established
landscaping upon another Unit shall be the responsibility of the Owner benefitting
from the solar access. The Owner installing the solar collectors shall place the solar
collectors in a location as to minimize any impact upon another Unit.
5.10 EXTERIOR LIGHTING. Any exterior lighting installed on any Unit shall be
indirect or of such controlled focus and intensity as not to unreasonably disturb
occupants of the other Condominiums.
5.11 BUSINESS OR COMMERCIAL ACTIVITY. No business of any kind shall be
permitted or conducted in any of the Condominiums. Owners may, however, without
external evidence, (1) maintain their personal professional library, (ii) keep personal
business or professional records, or (iii) handle his or her personal business,
professional calls or correspondence from said premises.
Page 12 of 23
5.12 OFFENSIVE ACTIVITIES AND CONDITIONS. No noxious or offensive activity
shall be carried on in any Condominium Unit, nor shall anything be done therein
which may be or become an annoyance or nuisance to the other Owners or occupants.
No rubbish or debris of any kind shall be placed or permitted to accumulate anywhere
on the Condominium Property (and no odor shall be permitted to arise therefrom)
so as to render the Property or any portion thereof unsanitary, unsightly or offensive.
All equipment, garbage cans, wood piles or storage piles shall be kept screened and
concealed from view of the other Condominiums and the street. No activity shall be
undertaken or permitted on any Unit which causes sound, whether intermittent,
recurrent or continuous, in excess of forty-five (45) decibels measured at any point on
the boundary line of said Lot. No Condominium shall be used in such a manner as to
obstruct or interfere with the enjoyment of occupants of other such areas, nor shall
any illegal activity be committed or permitted to occur in any Condominium.
ARTICLE VI: UTILITIES; EASEMENTS
6.1 OWNERS RIGHTS AND DUTIES. The rights and duties of the Owners of
Condominiums within the Project with respect to sanitary sewer, water, drainage,
electric, gas, television receiving, telephone equipment, cables and line, and similar
facilities (hereinafter referred to, collectively, as "utility facilities") shall be as follows:
(a) Whenever utility facilities are installed within the Condominium Property,
which utility facilities or any portion thereof lie in or upon the Condominium
Unit owned by other than the Owner of a Condominium served by said
facilities, the served owner shall have the right, and is hereby granted easement
to the full extent necessary therefor, to enter upon the Condominium Unit or
to have the utility companies enter upon the Condominium Unit in or upon
which said utility facilitates, or any portion thereof, lies, to repair, replace and
generally maintain said utility facilities as and when necessary in accordance
with the right of entry provisions of Section 3.4 herein.
(b) Whenever utility facilities are installed within the property, which utility
facilities serve more than one (1) Condominium Unit, the Owner of each
Condominium Unit served by said utility facilities shall be entitled to the full
use and enjoyment of such portions of said utility facilities as service his
Condominium.
(c) In the event of a dispute between Owners with respect to the repair or
rebuilding of said utility facilities, or with respect to the sharing of the cost
thereof, then the arbitration provisions of Section 3.6 herein may be invoked.
Page 13 of 23
(d) The water, gas and electricity to each Unit shall be under a separate meter,
and each Owner shall be responsible for paying his or her own utility bills.
6.2 ENCROACHMENT EASEMENTS. If any portion of a Condominium Building or
improvement located in one Unit encroaches into another Unit due to minor
engineering errors, settlement, shifting or any other cause, the Owner of the
encroachment shall have the right to maintain, repair or replace the encroachment,
as long as it exists, and rights and obligation of the Owners shall not be altered in any
way by said encroachment, settlement or shifting; provided, however, that no right
shall be created in favor of an Owner or Owners if said encroachment occurred due
to the intentional conduct of said Owner or Owners. In the event a structure in a Unit
airspace is partially or totally destroyed and then rebuilt or repaired, the Owners agree
that minor encroachments over adjoining Unit airspaces shall be permitted and there
shall be easements for maintenance of such encroachments so long as they shall exist.
6.3 SIDE YARD EASEMENTS. In all cases where a structural wall, foundation, roof
or eave of a Condominium Building located in one Unit that was built as part of the
original Construction is located on the dividing line between Units or encroaches into
another Unit, the Owner of the Unit shall have a nonexclusive easement of the wall,
foundation, roof or eave of the Condominium Building and for the reconstruction or
repair in the event of the partial or total destruction of the same. The Owner of the
Condominium Building having a structural wall situated on the dividing line between
his Unit and the adjoining Unit shall not attach anything to the outside of the wall
which shall protrude across the dividing line into the adjoining Unit, and the Owner
of the adjoining Unit upon which such a wall is situated shall not attach anything to
the outside of the wall without (in each case) the consent and permission of the
Owner of the adjoining Unit of which the wall is a part.
6.4 DRAINAGE & SLOPES. The Owner of a Unit shall permit free access by the Owner
of the adjacent Unit to slopes or drainage ways located in his or her Unit, which affect
the adjacent Unit, when such access is essential for the maintenance or permanent
stabilization of said slopes, or maintenance of the drainage facilities for the protection
and use of property other than the Unit in which the slopes or drainage way is located.
