HomeMy WebLinkAboutCP 05-21; Cazadero Homes; Condo Permit (CP) (3)Recording Requested By:
When Recorded Mail To: RECEIVED
CAZADERO HOMES, INC.
C/O CCI
7777 ALVARADO RD #615
LA MESA CA 91941
MAY n 2006
CITY OF CARLSBAD
PLANNING DEPT
SPACE ABOVE FOR RECORDER'S USE
Index as "CCR's" and "Subordination Agreement"
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
'2817 & 2819 CAZADERO DRIVE"
2817 & 2819 CAZADERO DRIVE
DRAFT DECLARATION A dec cazaderodr.doc
TABLE OF CONTENTS
1. RECITALS
2. DEFINITIONS
2.1. ACCESS EASEMENT 2
2.2. APPLICABLE LAW 2
2.3. ASSOCIATION 2
2.4. CITY 2
2.5. COMMON AREA 2
2.6. COMMON EXPENSES 3
2.7. CONDOMINIUM 3
2.8. CONDOMINIUM PLAN; PLAN 3
2.9. DECLARANT 3
2.10. DECLARATION 3
2.11. DOCUMENTS 4
2.12. DWELLING 4
2.13. ELIGIBLE INSURER OR GUARANTOR 4
2.14. ELIGIBLE MORTGAGE HOLDER 4
2.15. EMERGENCY 4
2.16. ENTRY NOTICE 4
2.17. EXCLUSIVE USE COMMON AREA 5
2.18. FAMILY 5
2.19. FHA 5
2.20. FHLMC 5
2.21. FNMA 5
2.22. FIRST MORTGAGE 5
2.23. FIRST MORTGAGEE 5
2.24. FRACTIONAL INTEREST 5
2.25. GENERAL UTILITY EASEMENTS 6
2.26. GROUND ELEVATION 6
2.27. IMPROVEMENT 6
2.28. INVITEE 6
2.29. MEMBER 6
2.30. MORTGAGE 6
2.31. MORTGAGEE 6
2.32. MORTGAGOR 6
2.33. OWNER 6
2.34. PROJECT 7
2.35. PROPERTY 7
2.36. PURCHASER; RETAIL BUYER 7
2.37. SHARED DRAINAGE FACILITIES 7
2.38. SHARED RESPONSIBILITY(IES) 7
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2.39. SHARED UTILITY FACILITIES; SHARED UTILITY SYSTEMS 7
2.40. UNIT 7
2.41. VA 8
3, DIVISION OF PROPERTY AND CREATION OF PROPERTY
RIGHTS 8
3.1. DIVISION OF PROPERTY 8
3.1.1. UNITS 8
3.1.2. COMMON AREAS 8
3.1.3. EXCLUSIVE USE COMMON AREAS 9
3.1.4. CONSTRUCTION, RECONSTRUCTION, REMODELING 9
3.2. NO SEPARATE CONVEYANCE OF UNDIVIDED INTERESTS 9
3.3. PARTITION PROHIBITED; POWER OF ATTORNEY 9
3.4. RESTRICTIONS ON FURTHER SUBDIVISION 10
3.5. ASSOCIATION 10
3.6. FREQUENCY OF ASSOCIATION MEETINGS 10
3.7. AUTHORITY TO EXECUTE CONTRACTS 10
4, RESPONSIBILITY OF MAINTENANCE 10
4.1. OWNERS' RESPECTIVE MAINTENANCE, REPAIR AND
REPLACEMENT RESPONSIBILITIES 11
4.2. OWNERS' MAINTENANCE (ONLY) RESPONSIBILITIES OF SHARED
RESPONSIBILITIES 11
4.3. SHARED RESPONSIBILITIES 11
4.3.1. PARTY WALL 11
4.3.2. ACCESS EASEMENT 12
4.3.3. SEWER LATERALS 12
4.3.4. SHARED DRAINAGE FACILITIES 12
4.3.5. OTHER AREAS 12
4.4. PAYMENT FOR COSTS OF SHARED RESPONSIBILITIES 12
4.5. LANDSCAPE/HARDSCAPE MAINTENANCE 13
4.6. TAXATION 13
4.7. ANNUAL BUDGET; ALLOCATION OF COMMON EXPENSES 13
4.8. ENFORCEMENT; DISPUTE 13
4.9. PERSONAL LIABILITY OF OWNER 13
4.10. USE OF LICENSED CONTRACTORS; WORKFORCE; PERMITS 14
5, USE RESTRICTIONS 14
5.1. SINGLE FAMILY USE 14
5.2. LEASE OF UNITS 14
5.3. INSURABILITY 14
5.4. GARBAGE AND REFUSE DISPOSAL; WOOD AND STORAGE PILES. .14
5.5. CLOTHES LINES 14
5.6. CAR MAINTENANCE AND POWER EQUIPMENT 15
5.7. GARAGES 15
5.8. GUEST PARKING SPACE 15
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5.9. EXTERIOR LIGHTING 15
5.10. OFFENSIVE ACTIVITIES AND CONDITIONS 15
6^ UTILITIES: EASEMENTS 15
6.1. OWNERS RIGHTS AND DUTIES 15
6.2. EASEMENTS FOR UTILITIES AND MAINTENANCE 16
6.2.1. POWER TO CONVEY EASEMENTS 16
6.2.2. CERTAIN RECIPROCAL EASEMENTS 16
6.2.3. EASEMENTS TO PERFORM PROJECT DOCUMENT
DUTIES ..17
6.3. EASEMENTS TO OTHERS 17
6.4. ENCROACHMENT EASEMENTS 17
6.5. DRAINAGE & SLOPES 18
6.6. ACCESS EASEMENTS 18
6.7. COMMENCEMENT OF EASEMENTS 18
L RIGHTS OF MORTGAGEES 19
7.1. GENERAL 19
7.2. NO RIGHT OF FIRST REFUSAL 19
7.3. UNPAID DUES OR CHARGES 19
7.4. ACTION REQUIRING MORTGAGEE APPROVAL 19
7.5. PRIORITY OF INSURANCE PROCEEDS DISTRIBUTION 20
7.6. NOTIFICATION TO MORTGAGEE 20
7.7. NONCURABLE BREACH 20
7.8. LOAN TO FACILITATE 20
8, INSURANCE: DAMAGE OR DESTRUCTION:
CONDEMNATION 21
8.1. INDIVIDUAL INSURANCE 21
8.2. ALTERNATIVE ASSOCIATION-MAINTAINED INSURANCE 21
8.3. DAMAGE OR DESTRUCTION - UNIT IMPROVEMENTS 21
8.4. CONDEMNATION 22
9. ENFORCEMENT 22
9.1. TERM 22
9.2. ENFORCEMENT AND NON-WAIVER 22
9.3. PROCEDURE FOR ENFORCEMENT BY PARTIES 22
9.4. DECLARANT-RELATED DISPUTE RESOLUTION 23
9.4.1. NOTICE OF ACTIONS AGAINST DECLARANT 23
9.4.2. ALTERNATIVE DISPUTE RESOLUTION 23
9.4.3. NOTICE AND OPPORTUNITY TO CURE 23
9.4.4. GENERAL RULES (Real Estate Commissioners'
Regulation §2791.8) 24
(A) FEE TO INITIATE RESOLUTION PROCESS 24
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(B) PAYMENT OF FEES 24
(C) NEUTRAL, IMPARTIAL FACILITATOR 24
(D) TIMELY APPOINTMENT OF OVERSEER.... 24
(E) VENUE 24
(F) COMMENCEMENT AND TIMING 25
(G) FAIR AND REASONABLE RULES AND
PROCEDURES 25
(H) PROMPT ISSUANCE OF DECISION OR RULING ..25
(I) REMEDIES AVAILABLE TO RESOLUTION
FACILITATOR 25
(J) PUNITIVE DAMAGES 25
(K) JUDICIAL REMEDY 25
9.4.5. DECLARANT RESOLUTION PROCESS 25
(A) NOTICE 25
(B) RIGHT TO INSPECT AND RIGHT TO
CORRECTIVE ACTION 26
(C) CIVIL CODE SECTIONS 1368.4, 1375, 1375.05
AND 1375.1 26
(D) MEDIATION 26
(E) POSITION MEMORANDA; PRE-MEDIATION
CONFERENCE 26
(F) CONDUCT OF MEDIATION 27
(G) EXCLUSION AGREEMENT 27
(H) PERSONS PERMITTED AT SESSIONS 27
(I) EXPENSES 28
9.4.6. ARBITRATION 28
(A) FEDERAL ARBITRATION ACT 28
(B) WAIVER OF LITIGATION AND APPEAL 28
(C) GENERAL ARBITRATION PROVISIONS 28
(D) ADDITIONAL RULES APPLICABLE TO CERTAIN
CASES 30
9.4.7. SEVERABIUTY 30
9.4.8. EXCEPTIONS TO MEDIATION AND ARBITRATION;
STATUTES OF LIMITATION 31
9.4.9. SURVIVAL; SUCCESSORS AND ASSIGNS 31
9.5. MISCELLANEOUS PROVISIONS REGARDING ENFORCEMENT AND
LEGAL ACTION 31
9.5.1. FAILURE TO ENFORCE 31
9.5.2. VIOLATION OF LAW 31
9.5.3. GOVERNING LAW 31
10, GENERAL PROVISIONS 31
10.1. INVALIDITY OF ANY PROVISION 31
10.2. AMENDMENTS 32
10.3. INCORPORATION 32
10.4. TERM AND EXTENSION OF DECLARATION 32
10.5. LITIGATION 32
10.6. OWNER'S COMPLIANCE 32
10.7. NOTICE 33
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10.8. SINGULAR INCLUDES PLURAL 33
10.9. LIBERAL CONSTRUCTION 33
10.10. EASEMENTS RESERVED AND GRANTED 33
10.11. CIVIL CODE SECTION 1368 33
IL CITY REQUIREMENTS 33
EXHIBIT "A" - LEGAL DESCRIPTION 36
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THIS DECLARATION is made on the day and year hereinafter written, by CAZADERO
HOMES, INC., A CALIFORNIA CORPORATION, hereafter called "Declarant " The first-letter
capitalized words used herein shall have the meanings given them in Article 2 herein. This
Declaration is made with reference to the following:
1. RECITALS
A. Declarant is the Owner of the real property located in the City of Carisbad,
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 "Property."