The Owner of any Unit shall not in any way interfere with the established drainage
pattern over his Unit from the adjacent Unit, and such owner will make adequate
provisions for proper drainage in the event it is necessary to change the established
drainage through his Unit. For the purpose herein, "established drainage" is defined
as the drainage which occurred at the time the overall grading of the project was
completed.
ARTICLE VII: RIGHTS OF MORTGAGEES
Page 14 of 23
7.1 GENERAL. No breach of any of the covenants, conditions and restrictions herein
contained, nor the enforcement of any lien provisions herein, shall render invalid the
lien of any First Mortgage on any condominium made in good faith and for value, but
all of said covenants, conditions, and restrictions shall be binding upon and effective
against any, Owner whose title is derived through foreclosure or trustee's sale, or
otherwise. Any provision within the Project Documents to the contrary
notwithstanding, First Mortgagees shall have the rights expressly provided in this
Article VII.
7.2 NO RIGHT OF FIRST REFUSAL. This Declaration neither contains nor shall be
amended to contain any provision creating a "right of first refusal" to the Association
before a Condominium can be sold. Should any such rights nevertheless be created
in the future, such rights shall not impair the rights of any first mortgagee to: (a)
foreclose or take title to a Condominium pursuant to the remedies provided in the
mortgage, (b) accept a deed (or assignment) in lieu of foreclosure in the event of a
default by a mortgagor, or (c) sell or lease a Condominium acquired by the
Mortgagee.
7.3 UNPAID DUES OR CHARGES. Where the Mortgagee of a First Mortgage of
record or other purchaser of a Condominium obtains title to the same pursuant to the
remedies in the Mortgage or as a result of foreclosure, such acquirer of title, his
successors and assigns, shall not be liable for the share of the common expenses or
assessments made by the Association chargeable to such Condominium prior to the
acquisition by such acquirer. Such unpaid share of common expenses or assessments
shall be deemed to be common expenses collectible from all the Condominiums
including such acquirer, his successors and assigns.
7.4 ACTION REQUIRING MORTGAGEE APPROVAL. Provided that the mortgagee
informs the Association in writing of its appropriate address and requests in writing
to be notified, neither the Association nor any Owner shall do any of the following,
unless one-hundred percent (100%) of the First Mortgagees of Mortgages
encumbering Condominiums (based upon one (1) vote for each Mortgagee) have
given their prior written approval:
(a) Seek, by act or omission, to abandon the Condominium Project or to terminate
the Condominium Plan or this Declaration, or change, waive or abandon any
scheme or regulation or enforcement thereof, pertaining to the architectural
design or the exterior appearance or maintenance of Units or the Common
Area;
(b) Change the prorata interest or obligations of any Condominium for purposes
of levying assessments or allocating distributions of hazard insurance proceeds
Page 15 of 23
or condemnation awards or for determining the prorata share of the Common
Area appurtenant to each Unit;
(c) Partition or subdivide any Condominium;
(d) Seek, by act or omission, to abandon, partition, subdivide, encumber, sell or
transfer the Common Area; provided, however that the granting of easements
for public utility or other public purposes consistent with the uses of the
Common Area shall not be deemed a transfer within the meaning of these
provisions;
(e) Use hazard insurance proceeds for losses to any portion of the Condominium
Property for other than repairs, replacement or reconstruction of the
Condominium Property, except as may be provided by statute or upon
substantial loss to the Units or Common Area, respectively; or
(f) Fail to maintain fire and extended coverage insurance on the common Area
on a current replacement cost basis in an amount less than one hundred
percent (100 %) of the insurance value thereof, based on current replacement
cost.
7.5 PRIORITY OF INSURANCE PROCEEDS DISTRIBUTION. Any other provision
herein contained to the contrary notwithstanding, no provision of this Declaration or
any other condominium constituent documents shall give a Condominium Owner
priority over any rights of a first mortgagee or beneficiary of the Condominium Unit
pursuant to its mortgage deed of trust in the case of a distribution to such unit Owner
of insurance proceeds or condemnation awards for losses to or a taking of
Condominium Units and/or common elements.
7.6 NOTIFICATION TO MORTGAGEE. Upon written request to the Association,
identifying the name and address of the holder, insurer or guarantor and the
Condominium number or address, any Eligible Mortgage Holder or Eligible Insurer
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 condominium on which there is a First Mortgage held,
insured or guaranteed by such Eligible Mortgage Holder or Eligible Insurer;
(b) Any default in the performance by an Owner of any obligation under the
Condominium Documents not cured within sixty (60) days;
Page 16 of 23
(c) Any lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association; or,
(d) Any proposed action which would require the consent of a specified
percentage of Eligible Mortgage Holders as required in the Bylaws or in this
Declaration.
7.7 AGREEMENT FOR MANAGEMENT. Any agreement for management of the
Project, and any other contract providing for services by the Declarant, shall be
terminable for cause upon thirty (30) days written notice, and without cause or
payment of a termination fee upon ninety (90) days, or fewer, written notice and shall
have a term of not more than two (2) years, renewable with the consent of the
Association and the management agent.
7.8 MORTGAGEES FURNISHING INFORMATION. Any Mortgagee can furnish
information to the Board concerning the status of any Mortgage.
7.9 NONCURABLE BREACH. Any Mortgagee who acquires title to a Condominium
by foreclosure or by deed in lieu of foreclosure or assignment-in-lieu of foreclosure
shall not be obligated to cure any breach of this Declaration that is noncurable or of
a type that is not practical or feasible to cure.
7.10 LOAN TO FACILITATE. Any First Mortgage given to secure a loan to facilitate the
resale of a Condominium after acquisition by foreclosure or by a deed-in-lieu of
foreclosure or by an assignment-in-lieu of foreclosure shall be deemed to be a loan
made in good faith and for value and entitled to all of the rights and protections of
this Article VII.
ARTICLE VIII: INSURANCE; DAMAGE OR DESTRUCTION, CONDEMNATION
8.1 INDIVIDUAL INSURANCE. Each Owner shall obtain and maintain at the Owner's
sole expense, (a) fire and casualty coverage as required by any mortgagee of an
Owner's unit and in no event less than the full replacement value (i.e. one hundred
percent (100%) of current "replacement cost," exclusive of land, foundation,
excavation and other items normally excluded from coverage of all of the
improvements within a Condominium Unit, without deduction for depreciation, with
an "agreed amount endorsement" or its equivalent, and, if necessary, an increased
cost of construction endorsement" or "contingent liability from operation of building
laws endorsement"; such insurance shall afford protection against loss or damage by
fire and other hazards covered by the standard extended coverage endorsement, and
by sprinkler leakage, debris removal, costs of demolition, vandalism, malicious
mischief, windstorm, water damage and such other risks as shall customarily be
Page 17 of 23
covered with respect to similar Dwellings in the area of the Project; and (b) personal
liability insurance in an amount not less than Five Hundred Thousand Dollars
($500,000.). All such individually carried insurance shall contain a waiver of
subrogation by the carrier as to the other Owners, the Declarant, and the mortgagees
of such Condominium Unit.
8.2 ALTERNATIVE ASSOCIATION - MAINTAINED INSURANCE. In the event
that an Owner, acting individually, after a good faith effort, is unable to obtain the
individual Condominium fire, casualty and/or liability insurance required hereunder,
because the insurance is no longer available for an individual condominium Unit, such
Owner shall immediately notify the other Owners and any mortgagee entitled to
notice that such insurance or any portion thereof cannot be obtained or renewed.
Thereafter, the Owners acting together or through the Association shall obtain such
insurance as may be necessary and the expense therefore pro-rated between the
Owners in accordance with the amounts and coverage attributable to their respective
Condominium Units.
Each Owner, in this instance, shall appoint the Association or any insurance trustee
designated by the Association to act on behalf of the Owners in connection with all
insurance matters arising from any insurance policy maintained by the Association,
including without limitation, representing the Owners in any proceeding, negotiation,
settlement or agreement. Any insurance maintained by the Association shall contain
a "waiver of subrogation" as to the Association and its officers, directors and the
Owners and occupants of the Condominiums (including Declarant) and mortgagees,
and, if obtainable, a cross-liability or severability of interest endorsement insuring
each insured against liability to each other insured. The Association shall periodically
(and no less than every three (3) years review all insurance policies maintained by the
Association to determine the adequacy of the coverage and to adjust the policies
accordingly.
8.3 DAMAGE OR DESTRUCTION. If an improvement within a Unit airspace
envelope is damaged or destroyed by fire or other casualty, the Owner of such Unit
shall repair, reconstruct or replace the improvement in accordance with the original
as-built plans and specification, modified as may be required by applicable building
codes and regulations in force at the time of such repair or reconstruction. The owner
of such Unit shall be obligated to proceed with all due diligence hereunder, and such
owner shall cause construction to commence within four (4) months after the damage
occurs if it is of a "repair-like" nature (less than 20% damage to the improvements),
or six (6) months after the damage if it is of a "reconstruction" nature (greater than
20% damage to the improvements); repair or reconstruction shall be completed within
one (1) year after commencement thereof, unless prevented by causes beyond the
Owner's reasonable control, such as strikes, Acts of God, etc.
Page 18 of 23
8.4 CONDEMNATION. In the event of a taking by eminent domain of all or any part
of a Condominium Unit, the award shall be disbursed to the Owner of said Unit
subject to the rights of the Owner's mortgagees. If the taking is for all of a Unit, the
Unit Owner, after acceptance of the award therefor, and the Unit's Mortgagee shall
be divested of all interest in the Condominium Property.
ARTICLE IX: ENFORCEMENT
9.1 RIGHT TO ENFORCE. The Association, Declarant and any Owner shall have the
right to enforce, by any proceeding at law or in equity, all restrictions, conditions,
covenants, reservations, liens and charges now or hereafter imposed by this
Declaration. Each Owner of a Condominium shall have a right of action against the
other Owners for failure to comply with the provisions of the Declaration or Bylaws,
or with the decisions of the Association which are made pursuant to authority granted
the Association under this Declaration or the Bylaws.