B. Declarant desires to establish certain covenants, conditions and restrictions upon
the Property and each and every portion thereof, which will constitute a general scheme for the
use and management of the Property as a residential community called 2817 & 2819
CAZADERO ORIVE ("Community"); and for the purpose of enhancing and protecting the value,
desirability and attractiveness of the Property and the quality of life for the Owners and
occupants thereof
C. Declarant has or will hereafter file a Condominium Plan (or "Plan") pursuant to
Civil Code Section 1351(e) with the Office of the County Recorder of San Diego County,
Califomia, covering the Properiy.
D. Declarant has or intends to develop the Property as a Common Interest
Development ("Pro/ecf"), pursuant to the provisions of the Davis-Stiriing Common Interest
Development Act (California Civil Code Section 1351 et seq.), whereby Declarant will subdivide
the Property into separate interests called "Units," each of which, however, will be similar to a
residential lot, although the Property will legally be a Condominium Project.
E. Each Unit will consist of a separate interest in space containing all of the earth,
air and improvements located within its boundaries. The lower boundary of a Unit will extend to
the center of the earth below Ground Elevation; the upper boundary of a Unit will extend
towards the heavens above Ground Elevation to a point fifty feet (50') above the highest
physical improvement. The lateral (side) boundaries of each Unit are shown on the Plan.
F. The Owner of a Unit in the Project will receive title to a Unit plus a Fractional
Interest in the Common Area. By virtue of owning a Unit in the Project, each Owner shall also
have a membership in the 2817 & 2819 CAZADERO DRIVE OWNERS ASSOCIATION, an
unincorporated association {"Association"), organized with the powers granted to a
corporation under the Nonprofit Mutual Benefit Corporation Law (Califomia Corporations Code
Sections 7110 et seq.), which membership shall be appurtenant to and pass with title to the
Unit. The Association shall act as the management body for the Community, as necessary, and
shall be responsible for, but not limited to, the operation, maintenance and control of the
Access Easement Area(s) and the Common Area, as more fully described in this Declaration
and any related Project Documents.
G. Before selling or conveying any interests in the Property, Declarant desires to
subject the Property in accordance with a common plan to certain covenants, conditions and
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restrictions for the benefit of Declarant and any and all present and future Owners of the
Property or any portion thereof.
H. "Airport Influence Area" - This property may be located in the vicinity of an
airport or heliport within what is known as an airport influence area. For that reason, the
property may be subject to some of the annoyances or inconveniences associated with
proximity to airport operations (for example: noise, vibration or odors). Individual sensitivities to
those annoyances, if any, are associated with the property before you complete your purchase
and determine whether they are acceptable to you.
NOW, THEREFORE, Declarant hereby certifies and declares and does hereby establish
the following general plan for the protection and benefit of all of the Property and does hereby
fix the following protective conditions and restrictions upon each and every ownership interest in
the Property, under which said conditions and restrictions, each ownership interest in the
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 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.
2, DEFINITIONS
2.1. ACCESS EASEMENT.
"Access Easement" shall mean and refer to that right-of-way over and through
each Unit for ingress, egress and access shown on the Plan as Access Easement," more
particuiariy described in the "£aseme/iis" Article herein.
2.2. APPLICABLE LAW.
"Applicable Law(s)" shall mean and refer to any law, regulation, rule, order or
ordinance now in effect or as hereafter promulgated, of any governmental or
quasi-governmental entity having legal jurisdiction, applicable to the Units or the Project or any
portion thereof, or the use or occupancy thereof.
2.3. ASSOCIATION.
"Association" shall mean and refer to the 2817 & 2819 CAZADERO DRIVE
OWNERS ASSOCIATION, an unincorporated association described in the Section hereinafter
entitled "ASSOCIATION," the members ofwhich are the Owners ofthe Units.
2.4. CITY.
"City" shall mean and refer to the City of Carisbad, a municipal corporation
located in the County of San Diego, State of California.
2.5. COMMON AREA.
"Common Area" shall mean and refer to the area described herein and shown on
the Plan (Sheet 5 of 5 Sheets), upon the conveyance by Declarant of the first Fractional
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Interest therein to a Person. The Common Area shall be owned by the respective Unit Owners
as an appurtenance to their respective Units, as tenants-in-common in equal, undivided
fractional interests.
The Common Area consists exclusively of airspace and does not include any
earth or physical improvements. The lower limit of the Common Area extends from a horizontal
plane beginning from an elevation point that is fifty feet (50.00') above the highest physical
improvement upwards to the heavens, the lateral boundaries of the Common Area are vertical
planes at the limits of the horizontal dimensions of the Property.
2.6. COMMON EXPENSES.
"Common Expenses" means and includes the actual and estimated expenses of
operating the Project, if any, including any real property taxes, assessments (including reserves)
or insurance premiums which are not charged separately to each Unit and any other sums
designated to be a common expense by or pursuant to the Documents.
2.7. CONDOMINIUM.
"Condominium" shall mean and refer to an estate in the Property, or portions
thereof, as defined in Califomia Civil Code Section 1351(f), or any similar statute hereinafter
enacted, and shall consist of (i)a Separate Interest in space called a "Unit" and (ii) an
appurtenant Fractional Interest in the "Common Area" as described in the Plan.
2.8. CONDOMINIUM PLAN; PLAN.
"Condominium Plan" and/or "Plan" shall mean and refer to a Condominium
Condominium Plan, as it may from time to time be amended, consisting of (1) a description or
survey map of the Project, which shall refer to or show monumentation on the ground, (2) a
three-dimensional description of the Project, as built or to be built, one or more dimensions of
which may extend for an indefinite distance upwards or downwards, in sufficient detail to identify
the common areas and each separate interest, and (3) a certificate consenting to the
recordation of the Plan pursuant to California Civil Code Section 1351(e), signed and
acknowledged by the record owner of fee title to the Property included in the Project.
2.9. DECLARANT.
"Declarant" shall mean and refer to CAZADERO HOMES, INC., A CALIFORNIA
CORPORATION, Its respective successors and assigns, if such successors or assigns acquire
any or all of the Declarant's interest in the Property for the purpose of development or sale. 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 beneficiaiy has acquired any such property by foreclosure, power of sale or
deed in lieu of such foreclosure of sale.
2.10. DECLARATION.
"Declaration" shall mean and refer to this Declaration recorded with the Office of
the County Recorder of San Diego County, Califomia, covering the Property, including such
amendments thereto as may from time to time be recorded.
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2.11. DOCUMENTS.
"Documents" means and includes this Declaration, Plan, the exhibits, if any,
attached hereto, and any rules and regulations for the members as established from time to
time.
2.12. DWELLING.
"Dwelling" shall mean and refer to a single ^mily residential structure including
any attached or detached garage or structure which is located within the boundaries of a Unit.
2.13. ELIGIBLE INSURER OR GUARANTOR.
"Eligible Insurer or Guarantor" shall mean and refer to an insurer or govemmental
guarantor who has provided a written request to the Association, to be notified of those matters
which such holder is entitled to notice of by reason of this Declaration. Such notice must
contain the Unit number or the address ofthe secured Unit.
2.14. ELIGIBLE MORTGAGE HOLDER.
"Eligible Mortgage Holder" shall mean and refer to the holder of a first mortgage
or deed of trust on a Unit, who has provided a written request to the Association, to be notified
of those matters which such holder is entitled to notice of by reason of this Declaration. Such
noticie must contain the Unit number or the address ofthe secured Unit.
2.15. EMERGENCY.
"Emergency" is an unforeseen occurrence or condition calling for immediate
action to avert imminent danger to life, health, or property.
2.16. ENTRY NOTICE.
"Entry Notice" shall mean and refer to the type of notice one Owner (the
"Enten'ng OwneO >s required to give to another Owner to enter upon such other Owner's
exterior Unit area not located within the Access Easement when necessary for purposes of
pert'orming such maintenance, repair and/or replacement of Improvements owned by the
Entering Owner and which require access from the Non-Entering Owner's Unit or for which the
Entering Owner nriay be obligated. Such Errtry Notice shall consist of and be given as follows:
Except in the case of an Emergency, in which case no prior notice need be given
to enter any of the following areas of a Unit, for routine inspection purposes, the Entering Owner
shall fumish the other Owner or such other Owner's Invitee with at least forty-eigitt (48) Iiours
written notice of its intent to enter the 8' SDG&E Easement and/or to access any Exclusive Use
Common Area(s)," which notice shall specify the purpose and scheduled time of such entry.
The Entering Owner may alternatively communicate its request of entry by telephone or in
person, and, in which case, an Owner may grant such entry to the Entering Owner or its Invitee
prior to the conclusion of the forty-eight hour written notice period. The Entering Owner or its
authorized Invitee shall make every reasonable effort to schedule the time of entry, to effect
entry and perform its work in a manner that respects the privacy of the persons residing within
the other Owner's Dwelling. In no event shall the Entering Owner's right of entry, as conferred
hereunder, be construed to permit the Entering Owner or its Invitees to enter the other Owner's
Dwelling without the other Owner's prior permission (this permission shall extend to the tenant
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of such other Owner). Any damage caused by the Entering Owner or its Invitees to the other
Owner's Improvements shall be promptly repaired as an expense of the Entering Owner. The
Entering Owner and/or its authorized Invitee shall not be deemed guilty of trespass by reason of
entry into the other Owner's Private Unit Area.
2.17. EXCLUSIVE USE COMMON AREA.
"Exclusive Use Common Area" shall mean and refer to such items as, but not
limited to, internal and extemal telephone & television wiring and other utility installations
(conduit, pipe, wiring, etc.) providing gas, electric and water service, sewage and drainage
systems, if any of the foregoing are designed to serve a single Unit, but is located outside the
boundaries of such Unit.
2.18. FAMILY.
"Family" shall mean and refer to (a) one or more natural persons related to each
other by marriage, ancestry, adoption or affinity, or (b) one or more natural persons not all so
related, or who have a commitment to and/or a unique identity with each other and who
maintain a common household in a Residence.
2.19. FHA.
"FHA" shall mean and refer to the Federal Housing Administration of the United
States Department of Housing and Urban Development, including any successors thereto.
2.20. FHLMC.
"FHLMC" shall mean and refer to the Federal Home Loan Mortgage Corporation.
2.21. FNMA.
"FNMA" shall mean and refer to the Federal National Mortgage Association.
2.22. FIRST MORTGAGE.
"First Mortgage" shall mean and refer to a First Deed of Trust as well as a First
Mortgage.
2.23. FIRST MORTGAGEE.
"First Mortgagee" shall mean and refer to the Mortgagee of a First Mortgage as
well as to a Beneficiary under a Deed of Trust defined herein as a First Mortgage.
2.24. FRACTIONAL INTEREST
"Fractional Interest" shall mean and refer to each equal undivided fractional
interest as tenant-in-common in the Common Area appurtenant to each Unit owned by an
Owner.
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2.25. GENERAL UTILITY EASEMENTS.
"General Utility Easements" shall mean and refer to those right-of-ways over and
through each Unit for ingress, egress and access shown on the Plan more particularly
described in the "Easwnents" Atiicle herein.
2.26. GROUND ELEVATION.
"Ground Elevation" shall mean and refer to the finish grade of the Property. The
Plan depicts certain Ground Elevation points within the Property by symbols referenced thereon.
2.27. IMPROVEMENT.
"Improvemenf shall mean and refer to all structures and appurtenances thereto
of every type and kind, including, but not limited to: the Dwelling, patios, patio covers, awnings,
gazebos, paintings of any exterior surfaces of any structure, walkways, fences, walls, retaining
walls, stairs, landscaping, windbreaks, poles, masts, antennas, or equipment.
2.28. INVITEE.
"Invitee" shall mean and refer to any person whose presence within the Project is
approved by or is at the request of a particular Owner, including, but not limited to, contractor
and subcontractor agents of an Owner or tenant, lessees, tenants and the family, guests,
employees, licensees or invitees of Owners, tenants or lessees.
2.29. MEMBER.
"Member" shall mean and refer to a person entitled to membership in the
Associatton as provided within this DeclaiBtron.
2.30. MORTGAGE.
"Mortgage" shall mean and refer to a deed of trust as well as a mortgage
encumbering a Unit.
2.31. MORTGAGEE.
"Mortgagee" shall mean and refer to a beneficiary or a holder of a deed of trust
as well as a mortgagee.
2.32. MORTGAGOR.
"Mortgagor" shall mean and refer to the trustor of a Deed of Trust as well as a
mortgagor.
2.33. OWNER.
"Owner" shall mean and refer to the record Owner, whether one (1) or more
persons or entities, of any Unit, including contract buyers but excluding those having such
interest merely as security for the performance of an obligation.
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2.34. PROJECT.
"Project" shall mean and refer to the Property, including all Units and all
structures and improvements erected or to be erected thereon.
2.35. PROPERTY.
"Property" shall mean and refer to that certain real property located in the City of
Carisbad, County of San Diego, California, more particuiariy described on Exhibit "A" attached
hereto.
2.36. PURCHASER; RETAIL BUYER
"Purchaser" shall mean and refer to a Person who purchases a Unit from
Declarant for purposes of ownership and use thereof.
2.37. SHARED DRAINAGE FACILITIES.
"Share Drainage Facililties" shall mean and refer to (a) those area drains which
run along the surfece of the Property ("Area Drains"); and (b) those subterranean drains ("Sub
Drains") below the Property surface..
2.38. SHARED RESPONSIBILITY(IES).
"Shared Responsibility(ies)" shall mean and refer to the mutual responsibility and
obligation of the Owners for the repair and/or replacement of certain Improvements within the
Project which serve or are used by or are intended for service and/or use by both such Owners,
and not by only one Owner. Such Responsibilities may include, but not be limited to: (a) a Party
Wall (fencing along shared Unit demising line), (b) shared driveway Improvements located
within the Access Easement, (c) Shared Drainage Facilities; (c) Shared Utility Facilities; and
(d) such other areas, equipment, services or aesthetic components of the Project, of
whatsoever nature, as may from time to time be approved by the oiwners of all Units.
2.39. SHARED UTILITY FACILITIES; SHARED UTILITY SYSTEMS.
"Shared Utility Facilities" and/or "Shared Utility Systems" shall mean and refer,
but not be limited to: (a) those electrical, cable, computer, television, telephone and such other
utility conduits, which provide or are intended to provide such respective utilities' access from a
street or alley public or quasi-public utility feed (e.g. utility pole, underground terminus box) into
the Property to a "pull box" located at approximately the boundary between the Units; (b) such
other types of utility systems and facilities, any of the foregoing of which is or is intended to be a
shared utility access which thereafter may provide either a shared or individual utility service to
either any Improvement situated in, on, over and/or under the Property, or to an Owner or
occupant Invitee thereof.
2.40. UNIT.
"Unit" shall mean and refer to the separate interest in space in the Project which
is not owned in common with the other Owners of the other Unit in the Project. Said Units are
shown described on the Plan and are identified therein as a "Unit" and are numbered U^l and
U-2. the total number of Units is two (2). The boundaries of each Unit is the envelope of air
space as shown and described in the Plan, as further described in the Section entitled "Division
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of Property and Creation of Property Rights" hereinafter. Each Unit shall include the Dwelling
and other Improvements located within its boundaries. Each Unit shall be a separate freehold
estate.
2.41. VA.
"VA" shall mean and refer to the U.S. Department of Veterans Affairs, including
any successors thereto.
3, DIVISION OF PROPERTY AND CREATION OF PROPERTY
RIGHTS
3.1. DIVISION OF PROPERTY.
The property is divided as follows:
3.1.1. UNITS.
(a) Each of the Units as separately shown, numbered and
designated in the Plan consists of a three-dimensional division of land (including airspace,
earth, water and improvements) the lateral boundaries of which are vertical planes at the limits
of the horizontal dimensions of each such respective unit as shown on the Plan, the upper limit
of which extends from ground elevation to the heavens; and the lower limit of which extends
from ground elevation down to the center of the earth; excepting therefrom the "Common Area"
as defined herein.
(b) Included within the boundaries of each Unit are all earth,
air, water and improvements located therein, including but not limited to building structures,
walls, fences, decks, foundations and roofe, windows, doors, railings, bearing walls, columns,
floors, hot water heaters, 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, wires and other utility installations which serve another
Unit, the same pipes, wire and other such utility installations being Exclusive Use Common
Area.
(c) A Unit does not include those areas and those things
which are defined herein as "Common Area" and/or "Exclusive Use Common Area." Each Unit
is subject to encroachments, whether they now exist or may be later caused or created in any
manner referred to in the Section entitled "Easements to Others" hereinafter. In interpreting
deeds and plans, the boundaries of a Unit shall be as defined on the "Plan."
3.1.2. COMMON AREAS.
The remainder of the property constitutes and shall be referred to
herein as "Common Area" or "Common Areas," and includes, without limitation, all of the
elements set forth in Section herein entitled "Common Area." Each Owner shall have, as
appurtenant to his or her Unit, a Fractional Interest in the Common Area. Each Unit includes
such Fractional Interest in the Common Area, which shall be appurtenant to each Unit, is
permanent in character and cannot be altered without the unanimous consent of all of the
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Owners and of the Eligible Mortgage Holders of each Unit, as expressed in an amended
Declaration.
3.1.3. EXCLUSIVE USE COMMON AREAS.
Exclusive Use Common Area shall mean and refer to intemal and
extemal telephone, television and electrical wiring, gas, water and sewer lines, if any of the
foregoing are designed to serve a single Living Unit, but located outside the boundaries of such
Unit.
3.1.4. CONSTRUCTION, RECONSTRUCTION, REMODELING.
(a) Each Owner shall have the right, subject to Applicable
Law, to construct or reconstruct a Dwelling, or add on to an existing Dwelling. Only one (1)
Dwelling may be constructed within each Unit Any deviation from the provisions of this Section
must be authorized in writing by one hundred percent (100%) ofthe Owners.
(b) Under City zoning regulations, each lot must comply with
the "Floor Area Ratio" ("FAR") requirements as to the size and locatbn of the Dwelling(s)
thereon. Each Owner shall have the right to one-half (1/2) of the remaining buildable area
under the FAR, if any. Any Owner applying for approval to add additional square footage over
and above that which now exists shall have the obligation to have the existing square footage of
all structures on the lot calculated by a licensed architect or engineer based on a fomiula
acceptable to the City for this purpose. Each Owner will cooperate in such a way to allow this
calculation to be made.
3.2. NO SEPARATE CONVEYANCE OF UNDIVIDED INTERESTS.
(a) The foregoing interests are hereby established and are to be conveyed
with the respective Units as indicated above, cannot be changed, except as herein set forth.
Declarant its successors, assigns and grantees covenant and agree that the interest in the
Common Areas 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.
(b) Any dispute arising as to the above Section 3.1 shall be resolved in
accordance with Article 9 entitled "Enforcement; Dispute Resolution" herein.
3.3. PARTITION PROHIBITED; POWER OF ATTORNEY.
Each of the Owners of a Unit, 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 Property, except upon the
showing that such partition is consistent with the requirements of California Civil Code Section
1359, or any successor statute. The Association is hereby granted an irrevocable power of
attomey to sell the Property for the benefit of all the Owners thereof when partition of the
Owners' interests in said Property may be had pursuant to Civil Code Section 1359. The power
of attorney herein granted may be exercised upon the vote or written consent of One-Hundred
Percent (100%) of the Owners who may authorize any two (2) Members of the Association to
act on behalf of the Association to record a certificate of exercise in the Office of the County
Recorder of San Diego County, which certificate shall be conclusive evidence thereof in favor of
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any person relying thereon in good faith; provided, however, that said power of attomey shall
not apply to the Secretary of the U.S. Department of Veterans Affairs.
3.4. RESTRICTIONS ON FURTHER SUBDIVISION.
No Unit shall be further subdivided nor shall less than all of any such Unit be
conveyed by an Owner thereof: provided, however, that nothing in this Section shall be deemed
to prevent an Owner, including Declarant, from adjusting the boundary of a Unit by amendment
to the Plan.
3.5. ASSOCIATION.
(a) Each Owner automatically shall be a member of the Association.
Membership shall be appurtenant to and may not be separated from ownership of any Unit.
Membership in the Association shall not be transferred, pledged or alienated in any way, except
upon the sale of the Unit to which it is appurtenant, and then only to the purchaser. The transfer
of title to a Unit or the sale of a Unit and transfer of possession thereof to the purchaser shall
automatically transfer the membership appurtenant to such Unit to the transferee.
(b) The Association shall have one class of voting membership. Each
membership entitles the holder to one (1) vote for each Unit ofwhich he or she is record owner.
If a Unit is owned by more than one person, each such person shall be a member of the
Association, but there shall be no more than one (1) vote for each Unit.
The foregoing explanation of membership and voting rights is provided should an
unanticipated event occur.
3.6. FREQUENCY OF ASSOCIATION MEETINGS.
It is not anticipated or contemplated that the Association will ever require
meetings of the membership. Should an unanticipated situation occur, the Association may
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.
3.7. AUTHORITY TO EXECUTE CONTRACTS.
The Association may, by a writing signed by all of the memt)ers 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.