9.2 FAILURE TO ENFORCE. Failure by the Association, Declarant or any Owner to
enforce any provision of this Declaration shall in no event be deemed a waiver of the
right to do so thereafter. Each remedy provided by this Declaration shall be
cumulative and not exclusive.
9.3 VIOLATION OF LAW. Any violation of state, municipal or local law, ordinance or
regulation pertaining to the ownership, occupation or use of any Condominium within
the Project is hereby declared to be a violation of this Declaration and subject to any
or all of the enforcement procedures herein set forth.
9.4 NUISANCE. The result of every act or omission, whereby any provision, condition,
restriction covenant, easement, or reservation contained in this Declaration is violated
in whole or in part, is hereby declared to be and constitute a nuisance, and every
remedy allowed by law or equity against a nuisance, either public or private, shall be
applicable against every such result and may be exercised by any Owner. Each remedy
provided by this Declaration shall be cumulative and not exclusive.
ARTICLE X: GENERAL PROVISIONS
10.1 INVALIDITY OF ANY PROVISION. Should any provision or portion hereof be
void or become invalid or unenforceable in law or equity by judgment or court order,
the remaining provisions hereof shall be and remain in full force and effect.
10.2 AMENDMENTS. This Declaration may be amended by the written consent of all
Owners. Any amendment must be recorded and shall become effective upon being
recorded in the Recorder's Office of the County of San Diego.
Page 19 of 23
10.3 TERM AND EXTENSION OF DECLARATION. The covenants and restrictions
of this Declaration shall run with and bind the property, and shall inure to the benefit
of and shall be enforceable by any Owner of the property subject to this Declaration,
their respective legal representatives, heirs, successors and assigns, for a term of thirty
(30) years from the date this Declaration is recorded, after which time they shall be
automatically extended for successive periods often (10) years, unless an instrument
in writing, signed by all of the then Owners of the Condominiums, has been recorded
within the year preceding the beginning of each successive period of ten (10) years,
agreeing to change said covenants and restrictions in whole or in part, or to terminate
the same.
10.4 LITIGATION. In the event the Association, Declarant, or any Owner shall
commence litigation to enforce any of the covenants, conditions or restrictions herein
contained, the prevailing party in such litigation shall be entitled to costs of suit and
such attorney's fees as the Court may adjudge reasonable and proper. The "prevailing
party" shall be the party who is entitled to recover his costs of suit, whether or not the
suit proceeds to final judgment. A party not entitled to recover his costs shall not
recover attorney's fees. No sum for attorney's fees shall be counted in calculating the
amount of the judgment for purposes of determining whether a party is entitled to
recover his costs or attorney's fees.
10.5 BINDING ARBITRATION. Arbitration of Disputes. Except as expressly provided
herein or by law, any dispute, controversy or claim by the Board, the Association or
any owner(s), (collectively "Claim") against Declarant, its successors, assigns, agents
or brokers, and/or any contractor, subcontractor, architect, materialman, or other
person or entity involved in the planning, development or construction of the Project
or any component part thereof, shall be handled as follows:
(a) The Board or the Owner(s), as the case may be, shall deliver written notice of
the nature of such Claim to Declarant and any other involved person or entity
within one (1) year of becoming aware of the existence of such Claim, or the
facts giving rise to such Claim. For purposes of this Section, knowledge of such
Claim shall be deemed to exist, without limitation, upon the identification of
such Claim or facts relating thereto, in (i) a written report prepared following
an inspection in accordance with the inspection provisions contained herein,
(ii) a writing by an Owner to either Declarant or the Board, or (iii) upon the
discovery of such Claim.
(b) If Declarant or another involved party so elects, within one hundred twenty
(120) days of the date of receipt of such written notice of a Claim, it shall be
provided with access to the Property and a reasonable opportunity and time
period to cure or otherwise resolve such Claim.
Page 20 of 23
(c) Any such Claim, if not otherwise resolved in accordance with subparagraph (b)
above, shall be submitted to and settled by binding arbitration in accordance
with this Section. Arbitration shall, failing a resolution in accordance with
subparagraph (b) above, constitute the sole and exclusive remedy for the
resolution of any such Claim.
10.6 ARBITRATION PROCEDURES AND RULES. Any arbitration instituted
pursuant to this Declaration shall be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. The decisions of the arbitrator, including the determination of the amount
of any damages suffered, if any, shall be conclusive, final and binding upon all the
parties, their heirs, executors, administrators, successors, assigns, officers, directors
and shareholders, as applicable. On the demand of the arbitrator or any party to an
arbitration initiated hereunder, and after reasonable opportunity to join in and
become a party to such arbitration, all of the parties to such arbitration and such
concerned parties shall be bound by such arbitration proceeding. If any party refuses
or neglects to appear at or participate in such arbitration proceeding, the arbitrator
is empowered to decide the controversy in accordance with whatever evidence is
presented by the party or parties who do participate. The arbitrator is authorized to
award any party or parties such sums as it considers proper for the time, expense and
trouble of arbitration, including arbitrator fees and attorneys' fees. California Code
of Civil Procedure Section 1283.05 (and any successor statute), which provides for
extended mutual discovery rights during an arbitration proceeding, is hereby
incorporated into, made a part of, and made applicable to this Article.