4, RESPONSIBILITY OF MAINTENANCE
For purposes of this Article the term "maintenance" shall mean the periodic (but not less
than once monthly) policing, cleaning, sweeping and, where appropriate, washing of the
Improvements set forth herein so to provide for a clean, safe and sanitary condition thereof
The Association shall maintain the "Common Area."
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4.1. OWNERS' RESPECTIVE MAINTENANCE, REPAIR AND
REPLACEMENT RESPONSIBILITIES.
Except for those Improvements which are Shared Responsibilities, each Owner
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, including, but not limited to:
landscaping, yards, patios, the Dwelling and any other buildings, building structural
components, exterior surfaces, doors, glass, windows, screens, metal frames, hardware, roofe
and foundations, as well as the interiors of all building structures and all appliances whether
"built-in" or ft^eestanding therein.
(b) Pest control
(c) All plumbing, heating, ventilating, cooling and electrical systems servicing
his or her Unit, the Dwelling and any other building structures therein, including television cable
equipment, wires and connections and intemal 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 another Unit(s), it shall be deemed Exclusive Use
Common Area and a Shared Responsibility).
(d) Any fences, walls or slopes, excluding any Party Wall, which shall be a
shared responsibility more fully described in Section 4.3.1 hereinafter.
(e) Any exterior lighting which is intended to illuminate the Access Easement,
the nightly operation ofwhich shall be an obligation ofthe Owner thereof.
(f) The surface of any areas used for vehicular parking.
4.2. OWNERS' MAINTENANCE (ONLY) RESPONSIBILITIES OF SHARED
RESPONSIBILITIES.
Each Owner alone shall be responsible for the maintenance and cost thereof of
that portion of any Shared Responsibility Improvements located within each such Owner's Unit
(that is, in contrast to the cost of "repair and replacement" of those same Shared Responsibility
Improvements, which shall be allocated between both Owners).
4.3. SHARED RESPONSIBILITIES.
The cost and expense of repair and replacement of the following Improvements
within the Property shall be Shared Reponsibilities between t>oth Owners - except in such
instance(s) where any such repair and/or replacement is the result of damage caused by one of
the Owners or such Owner's Invitees:
4.3.1. PARTY WALL.
The Party Wall (e.g. fence, wall, hedge, etc.) located on the
dividing line between both Units. Each Owner shall have a reciprocal non-exclusive easement
over that portion of the adjacent Owner's Unit which is immediately adjacent to such Party Wall
for the limited purpose and only to the extent necessary for such Owner and/or its Invitees to
maintain, repair and or replace such Party Wall.
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4.3.2. ACCESS EASEMENT.
The Owners of both Units shall collectively be responsible for the
repair and replacement of the Access Easements, (referred to as "Access Easement" on the
Plan) the cost and expense ofwhich shall be a Common Expense, as long as any such required
repair and/or maintenance is from normal pedestrian and/or vehicular use, and Utility
Easements, (referred to as "General Utility Easement" on the Plan), the cost and expense of
whtoh shall be borne by the Owner or Owners benefiting from the utility service requiring the
maintenance.
4.3.3. SEWER LATERALS.
Each Dwelling in the Project is sen/iced by a private sanitary
sewer system lateral which delivers waste from each Unit to the public sewer system. If any
portion of a sewer lateral is determined to be shared by both Dwellings, the Owners shall be
jointly responsible for the operation and maintenance of the private sanitary sewer system
lateral which lies within the Project. Additionally, any portion of such shared system which does
not lie within a Unit or the Project, up to the point where it connects to the public sewer system,
will be the shared responsibilify of all ofthe Owners to operate and maintain.
4.3.4. SHARED DRAINAGE FACILITIES.
The Shared Drainage Facilities, maintenance of which shall
include the periodic, but not less than once a month inspection by each Owner of the respective
Area Drains located within each such Owner's Unit in order to detemiine whether (a) any readily
removable debris has collected which might impair the flow of water run-off, in which case such
Owner shall cause the immediate removal of such debris; or (b) an obstruction of a Shared
Drainage Facility may require the services of a professional service, in which case such Owner
shall retain the services of such professional service, the cost of which shall be a Common
Expense. In addition to the foregoing, the Shared Drainage Facilities may need to be cleaned-
out annually by a professional service (such clean out may include the introduction of a high
pressure jet of water or such other clean-out as may be recommended by such professional
service).
4.3.5. OTHER AREAS.
Such other areas, facilities, equipment, services or esthetic
components of the Project, of whatsoever nature as may from time to time be approved by the
Owners of all of the Units.
4.4. PAYMENT FOR COSTS OF SHARED RESPONSIBILITIES.
The cost and expense for the repair and/or replacement of a Shared
Responsibility shall be allocated equally between the two (2) Unit Owners. Payment ofthe cost
and expense of any specific Shared Responsibility from one Owner to the other, where one
Owner has previously paid for or become indebted for any such Shared Responsibility, as the
case may be, shall be due and payable upon demand, accompanied by a copy of all applicable
documentation, including bills, receipts, contracts, or in accordance with such terms as may
othenwise be mutually agreed upon between the two (2) Owners. Any Owner may request that
any such payment of a Shared Responsibility be handled through a neutral escrow or fund
control, as may be agreed upon by the Owners; provided, however, if no such agreement is
achieved as to such neutral escrow or fund control, then any Owner may request that the then
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current President of the San Diego County Bar Association appoint a third party to serve as
such escrow (stakeholder), which may be any escrow company duly licensed by the State of
California, any attomey in San Diego County who is a member ofthe Califbmia Bar Association.
Any payment not received within ten (10) days after demand therefor, shall be delinquent and
the collection thereof may be enforced as an "Exigent Matter" in accordance with the
enforcement and cost reimbursement provisions of Section 9 herein.
4.5. LANDSCAPE/HARDSCAPE MAINTENANCE.
The individual Owners of the Units shall water and maintain the landscaping in
their respective Unit. The landscape and hardscape shall be maintained in a neat, healthy and
lush, weed free, clear-of-debris condition. Unit 2 is responsible for watering and maintenance of
landscape which runs parallel to the access easement and north fence property boundary.
4.6. TAXATION.
In the event that any taxes are assessed against the Common Area rather than
against the individual Units, said taxes shall be divided between the Owners according to the
San Diego County Tax Assessors valuation of tiie individual improvements witiiin each Unit.
Each Unit Owner shall be responsible for the taxes attributable to the improvements within their
own Unit.
4.7. ANNUAL BUDGET; ALLOCATION OF COMMON EXPENSES.
It is not anticipated or contemplated that the Association will ever need to
establish a budget. The following explanation is provided should an unanticipated event occur:
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 their portion of the budgeted expenses, and any other Common
Expenses. Each of the various Common Expense budget items may be apportioned by one of
the following nnethods as appropriate: (i) uniformly divided between the two Units; (ii) based
upon the percentage of residential square feet of each Unit to the total of both Units; or (iii) as
may be agreed upon in writing between both Owners.
4.8. ENFORCEMENT; DISPUTE.
In the event an Owner fails to pay for any tax described in Section 4.6 above, the
cost of any Shared Responsibility and/or any Common Expense for which such Owner is
obligated or otherwise liable under this Declaration, or in the event of any dispute or controversy
regarding any budget, Shared Responsibility or cost thereot Common Expense or the allocation
between the Owners of any of the foregoing, other than the enforcement of payment,
enforcement and/or resolution of any such dispute shall be undertaken pursuant to the
provisions therefor contained in Article 9 entitled "Enforcement; Dispute Resolution" herein.
4.9. PERSONAL LIABILITY OF OWNER.
No Owner may exempt himself firom personal liability for any obligation under this
Declaration, nor release the Unit owned by such Owner from any liens and charges hereof
against such Unit by waiver of the use or enjoyment of any of the Common Area or by
abandonment of such Owner's Unit.
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4.10. USE OF LICENSED CONTRACTORS; WORKFORCE; PERMITS.
All woric of repair or replacement required to be performed in the Project shall be
performed only by reputable and experienced contractors, appropriately insured and licensed.
A contractor's workforce shall be presentable at all times and all employees shall be competent
and qualified. If building or other permits are required for such work, then such permits shall be
obtained before the work is commenced.
5; 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
conrmtercial purpose except as may be allowed by local zoning ordinances.
5.2. LEASE OF UNITS.
Each Owner shall have the right to lease his or her Unit, provided that such lease
is in writing and provides that the tenant shall be bound by and obligated to the provisions of
this Declaration and the failure to comply with the provisions thereof shall be a default under the
lease.
5.3. INSURABILITY.
No Unit, or improvements situated therein shall be occupied or used for any
purpose or in any manner which shall cause the Property 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 reftise renewal thereof.
5.4. GARBAGE AND REFUSE DISPOSAL; WOOD AND STORAGE PILES.
All rubbish, trash and garijage shall be regularly removed from the Property, and
shall not be allowed to accumulate thereon. Trash, gartsage and other waste materials shall be
kept in properly covered sanitary containers in accordance with this Section. All equipment for
the storage or disposal of such materials shall be kept in a clean and sanitary condition. Each
Owner shall provide his or her own garbage can, with a lid, and shall be responsible for the cost
of removal of his or her garbage from the Property by a trash disposal company, to the extent
that such disposal is not provided by the City. All equipment, garbage cans and storage piles
shall be kept screened and/or concealed from view of the other Unit and the street. Firewood
must be neatly stacked if stored within the view of the other Unit and/or the street.
5.5. CLOTHES LINES.
No exterior clothes lines shall be erected or maintained, and there shall be no
outside drying or laundering of clothes anywhere in the Project.
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5.6. CAR MAINTENANCE AND POWER EQUIPMENT.
No car maintenance, servicing, repairing, assembling, disassembling, modifying,
restoring, other than emergency work, shall be permitted in the Project. The foregoing shall not
be deen^ to prevent the washing or polishing of motor vehicles together with those activities
normally incident to such activity. No emergency or repair work shall be permitted in any
continuous period of twenty-four (24) hours.
5.7. GARAGES.
When garages are not in use, garage doors shall be closed. Garages shall be
used in such manner that garage doors may be closed. Garages and/or parking spaces shall
not be converted into any other use (such as a storage area) that prevent its daily use for
parking the number of vehicles the garage and/or parking space was designed to contain.
5.8. GUEST PARKING SPACE.
The City requires that one (1) parking space in the Project be designated as a
"guest parking" space. The space so designated on the Plan shall be kept/maintained
exclusively for this purpose, the rules governing such use to be determined by the Board.
5.9. 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 Units.