10.7 WAIVER OF ARBITRATION. In the event any legal action or proceeding is
instituted by a party (which is subject to this section) in connection with any matter
for which arbitration under this Section may be required, such party conclusively shall
be deemed to have waived its right to require arbitration hereunder, and any party
(which is also subject to this Section) named in such action or proceeding may, at any
time within thirty (30) days after being served by proper service of process with respect
to such action or proceeding, require by written notice delivered to the first mentioned
party that such matter be determined by arbitration pursuant to this Section, and such
requirement shall be binding on all such parties. A party's failure to require such
arbitration within said thirty (30) day period will constitute waiver by such party of its
right to require arbitration under this Section, and the party which instituted such
action or proceeding also shall be deemed conclusively to have waived its right to
require arbitration as of the end of said thirty (30) day period.
Page 21 of 23
10.8 EXCEPTIONS. Notwithstanding anything contained in this Section to the contrary,
the provisions of this Section shall not apply to any legal action or proceeding
instituted in connection with the enforcement or collection of any regular, special or
other assessment or other obligation arising under the Article herein entitled
"Assessments." Additionally, the filing of a judicial action to enable the recording of
a notice of pending action, for order of attachment, receivership, injunction or other
provisional remedies, shall not constitute a waiver of the right to arbitrate under this
Section.
10.9 ASSOCIATION CLAIMS. In any arbitration for a dispute, controversy or claim by
the Association against Declarant, its successors and assigns, and/or any contractor,
pertaining to the planning, development or construction of the Project or any
component part thereof, not less than ninety percent (90%) of the amount actually
awarded, if any, as a result of such arbitration must be utilized by the Association,
solely and exclusively, for the construction, reconstruction, repair or replacement of
the Project.
10.10 GOVERNING DOCUMENTS. In the event of a conflict between this Declaration
and any other Project Document, the provisions of this Declaration shall control.
10.11 OWNERS COMPLIANCE. Each Owner, tenant or occupant of a Condominium
shall comply with the provisions of this Declaration, the Bylaws, decisions and
resolutions of the Association or its duly authorized representative, as lawfully
amended from time to time. Failure to comply with any such provisions, decisions or
resolutions shall be grounds for any action (a) to recover sums due, (b) for damages,
(c) for injunctive relief, (d) for costs and attorney's fees, or (e) for any combination of
the foregoing.
All agreements and determinations lawfully made by the Association in accordance
with the voting percentages established in this Declaration or in the Bylaws, shall be
deemed to be binding on all Owners of Condominiums, their successors and assigns.
10.12 LIENS NOT VALID. No breach of any provisions of these covenants, conditions and
restrictions shall invalidate the lien of any First Mortgage made in good faith and for
value, but all of said covenants, conditions and restrictions shall be binding upon the
Owner whose title is derived through foreclosure sale, Trustee's Sale or otherwise.
10.13 NOTICE. Any notice permitted or required by the Declaration, Articles or Bylaws
may be delivered either personally or by mail. If delivery is by mail, it shall be deemed
to have been delivered seventy-two (72) hours after a copy of the same has been
deposited in the United States Mail, first class or certified, postage prepaid, addressed
to the person to be notified at his current address given by such person to the
Page 22 of 23
Association or addressed to the Condominium of such person if no address has been
given.
10.14 INCORPORATION. The Association, an unincorporated association, may be
incorporated upon the vote or written assent of one hundred percent (100%) of the
voting power thereof, where after, the approving members shall be authorized to
execute appropriate Articles of Incorporation and to file the same with the Secretary
of State, certifying that such votes of written consent have been obtained.
10.15 SINGULAR INCLUDES PLURAL. Whenever the context of this Declaration
requires same, the singular shall include the plural and the masculine shall include the
feminine.
10.16 LIBERAL CONSTRUCTION. The provisions of this Declaration shall be liberally
construed to effectuate its purpose of creating a uniform plan for the development of
a residential community and for the maintenance of the Project. The titles or
headings of the Articles or Sections of this Declaration have been inserted for
convenience only and are not to be referred to in resolving questions of interpretation
or construction.
IN WITNESS WHEREOF, the undersigned, being Declarant herein, has executed this
instrument the day and year first herein above written.
DECLARANT:
By:
Robert L. McMillian, Trustee
By:
Sharon L. McMillian, Trustee
Page 23 of 23
City of Carlsbad
Planning Department
July 29, 2002
Robert L. McMillian
5157 Carlsbad Boulevard
Carlsbad, CA 92008
SUBJECT: CP 02-02 - MCMILLIAN CONDOS
The City has completed a review of the application for a two-unit, two-family condominium
conversion located along the west side of Carlsbad Boulevard at 5155-5157 Carlsbad Boulevard
within Local Facilities Management Zone 3.
It is the Planning Director's determination that based on the attached conditions, the project is
consistent with the City's condominium regulations (Chapter 21.45) and with all other applicable
City Ordinances and Policies. Further, the project has been found to be categorically exempt
from environmental review according to Section 15301(k) of the California Environmental
Quality Act and a Notice of Exemption was filed on July 26,2002.
This letter, including the listed findings and conditions, constitutes APPROVAL of CP 02-02 -
MCMILLIAN CONDOS, as shown on Exhibits "A" - "F" dated July 29, 2002, on file in the
Planning Department and incorporated herein by reference.
Findings;
1. That the granting of this permit will not adversely affect and will be consistent with the
Municipal Code, the General Plan, applicable specific plans, master plans, and all
adopted plans of the City and other governmental agencies, in that the two unit project
is considered consistent with the General Plan as all legally existing R-2 zoned lots,
as of December 1, 1986, could be developed with a two-family residence regardless
of the density allowed by their General Plan designation if they comply with all
applicable development standards in effect at the time of their development. As
discussed in Finding #4, the project is consistent with the development standards of
the Planned Development Ordinance (Chapter 21.45 of the Carlsbad Municipal
Code). The project is consistent with the Housing Element and the inclusionary
housing ordinance as the developer has been conditioned to pay an inclusionary
housing in-lieu fee per unit.
2. That the proposed use at the particular location is necessary and desirable to provide a
service or facility which will contribute to the long-term general well-being of the
neighborhood and the community, in that the 2-unit condominium is consistent with
the surrounding development of single family, two family, multi-family,
condominium and apartment projects.
1635 Faraday Avenue • Carlsbad, CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 • www.ci.carlsbad.ca.us
CP 02-02 - MCMJLLIAT^JNDOS
July 29, 2002
Page 2
3. That such use will not be detrimental to the health, safety, or general welfare of persons
residing or working in the vicinity, or injurious to property or improvements in the
vicinity, in that the project is consistent with the General Plan and Zoning
Designations which permits two-family attached condominiums.
4. That the proposed Planned Development meets all of the minimum development
standards set forth in Chapter 21.45.090, the design criteria set forth in Section
21.45.080, and has been designed in accordance with the concepts contained in the
Design Guidelines Manual, in that the project does not exceed the allowed density of 2
dwelling units per legally existing R-2 zoned lot, as of December 1, 1986; setback
requirements have been met, two-car garages have been provided for each
residence; one required guest parking space has been provided, private rear yard
areas and balconies/decks have been provided; and storage spaces have been
provided in the enclosed garages for each residence.
5. That the proposed project is designed to be sensitive to and blend in with the natural
topography of the site, and maintains and enhances significant natural resources on the
site, in that the site is a previously graded infill lot and there are no significant
natural resources located on the site.
6. That the proposed project's design and density of the developed portion of the site is
compatible with surrounding development and does not create a disharmonious or
disruptive element to the neighborhood, in that the proposal is consistent with the
surrounding development of attached two-family, multi-family and single family
units.
7. That the project's circulation system is designed to be efficient and well integrated with
the project and does not dominate the project in that Carlsbad Boulevard has adequate
capacity to accommodate project ADT and adequate public facilities necessary to
serve this project will be provided as required by the City Engineer in conjunction
with the approval of parcel map (MS 02-02) required for this project.
8. The project is consistent with the City-Wide Facilities and Improvements Plan, the Local
Facilities Management Plan for Zone 1 and all City public facility policies and
ordinances. The project includes elements or has been conditioned to construct or
provide funding to ensure that all facilities and improvements regarding: sewer
collection and treatment; water; drainage; circulation; fire; schools; parks and other
recreational facilities; libraries; government administrative facilities; and open space,
related to the project will be installed to serve new development prior to or concurrent
with need. Specifically,
A. The project has been conditioned to provide proof from the Carlsbad Unified
School District that the project has satisfied its obligation for school facilities.
B. Park-in-lieu fees are required by Carlsbad Municipal Code Chapter 20.44, and
will be collected prior to issuance of building permit.
CP 02-02 - MCMILLIAN^)NDOS
July 29, 2002
Page 3
C. The Public Facility fee is required to be paid by Council Policy No. 17 and will
be collected prior to the issuance of building permit.
D. The Local Facilities Management fee for Zone 1 is required by Carlsbad
Municipal Code Section 21.90.050 and will be collected prior to issuance of
building permit.
9. That the Planning Director has determined that the project is exempt from the
requirements of the California Environmental Quality Act (CEQA) per Section 15301(k)
of the state CEQA Guidelines and will not have any adverse significant impact on the
environment.
Conditions;
General;
Note: Unless otherwise specified herein, all conditions shall be satisfied prior to issuance of
Parcel Map Recordation (MS 02-02).
1. If any of the following conditions fail to occur; or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so
implemented and maintained according to their terms, the City shall have the right to
revoke or modify all approvals herein granted; deny or further condition issuance of all
future building permits; deny, revoke or further condition all certificates of occupancy
issued under the authority of approvals herein granted; institute and prosecute litigation
to compel their compliance with said conditions or seek damages for their violation. No
vested rights are gained by Developer or a successor in interest by the City's approval of
this Condominium Permit.
2. Staff is authorized and directed to make, or require the Developer to make, all corrections
and modifications to the Tentative Parcel Map/Condominium Site Plan documents, as
necessary to make them internally consistent and in conformity with the final action on
the project. Development shall occur substantially as shown on the approved Exhibits.