5.10. OFFENSIVE ACTIVITIES AND CONDITIONS.
No noxious or offensive activity shall be carried in any Unit. No odor shall be
permitted to arise from any Unit which renders the Unit or any portion thereof unsanitary,
unsightly or offensive to any portion of the Project or to its occupants. No noise or other
nuisance shall be permitted to exist or operate upon any portion of a Unit (ie. the use of a loud
motorcycle, power tools, etc.) so as to be unreasonably offensive or detrimental to any other
part of the Project or to its occupants. No horns, whistles, bells or other sound devices (other
than security devices used exclusively for security purposes and sound speaker systems) which
unreasonably disturis other Owner or their tenants shall be located, used or placed in any Unit
or the Common Area. Alarm devices used exclusively to protect the security of a Dwelling and
its contents shall be permitted, provided that the devices do not produce annoying sound or
conditions as a result of frequently occurring false alarms.
6, UTILITIES: EASEMENTS
6.1. OWNERS RIGHTS AND DUTIES.
The rights and duties of the Owners of Units within the Project with respect to
sanitary sewer, water, drainage, electric, gas, television receiving, telephone equipment, cables
and line, and similar ^cilities (hereinafter referred to, collectively, as "utility facilities") shall be as
follows:
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(a) Whenever utility facilities are installed within the Property, which utility
facilities or any portion thereof lie in or upon a Unit owned by other than the Owner of a Unit
served by said utility facilities, the owners of any Unit served by said utility facilities shall,
subject to Entry Notice, have the right, and are hereby granted an easement to the full extent
necessary therefor, to enter upon the Unit(s) or to have the utility companies enter upon the
Unit(s) in or upon which said utility facilities, or any portion thereot lie. to repair, replace and
generally maintain said utility facilities as and when necessary.
(b) Whenever utility facilities are installed within the property which utility
facilities serve more than one (1) Unit, the Owner of each 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 or her Unit.
(c) The water, gas, electricity, sewer and other utilities 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. EASEMENTS FOR UTILITIES AND MAINTENANCE.
6.2.1. POWER TO CONVEY EASEMENTS.
For so long as Declarant owns one or more Units in the Project,
Declarant shall have the power to grant and convey in the name of and as attorney-in-fact for
the Association and/or any and all Owners, such easements and rights-of-way as may hereafter
be required or needed to service the Property or any portion thereot in> on, over or under the
Property to any Owner or other party, for purposes of constructing, erecting, operating or
maintaining lines, cables, wire, conduits or other devices for electricity, cable or master antenna
television, power, telephone, computer and other purposes, as well as for public sewers, storm
water drains and pipes, water systems, sprinkler systems, water, heating and gas lines or pipes,
and any similar public or quasi-public improvements or facilities. Upon conveyance of the first
Unit in the Property to a Purchaser, the Association shall additionally have the power to grant
and convey such easements and rights-of-way in the name of and as attomey-in-fact for the any
and all Owners. Each Purchaser, in accepting a deed to a Unit, expressly consents to such
easements and rights of way and authorizes and appoints the Association and Declarant (as
long as Declarant owns one or more Units) as attomey-in-fact of such Owner to execute any
and all instruments conveying or creating such easements or rights-of-way. The foregoing
notwithstanding, no such easement can be granted if it would permanently interfere with the
use, occupancy or enjoyment by any Owner of his or her Unit(s), unless approved by all Owners
in writing.
6.2.2. CERTAIN RECIPROCAL EASEMENTS.
Reciprocal easements shall exist between the Owners for the
installation, repair, maintenance, and replacement of meters for water, gas and electricity, so
that each Owner shall have access to such meter(s) for his or her Unit, regardless of where
located.
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6.2.3. EASEMENTS TO PERFORM PROJECT DOCUMENT
DUTIES.
Anything herein to the contrary notwithstanding, there is hereby
reserved to Declarant, the Association and their respective duly authorized agents and
representatives, such easements as may be necessary to perform their respective duties,
obligations and rights as are set forth in this Declaration, and in any other Project Document.
6.3. EASEMENTS TO OTHERS.
Declarant further reserves the right to establish and/or grant over and across the
Units such easements and rights of way on, over, under or across all or any part thereof to or for
the benefit of the State of Califomia and the City, or any other political subdivision or public or
private organization, or any public utility entity, for the purpose of constructing, erecting,
operating and maintaining facilities and improvements thereon, therein or thereunder at that
time or at any time in the future, including: (i) roads, streets, walks, driveways, pari(ways and
park areas; (ii) poles, wires and conduits for transmission of electricity, providing telephone
service and cable television sen/ice to the Property and for the necessary attachments in
connection therewith, and (iii) public and private sewers, sewage disposal systems, sprinkling
systems, water, heating and gas lines or pipes and any and all equipment in connection
therewith. Said public utilities easement shall inure and run to all franchised utility companies
and to the City, and shall include the right of ingress and egress by vehicles of the City and
such utility companies to properiy install, maintain, repair, replace and othenvise service such
utility facilities. The grant of said public utility easement shall not be interpreted to imply any
obligation or responsibility of any such utility company or the City for maintenance or operation
of any of the Common Area or the facilities located thereon or the repair, replacement or
reconstmction thereof except as occasioned by such utility companies or the City, of the utility
facilities for which they are responsible. Except for lavi^ul and proper fences, stmctures and
facilities placed upon the Property by utility companies, the Property area subject to the public
easement shall be kept open and free from buildings and stmctures. The City, furthermore, is
hereby granted an easement across the Property for ingress and egress for use by emergency
vehicles ofthe City.
The foregoing Declarant rights to establish and/or grant easements and rights of
way on, over and across the Units, shall cease with the conveyance of the first Unit within the
Project.
6.4. ENCROACHMENT EASEMENTS.
If any portion of a Dwelling 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 the 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 Dwelling or stmcture in a Unit airspace is partially or
totally destroyed and then rebuilt or repaired, the Owners agree that minor encroachments shall
be permitted and there shall be easements for maintenance of such encroachments so long as
they shall exist.
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6.5. DRAINAGE & SLOPES.
The Owner of any Unit shall not in any way interfere with the established
drainage pattem over his or her Unit from the adjacent Unit, and such Owner will make
adequate provisions for property drainage in the event it is necessary to change the established
drainage through his or her Unit. For the purpose herein, "established drainage" is defined as
the drainage which occurred at the time of the overall grading of the Project was completed.
6.6. ACCESS EASEMENTS.
Nonexclusive access easements are hereby reserved by Declarant in favor of
(i) Unit U-2 over and upon that portion of Unit U-1, and Unit U-1 over and upon that portion of
Unit U-2, as shown on the Plan by the designation "Access Easement^ for purposes of
pedestrian and vehicular ingress, egress and access by the owner, occupants, guests and
invitees of Units U-1 and U-2 to travel from their Unit to 2817 & 2819 CAZADERO DRIVE. ;
and, (ii) Unit U-1 over and upon that portion of Unit U-2, and Unit U-2 over that portion of Unit
U-1 as shown on the Plan by the Designation "General Utility Easement" for purposes by the
owner, occupants, contractors and invitees of each Unit access to perform maintenance to
utilities ^cilities which are currently or will be installed within this area.
Individual grant deeds to Units may, but shall not be required to, set forth the
easements specified in this Section. Except as provided in Section 3.1.4 - CONSTRUCTION,
RECONSTRUCTION, REMODELING., there shall be no obstmctions whatsoever of the
foregoing Access Easements, so to permit them to be used for the purposes intended herein.
Provided, however, any encroachments of the nature described in the Section 6.4 entitled
"Encroachment Easements" hereinabove shall not be deemed an obstmction for purposes
herein, unless such obstmction prevents reasonable access.
Non-emergency worit shall require adequate Notice (for this Section, "Notice"
shall constitute a period of not less than one full week) prior to its commencement.
Each Owner shall maintain or cause to be maintained that portion of the Access
Easement located within the boundaries of his Unit in a neat and clean manner so to permit
unobstmcted access for the purposes intended herein. With the exception of one (1) guest
parking space, the Access Easement shall not be used for paridng or storage purposes. The
foregoing is not intended to prohibit the occasional and temporary blockage of the Access
Easement by the periling of vehicles for such purposes as unloading groceries, delivery
vehicles, moving vans, etc.
Notwithstanding the foregoing, the responsibility and costs incurred to repair any
damage to the Access Easement caused t)y an Owner, or by any tenant, occupant, guest,
invitee and/or contractor, shall be the sole responsibility of said Owner.
6.7. COMMENCEMENT OF EASEMENTS.
The easements reserved herein shall t)ecome effective upon the conveyance of
the first Unit from Declarant or its successor in interest. Individual grant deeds to Units may, but
shall not be required to, set forth the easements specified in this Section.
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RIGHTS OF MORTGAGEES
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 Unit 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 titie is derived through
foreclosure or tmstee's sale, or othenvise. Any provision within the Project Documents to the
contrary notwithstanding, First Mortgagees shall have the rights expressly provided in this
Article.
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 Unit can be sold. Should any such
rights nevertheless be created in the future, such righte shall not impair the rights of any first
mortgagee to: (a) foreclose or take title to a Unit 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 Unit acquired by the Mortgagee.
7.3. UNPAID DUES OR CHARGES.
Where the Mortgagee of a first Mortgage of record or other purchaser of a Unit
obtains title to the same pursuant to the remedies in the Mortgage or as a result of foreclosure,
such acquirer of titie, his or her successors and assigns, shall not be liable for the share of the
common expenses or assessments made by the Association chargeable to such Unit which
became due prior to the acquisition of title to such Unit by such acquirer. Such unpaid share of
common expenses or assessments shall be deemed to be common expenses collectible from
all ofthe Units including such acquirer, his or her 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 Units (based upon one (1) vote for each Mortgagee) have given their prior written
approval:
(a) Seek, by act or omission, to abandon the Project or to terminate the Plan
or this Declaration, or change, waive or abandon any scheme of regulation or enforcement
thereot
(b) Change the pro rata interest or obligations of any Unit for purposes of
levying assessments or allocating distributions of hazard insurance proceeds or condemnation
awards or for determining the pro rata share of the Common Area appurtenant to each Unit;
(c) Partition or subdivide any Unit;
(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
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utility or other public purposes consistent with the uses of the Property shall not be deemed a
transfer within the meaning of these provisions;
(e) Use hazard insurance proceeds for losses to any portion of the Property
for other than the repairs, replacement or reconstmction of the Property, except as may be
provided by statute or upon substantial loss to the Units or Property, respectively.
7.5. PRIORITY OF INSURANCE PROCEEDS DISTRIBUTION.
Any other provision herein contained to the contrary notwithstanding, no
provision of this Declaration or any other constituent documents shall give a Unit Owner, or any
other party, priority over any rights of the first mortgagee or beneficiary of the Unit pursuant to
its mortgage or 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 Units and/or Common Areas.
7.6. NOTIFICATION TO MORTGAGEE.
Upon written request to the Association, identifying the name and address ofthe
holder, insurer or guarantor and the Unit number or address, any Eligible Mortgage Holder or
Eligible Insurer will be entitled to timely written notice ot
(a) Any condemnation loss or any casualty loss which affects a material
portion of the Project or any Unit on which there is a first Mortgage held, insured or guaranteed
by such Eligible Mortgage Holder or Eligible Insurer;
(b) Any default in the perfomnance by an Owner of any obligation under the
Documents not cured within sixty (60) days;
(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. NONCURABLE BREACH.
Any Mortgagee who acquires titie to a Unit 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.
7.8. LOAN TO FACILITATE.
Any First Mortgage given to secure a loan to facilitate the resale of a Unit 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 entitied to all of
the rights and protections of this Article.
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8. INSURANCE: DAMAGE OR DESTRUCTION: CONDEMNATION
8.1. INDIVIDUAL INSURANCE.
Each Owner shall obtain and maintain, at the Owner's sole expense, fire and
casualty coverage insuring all improvements and fixtures of the Owner's Unit improvements,
and a comprehensive liability policy insuring the Ownei^ and occupants of tiie Unit and their
respective family members, guests, invitees and agents against any liability incident to the
ownership or use of the Unit, the term, amount and coverage of which shall satisfy the
customary minimum requirements of a First Mortgagee imposed for this type of Project. If a
First Mortgagee does not impose requirements on any policy required hereunder, the term,
amount and coverage of such policy shall be no tess than that which is customary for similar
polices on similar Units in the area. All such individually carried insurance shall contain a
"waiver of subrogation" by the carrier as to the Declarant (if applicable) and the mortgagee of
the insured Unit. Each Owner may also obtain and maintain such other insurance as he or she
considers necessary or advisable.
If requested, each Owner shall deliver to the requesting Owner, upon such
Owner's request copies of such insurance required herein or certificates evidencing the
existence and amounts of such insurance.
8.2. ALTERNATIVE ASSOCIATION-MAINTAINED INSURANCE.
(a) Upon unanimous consent of the Owners, the Owners acting together or
through the Association may obtain a master insurance policy for the Project in lieu of individual
insurance policies and the expense therefor pro-rated bietween the Owners in accordance with
the amounts and coverage attributeible to their respective Units.
(b) Each Owner, in this instance, shall appoint the Association or any
insurance tmstee 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.
(c) Any insurance maintained by the Association shall contain a "waiver of
subrogation" as to the Association and its members 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 not less than once 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 - UNIT IMPROVEMENTS.
If an improvement within a Unit airspace envelope is damaged or destroyed by
fire or other casualty, the Owner of such Unit shall repair, reconstmct or replace the
improvement as may be required by applicable building codes and regulations in force at the
time of such repair or reconstmction. To the extent not covered by insurance, each Owner shall
separately be responsible for the cost and expense of such repair or reconstmction. The Owner
of such Unit shall be obligated to proceed with all due diligence hereunder, and such Owner
shall cause constmction 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
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damage if it is of a "reconstruction" nature (greater than 20% damage to the improvements);
repair or reconstmction shall be completed within one (1) year after commencement thereot
The foregoing time provisions shall be subject to causes beyond an Owner's reasonable control,
such as strikes, Acts of God, etc.
8.4. CONDEMNATION.
In the event of a taking by eminent domain of all or any part of a 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 Property.
9. ENFORCEMENT
9.1. TERM
These CC&RS shall run with and bind the Property and shall inure to the benefit
of and be enforceable by the Association or any Member, their respective legal representatives,
heirs, successors and assigns, for a term of sixty (60) years from the date this Declaration is
Recorded, after which time said CC&RS shall be automatically extended for successive periods
of ten (10) yeare each, unless an instmment, signed by sixty-seven percent (67%) of the then
Members has been recorded, at least one (1) year prior to the end of any such period in the
manner required for a conveyance of real property, in which it is agreed that this Declaration
shall terminate at the end of the then applicable term.
9.2. ENFORCEMENT AND NON-WAIVER
The Association or any Owner/Member, including Declarant (collectively, the
"Parties," individually, a "Party"), shall have the right of action against any Owner, and any
Owner shall have a right of action against the Association, to enforce by proceedings at law or
in equity, all CC&RS now or hereafter imposed by the provisions of the Governing Documents
or any amendment thereto, including the right to prevent the violation of such CC&RS and the
right to recover damages or other dues from such violation except that Owners shall not have
any right of enforcement concerning Assessment Liens. The Association shall have the
exclusive right to the enforcement of provisions relating to aesthetics control (which shall
include architectural control) and the Operating Rules, unless the Association refuses or is
unable to effectuate such enforcement, in which case any Owner who otherwise has standing
shall have the right to undertake such enforcement. Failure ofthe Association, Declarant or any
Owner to enforce any of the CC&RS herein shall in no event be deemed a waiver of the right to
do so thereafter.
9.3. PROCEDURE FOR ENFORCEMENT BY PARTIES
Anything herein to contrary notwithstanding set forth in Section 9.2 above, in
enforcing any action under the Governing Documents for injunctive relief, declaratory relief
and/or monetary damages (excluding actions in Small Claims Court), the Parties shall comply
with the provistons of CIVIL CODE §1354, §1363.810 ef seq., §1368.3 ef seq. and §1369.510
ef seg., and any successor statute or law. The Board shall annually provide to the Members a
summary of the provisions of CIVIL CODE §§ 1354, 1363.810, 1363.840 ef seq. and any
successor statutes or laws, which shall include language required and shall be delivered in the
manner provided in CIVIL CODE §1365. The exception for disputes related to Association
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assessments set forth in CIVIL CODE §1369.520(d) shall not apply to disputes between a
Member and the Association regarding Assessments imposed by the Association, if the Member
choose to pay in full the Association all of the assessments as specified in CIVIL CODE
§1366.3 and any successor statutes or laws.
9.4. DECLARANT-RELATED DISPUTE RESOLUTION
9.4.1. NOTICE OF ACTIONS AGAINST DECLARANT
Subject to the provisions of Section 9.4.2 hereot the Association
and Owners shall comply with the provisions of Civil Code §1368.4, prior to the filing of any civil
action by the Association against the Declarant or other seller of Units in the Project for either
alleged damage to Common Area or other property within the Project that the Association is
obligated to maintain or repair, or alleged damage to any other portion ofthe Project that arises
out ot or is integrally related to, such damage to the Common Area or other property within the
Project that the Association is obligated to maintain or repair. Such notice shall specify all of the
matters set forth in CIVIL CODE §1368.4 and any successor statues or laws.
9.4.2. ALTERNATIVE DISPUTE RESOLUTION
The purpose of this Section 9.4.2 is to provide an expedited
means of resolving any claims, disputes and disagreements which may arise after the Close of
Escrow or other conveyance of any portion ofthe Property by Declarant, between:
(a) Declarant as the owner / seller of the Project, or any
director, officer, partner, member, employee or agent of the Declarant, or any contractor,
subcontractor, design professional, engineer or supplier who provided labor, services or
materials to the Project and who is bound or has agreed to t>e bound to the following dispute
notification and resolution procedure, and either or both:
(b) the Association or a Purchaser / Owner
relating to or arising out of the Property, or any portion thereot or the Third Party Warranty, that
are not resolved pursuant to any applicable statutory dispute resolution procedures (individually
referenced to herein as "Dispute" and collectively as "Disputes"). Initially, Declarant will attempt
to resolve any Dispute asserted by an Owner or the Association of which it is given notice. If
the Dispute cannot be resolved between the parties in this manner, it will be decided through
the arbitration procedure as set forth below. Alternatively, the Parties may elect to resolve such
Disputes through a small claims court proceeding.
THIS PROCESS INVOLVES WAIVERS OF THE RIGHTS TO A JURY TRIAL. BY
EXECUTING THIS DECLARATION OR ACCEPTING A DEED TO ANY PORTION OF THE
PROPERTY, RESPECTIVELY, DECLARANT, EACH OWNER AND THE ASSOCIATION,
AGREE TO BE BOUND BY THE PROVISIONS OF THIS SECTION.
9.4.3. NOTICE AND OPPORTUNITY TO CURE
If an Owner purchased its Unit directly from the Declarant, such
Owner shall follow the procedures set forth in the Limited Warranty during the period that the
Limited Warranty is in effect. If (i) an Owner did not purchase its Unit directty from the Declarant,
(ii) any applicable warranty period has expired, and (iii) the issue in Dispute is not covered by
the Limited Warranty, and an Owner discovers an unsatisfactory condition in the Property that
the Owner feels may be the responsibility of Declarant ("Condition"), Owner shall notify
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Declarant in writing. Such notice shall include: (a) a description of the Condition, (b) the date
upon which the Condition was discovered, and (c) dates and times when Owner or Owner's
agent will be home during ordinary business houre so that service calls or inspections by
Declarant can be scheduled. Declarant shall, in its sole discretion, be entitled to inspect the Unit
regarding the reported Condition and within its sole discretion, be entitled to cure such
Condition. Owner shall not pursue any other remedies available to it under this Declaration, at
law or othenvise, including without limitation the filing of any lawsuit or action, until Declarant
has had the reasonable opportunity to inspect and cure the alleged Condition. During the period
of such inspection and cure (but not to exceed the eariier to occur of (i) ninety (90) days from
the date of Declarant's receipt of Owner's notice described above, or (ii) Declarant's delivery of
written notice to Owner of Declarant's determination not to proceed with such cure), all
applicable statutes of limitation shall be tolled. The Association shall follow the procedures set
forth above regarding any Disputes involving the Association Property or Common Area. The
procedures set forth above shall apply to all Disputes conceming the Property and shall not be
limited to Declarant's Woric. Notwithstanding the foregoing, nothing set forth in this Section shall
give rise to any claims of an Owner against Declarant arising from, or be considered an
assumption by Declarant ot any liability that an Owner has waived, accepted or released under
this Declaration or the purchase agreement.
9.4.4. GENERAL RULES
(Real Estate Commissioners' Regulation §2791.8)
(A) FEE TO INITIATE RESOLUTION PROCESS
Declarant shall be responsible for advancing the fee
necessary to initiate the Resolution Process.