Any proposed development different from this approval, shall require an amendment to
this approval.
3. The Developer shall comply with all applicable provisions of federal, state, and local
laws and regulations in effect at the time of building permit issuance.
4. If any condition for construction of any public improvements or facilities, or the payment
of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project
are challenged, this approval shall be suspended as provided in Government Code
Section 66020. If any such condition is determined to be invalid this approval shall be
invalid unless the City Council determines that the project without the condition complies
with all requirements of law.
IA1STOICP 02-02 - MCMLLIANTONDOS
July 29, 2002
Page 4
5. The Developer/Operator shall and does hereby agree to indemnify, protect, defend and
hold harmless the City of Carlsbad, its Council members, officers, employees, agents,
and representatives, from and against any and all liabilities, losses, damages, demands,
claims and costs, including court costs and attorney's fees incurred by the City arising,
directly or indirectly, from (a) City's approval and issuance of this Condominium
Permit, (b) City's approval or issuance of any permit or action, whether discretionary or
non-discretionary, in connection with the use contemplated herein, and (c)
Developer/Operator's installation and operation of the facility permitted hereby,
including without limitation, any and all liabilities arising from the emission by the
facility of electromagnetic fields or other energy waves or emissions.
6. The Developer shall submit to the Planning Director a reproducible 24" x 36", mylar
copy of the Tentative Parcel Map/Condominium Site Plan reflecting the conditions
approved by the final decision making body prior to Final Map approval of MS 02-02.
7. The Developer shall include, as part of the plans submitted for any permit plan check, a
reduced legible version of all approving resolution(s) in a 24" x 36" blueline drawing
format.
8. Prior to the issuance of a building permit, the Developer shall provide proof to the
Director from the School District that this project has satisfied its obligation to provide
school facilities.
9. This project shall comply with all conditions and mitigation measures which are required
as part of the Zone 1 Local Facilities Management Plan and any amendments made to
that Plan prior to the issuance of building permits.
10. This approval is granted subject to the approval of CDP 02-02 and MS 02-02 and is
subject to all conditions contained in CDP 02-02 and MS 02-02 which are incorporated
herein by reference and shall be complied with in their entirety.
11. This project is being approved as an air space condominium. There will be no
individual ownership of land. A note to this effect shall be placed on the final map
with the exact wording to the satisfaction of the Planning Director.
12. The Developer shall submit to the Planning Director a recorded copy of the
condominium plan filed with the Department of Real Estate which is in
conformance with the City approved documents and exhibits prior to building
permit issuance.
13. Building permits will not be issued for this project unless the local agency providing
water and sewer services to the project provides written certification to the City that
adequate water service and sewer facilities, respectively, are available to the project at
the time of the application for the building permit, and that water and sewer capacity and
CP 02-02 - MCMLLLIANTONDOS
July 29, 2002
Page 5
facilities will continue to be available until the time of occupancy. A note to this effect
shall be placed on the Final Map.
14. At issuance of building permits, or prior to the approval of a final map and/or issuance of
certificate of compliance for the conversion of existing apartments to air-space
condominiums, the Developer shall pay to the City an inclusionary housing in-lieu fee as
an individual fee on a per market rate dwelling unit basis in the amount in effect at the
time, as established by City Council Resolution from time to time.
15. The Developer shall establish a homeowner's association and corresponding covenants,
conditions and restrictions. Said CC&Rs shall be submitted to and approved by the
Planning Director prior to final map approval. Prior to issuance of a building permit the
Developer shall provide the Planning Department with a recorded copy of the official
CC&Rs that have been approved by the Department of Real Estate and the Planning
Director. At a minimum, the CC&Rs shall contain the following provisions:
A. General Enforcement by the City. The City shall have the right, but not the
obligation, to enforce those Protective Covenants set forth in this Declaration in
favor of, or in which the City has an interest.
B. Notice and Amendment. A copy of any proposed amendment shall be provided to
the City in advance. If the proposed amendment affects the City, City shall have
the right to disapprove. A copy of the final approved amendment shall be
transmitted to City within 30 days for the official record.
C. Failure of Association to Maintain Common Area Lots and Easements. In the
event that the Association fails to maintain the "Common Area Lots and/or the
Association's Easements" as provided in Article , Section
the City shall have the right, but not the duty, to perform the necessary
maintenance. If the City elects to perform such maintenance, the City shall give
written notice to the Association, with a copy thereof to the Owners in the Project,
setting forth with particularity the maintenance which the City finds to be
required and requesting the same be carried out by the Association within a
period of thirty (30) days from the giving of such notice. In the event that the
Association fails to carry out such maintenance of the Common Area Lots and/or
Association's Easements within the period specified by the City's notice, the City
shall be entitled to cause such work to be completed and shall be entitled to
reimbursement with respect thereto from the Owners as provided herein.
D. Special Assessments Levied bv the City. In the event the City has performed the
necessary maintenance to either Common Area Lots and/or Association's
Easements, the City shall submit a written invoice to the Association for all costs
incurred by the City to perform such maintenance of the Common Area Lots and
or Association's Easements. The City shall provide a copy of such invoice to
each Owner in the Project, together with a statement that if the Association fails
to pay such invoice in full within the time specified, the City will pursue
lA^mDiCP 02-02 - MCMILLIANTONDOS
July 29, 2002
Page 6
collection against the Owners in the Project pursuant to the provisions of this
Section. Said invoice shall be due and payable by the Association within twenty
(20) days of receipt by the Association. If the Association shall fail to pay such
invoice in full within the period specified, payment shall be deemed delinquent
and shall be subject to a late charge in an amount equal to six percent (6%) of the
amount of the invoice. Thereafter the City may pursue collection from the
Association by means of any remedies available at law or in equity. Without
limiting the generality of the foregoing, in addition to all other rights and
remedies available to the City, the City may levy a special assessment against the
Owners of each Lot in the Project for an equal prorata share of the invoice, plus
the late charge. Such special assessment shall constitute a charge on the land and
shall be a continuing lien upon each Lot against which the special assessment is
levied. Each Owner in the Project hereby vests the City with the right and power
to levy such special assessment, to impose a lien upon their respective Lot and to
bring all legal actions and/or to pursue lien foreclosure procedures against any
Owner and his/her respective Lot for purposes of collecting such special
assessment in accordance with the procedures set forth in Article of this
Declaration.
E. Landscape Maintenance Responsibilities. The HOAs and individual lot or unit
owner landscape maintenance responsibilities shall be as set forth in Exhibit .
16. This project is being approved as a condominium permit for residential homeownership
purposes. If any of the units in the project are rented, the minimum time increment for
such rental shall be not less than 26 days. The CC&Rs for the project shall include this
requirement.
17. The developer shall submit to the Planning Director a recorded copy of the Condominium
Plan which is in conformance with the City approved documents and exhibits.
18. Prior to Final Map Recordation, Developer shall submit to the City a Notice of
Restriction to be filed in the office of the County Recorder, subject to the satisfaction of
the Planning Director, notifying all interested parties and successors in interest that the
City of Carlsbad has issued a Condominium Permit, file No. CP 02-02 -
MCMILLIAN CONDOS on the real property owned by the Developer. Said Notice of
Restriction shall note the property description, location of the file containing complete
project details and all conditions of approval as well as any conditions or restrictions
specified for inclusion in the Notice of Restriction. The Planning Director has the
authority to execute and record an amendment to the notice which modifies or terminates
said notice upon a showing of good cause by the Developer or successor in interest.
lAJTOtfCP 02-02 - MCMILLIANTDNDOS
July 29, 2002
Page?
STANDARD CODE REMINDERS
Fees
19. The Developer shall pay park-in-lieu fees to the City, prior to the approval of the final
map as required by Chapter 20.44 of the Carlsbad Municipal Code.
20. Developer shall pay the License Tax on new construction imposed by Carlsbad
Municipal Code Section 5.09.030, and CFD #1 special tax (if applicable), and the
Citywide Public Facilities Fee imposed by City Council Policy #17, subject to any credits
authorized by Carlsbad Municipal Code Section 5.09.040. Developer shall also pay any
applicable Local Facilities Management Plan fee for Zone 1, pursuant to Chapter 21.90.
All such taxes/fees shall be paid at issuance of building permit. If the taxes/fees and not
paid, this approval will not be consistent with the General Plan and shall become void.
Final Map Notes
21. A note shall be placed on the Final Map stating that building permits will not be issued
for this project unless the local agency providing water and sewer services to the project
provides written certification to the City that adequate water service and sewer facilities,
respectively, are available to the project at the time of the application for the building
permit, and that water and sewer capacity and facilities will continue to be available until
the time of occupancy.
General
22. Approval of this request shall not excuse compliance with all applicable sections of the
Zoning Ordinance and all other applicable City ordinances in effect at time of building
permit issuance, except as otherwise specifically provided herein.
23. All roof appurtenances, including air conditioners, shall be architecturally integrated and
concealed from view and the sound buffered from adjacent properties and streets, in
substance as provided in Building Department Policy No. 80-6, to the satisfaction of the
Directors of Community Development and Planning.
24. Addresses, approved by the Building Official, shall be placed on all new and existing
buildings so as to be plainly visible from the street or access road; color of identification
and/or addresses shall contrast to their background color, as required by Carlsbad
Municipal Code Section 18.04.320.
25. This approval shall become null and void if building permits are not issued for this
project within 18 months from the date of project approval.
CP 02-02 - MCMILLIAN^RNDOS
July 29,2002
Page 8
NOTICE
Please take NOTICE that approval of your project includes the "imposition" of fees,
dedications, reservations, or other exactions hereafter collectively referred to for convenience as
"fees/exactions."
You have 90 days from date of final approval to protest imposition of these fees/exactions. If
you protest them, you must follow the protest procedure set forth in Government Code Section
66020(a), and file the protest and any other required information with the City Manager for
processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition.
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
If you have any further questions, please call Greg Fisher in the Planning Department at (760)
602-4629.
Sincerely,
MICHAEL J. HOLZMILLER
Planning Director
GF:jt
Attachment
c: David Rick
Chris DeCerbo
Bobbie Hoder
File Copy
Data Entry