(B) PAYMENT OF FEES
Resolution Process fees and costs - including those paid
by Declarant to initiate the Resolution Process and any ongoing fees and coste - shall be paid
as mutually agreed upon by the Parties. In the event the Parties cannot agree upon the mutual
payment of the fees and costs, such fees and costs shall be paid as detennined by the person
or persons presiding at the Resolution Process.
(C) NEUTRAL, IMPARTIAL FACILITATOR
A neutral or impartial person(s) {"Facilitator" or
"Resolution Facilitator") shall oversee, administer and preside over the Resolution Process
(D) TIMELY APPOINTMENT OF OVERSEER
The Resolution Facilitator shall be appointed or selected
within sixty (60 days from the initiation of the Resolution Process. The person(s) appointed,
selected, designated or assigned as a Resolution Facilitator may be challenged for bias.
(E) VENUE
The venue ofthe Resolution Process shall be in the county
where the Property is located, unless the Parties agree in writing to another location.
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(F) COMMENCEMENT AND TIMING
The proceeding or hearing of the Resolution Process shall
commence promptly at the eariiest convenient date in light of all of the facts and circumstances
and shall be conducted without undue delay. The foregoing notwithstanding, should a specific
Resolution Process be utilized, such Resolution Process shall be deemed to be promptly and
timely commenced if it is to be commenced in accordance with the mles applicable to such
Resolution Process; if the mles thereot however, do not specify a date by which the proceeding
or hearing of such Resolution Process must commence, then such hearing or proceeding shall
commence on a date mutually agreed upon by the Parties, and if they cannot agree, then on a
date detennined by the Resolution Facilitator.
(G) FAIR AND REASONABLE RULES AND
PROCEDURES
The Resolution Process shall be conducted in accordance
with mles and procedures that are reasonable and fair to the Parties.
(H) PROMPT ISSUANCE OF DECISION OR RULING
The Resolution Process shall conclude promptly and
timely - including the issuance of any decision or ruling following the proceeding or hearing.
(I) REMEDIES AVAILABLE TO RESOLUTION
FACILITATOR
The Resolution Facilitator shall be empowered and
authorized to provide all recognized remedies available in law or equity for any cause of action
that is the basis ofthe Resolution Process proceeding or hearing.
(J) PUNITIVE DAMAGES
The Parties may authorize the limitation or prohibition of
punitive damages.
(K) JUDICIAL REMEDY
If a Resolution Process provides or allows for a judicial
remedy in accordance with Applicable Law, it shall be presumed that the proceeding or hearing
satisfies the foregoing General Rules.
9.4.5. DECLARANT RESOLUTION PROCESS
(A) NOTICE.
A Claimant with a claim defined as a Post-Closing Dispute
above, shall notify the Declarant and Declarant Party(ies) in writing of such claim, which writing
shall describe the nature of such claim and any proposed remedy {"Claim Notice'). Said Claim
Notice shall be given to the Declarant's and Declarant Parties' statutory agent pursuant to the
"Notice" provisions of the Section hereinafter entitied "Notice; Demand" Document Delivery"
(NOTE: a Claimant may confirm the current name and address of Declarant's agent by
contacting, as of the date of Recordation of these CC&RS, the Califomia Secretary of State,
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Special Filings Unit, P.O. Box 94244-2250, or by telephone at (916) 653-3984); and/or through
the following intemet address: http://kepler.ss.ca.qov/list.html.
(B) RIGHT TO INSPECT AND RIGHT TO CORRECTIVE
ACTION
Within a reasonable period after receipt of the Claim
Notice, which period shall not exceed sixty (60) days, Declarant (and any applicable Declarant
Parties) and the Claimant(s) shall nr^t at a mutually-acceptable place within or near the Project
to discuss the Dispute claim. At such meeting or at such other mutually-agreeable time,
Declarant (and any applicable Seller Parties) and their respective representatives shall have full
access to any property that is subject to the Dispute claim and shall have the right to conduct
inspections, testing and/or destmctive or invasive testing of the same in a manner deemed
appropriate by Declarant (and any applicable Declarant Parties), which rights shall continue
until such time as the Dispute is resolved as provided in this Section 9.4. The parties to the
Dispute shall negotiate in good faith in an attempt to resolve the claim. If Declarant (and any
applicable Declarant Parties) elects to take any con-ective action, Declarant (and any applicable
Declarant Parties) and their respective representatives and agents shall be provided full access
to the Project to take and complete corrective action
(C) CIVIL CODE SECTIONS 1368.4,1375,1375.05 AND
1375.1
Nothing contained herein shall be deemed a waiver or
limitation of the provisions of CIVIL CODE §1354, §1363.810 ef seq., §1368.3 ef seq. and
§1369.510 ef seq., and any successor statute or law. If the claim is subject to the provisions of
CIVIL CODE §1354, §1363.810 ef seq., §1368.3 ef seg. and §1369.510 ef seq., and any
successor statute or law, compliance with the procedures of these Sections shall satisfy the
requirements of Sections (A), (B) and 9.4.5(D), as applicable.
(D) MEDIATION
If the Parties to the Dispute cannot resolve the claim
pursuant to the procedures described in Section (B) above, the matter shall be submitted to
mediation pureuant to the mediation procedures adopted by Judicial Arbitration and Mediation
Services ("JAMS") (except as such procedures are modified by the provisions of this Section
9.4.5(D)) or any successor thereto or to any other entity offering mediation services that is
mutually acceptable to such parties. No person shall serve as a mediator in any Dispute in
which the person has any financial or personal interest in the result of the mediation, except by
the written consent of all Parties to the Dispute participating in the mediation. Prior to accepting
any appointment, the prospective mediator shall disclose any circumstances likely to create a
presumption of bias or to prevent a prompt commencement of the mediation process. Except
as provided in Section 9.4.8 below, Purchaser/Owner covenants that Purchaser/Owner shall not
commence any arisitration against the Declarant Parties without complying with the procedures
described in this Section 9.4.5(D).
(E) POSITION MEMORANDA; PRE-MEDIATION
CONFERENCE
Within ten (10) days ofthe selection ofthe mediator, each
Party to the Dispute participating in the mediation shall submit a brief memorandum setting forth
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its position with regard to the issues that need to be resolved. The mediator shall have the right
to schedule a pre-mediation conference and all parties to the Dispute participating in the
mediation shall attend unless othenvise agreed. The mediation shall be commenced within ten
(10) days following the submittal of the memoranda and shall be concluded within fifteen (15)
days fi^m the commencement of the mediation unless the parties to the Dispute participating in
the mediation mutually agree to extend the mediation period. The mediation shall be held in the
county in which the Project is located or such other place as is mutually acceptable to the
parties to the Dispute parttoipating in the mediation.
(F) CONDUCT OF MEDIATION
The mediator has discretion to conduct the mediation in
the manner in which the mediator believes is most appropriate for reaching a settlement of the
Dispute. The mediator is authorized to conduct joint and separate meetings with the Parties to
the Dispute participating in the mediation and to make oral and written recommendations for
settlement. Whenever necessary, the mediator may also obtain expert advice conceming
technical aspects of the Dispute, provided the Parties to the Dispute participating in the
mediation agree and assume the expenses of obtaining such advice. The mediator does not
have the authority to impose a settlement on the Parties to the Dispute parttoipating in the
mediation.
(G) EXCLUSION AGREEMENT
Prior to the commencement of the mediation session, the
mediator and all Parties to the Dispute participating in the mediation shall execute an
agreement pureuant to EVIDENCE CODE §1115 ef seq. and any successor statute or laws in
order to exclude the use of any testinrtony or evidence produced at the mediation in any
subsequent dispute resolution forum, including, but not limited to, court proceedings, reference
proceedings or arbitration hearings. Pureuant to EVIDENCE CODE §1115 ef seq., the
agreement shall specifically state that evidence of anything said or of any admission made in
the course of the mediation is not admissible evidence, and disclosure of any such evidence
shall not be compelled in any civil action in which, pureuant to law, testimony can be compelled
to be given. Unless the document provides othenvise, no document prepared for the purpose
ot or in the couree ot or pureuant to, the mediation, or copy thereot is admissible in evidence;
and disclosure of any such document shall not be compelled in any civil action in which,
pureuant to law, testimony can be compelled to be given. The provisions of EVIDENCE CODE
§§1115 through 1128 shall also be applicable to such mediation process.
(H) PERSONS PERMITTED AT SESSIONS
Persons other than the Parties to the Dispute participating
in the mediation, their representatives and the mediator may attend mediation sessions only
with the pennission of the Parties to the Dispute participating in the mediation and the consent
of the mediator; provided, however, that such permission and consent shall not be required to
allow participation of such Parties' insurer in the mediation to the extent required under such
Parties' liability insurance policy. Confidential information disclosed to a mediator by such
Parties or by witnesses in the couree of the mediation while serving in such capacity shall be
confidential. There shall be no stenographic record of the mediation process.
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(I) EXPENSES
All expenses of the mediation, including, but not limited to,
the fees and coste charged by the mediator and the expenses of any witnesses or the cost of
any proof or expert advice produced at the direct request of the mediator, shall be borne equally
by the Parties to the Dispute participating in the mediation unless they agree othenvise. Each
Party to the Dispute participating the mediation shall bear its own attorneys' fees and other
coste in connection with such mediation.
9.4.6. ARBITRATION
Claimant(s) and Declarant Parties shali resolve any Post-Closing
Dispute not resolved as provided above exclusively through a binding arisitration Resolution
Process. This arbitration provision shall apply to any unresolved Post-Closing Disputes of any
kind or nature regardless ofthe relief sought.
(A) FEDERAL ARBITRATION ACT
Because many of the materials and produds incorporated
into the Property are manufactured in other states, the development and conveyance of the
Property or any portion thereof evidences a transaction involving interetate commerce and the
FEDERAL ARBITRATION ACT (9 U.S.C. §1 et seq.) {'The Act") now in effect and as it may be
hereafter amended will govern the interpretation and enforcement of the arbitration provisions
under this Section 9.4. Accordingly, any and all unresolved Post-Closing Disputes shall be
arbitrated, which arbitration shall be mandatory and binding, pureuant to THE ACT.
(B) WAIVER OF LITIGATION AND APPEAL
The Association, Owner(s) and Declarant:
(1) ARE GIVING UP RIGHTS THEY MIGHT HAVE TO
HAVE ANY POST-CLOSING DISPUTES
LITIGATED IN A COURT OF LAW.
(2) ARE GIVING UP THEIR RIGHTS TO APPEAL
ANY DECISION OF THE ARBITRATOR.
(3) SHALL BE COMPELLED TO ARBITRATE ANY
AND ALL POST-CLOSING DISPUTES OR
CLAIMS.
(C) GENERAL ARBITRATION PROVISIONS
(1) JAMS Arbitration Procedures The arbitration
procedures adopted by Judicial Arbitration and Mediation Services ("JAMS") shall govern the
conduct ofthe ariiitration ("JAMS Rules').
(2) Waiver of Trial bv Judge or Jury By agreeing to
resolve all Disputes through binding arisitration, Claimant(s) and Declarant Parties each agree
give up the right to have their respective claims and defenses decided by a judge or a jury. All
claims and defenses shall instead be decided by the arbitrator.
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(3) Qualifications of Arbitrators The arbitrator shall
be neutral and impartial and an attorney or retired judge with at least ten (10) yeare experience
in common interest development real estate mattere.
(4) Appointment of Arbitrator The arbitrator to
preside over the Dispute shall be selected in accordance with the JAMS Rules, but no later than
sixty (60) days after a notice of claim is filed.
(5) Expenses The fees and costs charged by JAMS
and the arbitrator {"Arbitration Expense") to initiate the arbitration Resolution Process shall be
advanced by Declarant. All Arbitration Expense, however, shall be paid as mutually agreed
upon by the Parties. In the event the Parties cannot agree upon the mutual payment of such
Arbitration Expense, such Arbitration Expense shall be paid as determined by the arbitrator.
The foregoing notwithstanding, except as othenvise agreed by the Parties or as required by
Applicable Law, an Owner shall not be required to pay a total Arbitration Expense greater than
that that would be imposed upon the disputant if the Dispute had been filed as a suit in court.
The arbitrator may not award against an Owner any Arbitration Expense in excess of that that
would be recoverable as costs if the Post-Closing Dispute had been litigated to final judgment in
court.
(6) Attorneys' Fees and Costs Each Party shall bear
its own attomeys fees and costs (including expert witness costs) in the arbitration.
(7) Venue The venue of the arbitration shall be in the
County where the Property is located unless the Parties agree in writing to another location.
(8) Preliminarv Procedures If state or federal law
requires the Association or an Owner or Declarant to take steps or procedures before
commencing an action in court, tiien the Owner or Declarant must take such steps or follow
such procedures, as the case may be, before commencing the arbitration. In addition, nothing
contained herein shall be deemed a waiver or limitation of the provisions of CIVIL CODE §§
1368.4,1375, 1375.05 or 1375.1.
(9) Participation bv Other Parties The Association,
an Owner and Declarant, to the extent any such party is defending a claim in the arbitration,
may, if it chooses, have all necessary and appropriate parties included as parties to the
arbitration. The absence of another Party's participation in the Resolution Process shall not be
asserted or accepted as a reason by Claimant or Declarant to delay, to refuse to participate in
the Resolution Process, or to refuse to enforce this Section 9.4.
(10) Rules of Law The arbitrator must follow Califomia
substantive law (including statutes of limitations) but strict confonnity witii the rules of evidence
is not required, except that the arbitrator shall apply Applicable Law relating to privilege and
work product. The arbitrator shall be authorized to provide all recognized remedies available at
law or equity for any cause of action.
(11) Decision of Arbitrator The arbitrator shall issue a
prompt and timely written decision within thirty (30) days after the hearing is closed, which
decision shall be final and binding upon the Parties. If an Owner, the Declarant or the
Association request it, the arbitrator's written decision shall include the reasons for it.
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(D) ADDITIONAL RULES APPLICABLE TO CERTAIN
CASES
In any arbitration in which a claim of Owner, the
Association or Declarant exceeds $250,000 in value, the following additional mles will
supplement the JAMS Rules and govern in the event of a conflict between the following mles
and the mles set forth above, the JAMS Rules, or both.
(1) Qualifications of Arbitrator The arijitrator shall
be a retired judge ofthe Califomia Superior Court, a Califomia Court of Appeal, or the California
Supreme Court.
(2) Rules of Law The California Evidence Code shall
apply.
(3) Reasoned Avwird The written decision by
arbitrator shall include the reasons for it.
(4) Additional Discovery Rights In addition to the
discovery rights provided for in the JAMS Comprehensive AriDitration Rules, the parties will have
the following discovery rights:
[a] Inspection. Examination and/or Test The
right to a reasonable inspection, examination and/or test of any site, defect, personal injury or property
damage relevant to any claim;
[b] Deposition of Opposing Party The right to
take one deposition of each opposing party for up to four hours. The deposition of a person designated
by an entity or organization as most knowledgeable, or an individual officer or employee of an entity or
organization, shall count as the deposition of a party which is not a natural person.
[c] Deposition of Expert Witnesses The right to
take the deposition of each expert witness designated by an opposing party for up to four hours.
[d] Additional Depositions The arbitrator shall
have discretion to allow additional depositions and longer depositions upon a showing of good cause.
9.4.7. SEVERABILITY
Should any provision in this Section 9.4 be determined to be
unenforceable or to have been waived, the remaining provisions shall be deemed to be
severable therefrom and enforceable according to their terms. In the event the arbitration
Resolution Process is held not to apply or is held invalid, void or unenforceable in its entirety for
any reason, the Parties agree that all Post-Closing Disputes shall be tried before a judge in a
court of competent jurisdiction without a jury. The judge in such court of competent jurisdiction
shall have the power to grant all legal and equitable remedies and award compensatory
damages. The Parties each hereby waive and covenant not to assert their constitutional right to
trial by jury of Post-Closing Disputes. The Parties hereby covenant and agree that their mutual
waiver of jury trial shall be binding upon their respective successors and assigns and upon all
persons and entities asserting rights or claims or otherwise acting on behalf of the Parties or
their successors and assigns.
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9.4.8. EXCEPTIONS TO MEDIATION AND ARBITRATION;
STATUTES OF LIMITATION
The procedures set forth in this Section 9.4 shall apply only to
Post-Closing Disputes and shall not apply to any Dispute, matter or issue described in Section
9.3. Nothing in this Section 9.4 shall be considered to toll, stay, reduce or extend any
applicable statute of limitations; provided, however, that the Parties shall be entitled to
commence a legal action which in the good faith determination of any Party is necessary to
preserve the Parties' respective rights under any applicable statute of limitations, provided that
a Party shall take no further steps in prosecuting the action until it has complied with the
procedures described in this Section 9.4.
9.4.9. SURVIVAL; SUCCESSORS AND ASSIGNS
The rights and obligations of the Parties pursuant to this Section
9.4 shall survive the Close of Escrow. This Section 9.4 and the rights, duties and obligations of
the Parties shall be binding upon and shall inure to the benefit of the heirs, executore,
administratore, successore, and assigns ofthe respective Parties.
9.5. MISCELLANEOUS PROVISIONS REGARDING
ENFORCEMENT AND LEGAL ACTION
9.5.1. FAILURE TO ENFORCE
Failure by any Owner, including Declarant, to enforce any
provisions of this Declaration shall in no event be deemed a waiver of the right to do so
thereafter.
9.5.2. VIOLATION OF LAW
Any violation of any state, municipal or local law, ordinance or
regulation pertaining to the ownerehip, occupation or use of any Unit within the Project is hereby
declared to be a violation of this Declaration and subject to the enforcement procedures herein
set forth.
9.5.3. GOVERNING LAW
This Declaration shall be governed by and construed under the
laws ofthe State of Califomia, the County and the City.
10. 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 of court order, the remaining provisions hereof shall
be and remain in full force and effect.
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10.2. AMENDMENTS.
Prior to close of escrow on the sale of the firet Unit in the Property, Declarant
may amend this Declaration. After the close of escrow on the firet Unit, this Declaration may be
amended at any time and from time to time by an instmment duly recorded in the Office of the
San Diego County Recorder bearing the acknowledged signatures of One-Hundred Percent
(100%) ofthe Unit Ownere.
The foregoing notwithstanding, so long as Declarant owns a Unit in the Project,
and provided that the Project has been approved by the FHA and/or VA, the following shall
require the prior approval of FHA and/or VA: annexation of additional properties, de-annexation,
mergers and consolidations, any special assessments and any amendment of this Declaration.
A draft of any amendment to this Declaration should be submitted to the VA for its approval prior
to its approval by the membership of the Associatton.
10.3. INCORPORATION.
The Association, an unincorporated association, may be incorporated upon the
vote or written assent of one hundred percent (100%) of the voting power thereot whereafter,
the approving membere shall be authorized to execute appropriate Articles of Incorporation and
to file the same with the Secretary of State, certifying that such votes or written consent have
been obtained.
10.4. 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, heire, successore, and
assigns, for a term of fifty (50) yeare from the date this Declaration is recorded, after which time
they shall be automatically extended for successive periods of ten (10) yeare, unless an
instrument in writing, signed by all ofthe then Owners ofthe Units, has been recorded within the
year preceding the beginning of each successive period often (10) yeare, agreeing to change
said covenants and restrictions in whole or in part, or to terminate the same.
10.5. LITIGATION.
In the event the 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 attomey's fees as the Court may adjudge
reasonable and proper. The "prevailing party" shall be the party who is entitied to recover his or
her costs of suit, whether or not the suit proceeds to final judgment. A party not entitled to
recover his or her costs shall not recover attorney's fees.
10.6. OWNER'S COMPLIANCE.
Each Owner, tenant or occupant of a Unit shall comply with the provisions of this
Declaration, as lawfully amended from time to time. Failure to comply with any such provisions
shall be grounds for an action (a) to recover sums due, (b) for damages, (c) for injunctive reliet
(d) for costs and attorneys fees, or (e) any combination ofthe foregoing.
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10.7. NOTICE.
Any notice permitted or required by this Declaration may be delivered either
pereonally or by mail. If delivery is by mail, it shall be deemed to have been delivered seventy-
two houre after a copy of the same has been deposited in the United States Mail, by certified
mail, postage prepaid, addressed to the pereon to be notified at his or her current address given
by such pereon to the Association or addressed to the Unit of such pereon if no address has
been given.
10.8. SINGULAR INCLUDES PLURAL.
Whenever the context of this Declaration requires same, the singular shall
include the plural and the masculine shall include the feminine.
10.9. LIBERAL CONSTRUCTION.
The provisions of this Declaration shall be liberally constmed 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 and reference only and shall not be considered or referred
to in resolving questions or interpretation or constmction.
10.10. EASEMENTS RESERVED AND GRANTED.
Any easements refen'ed to in this Declaration shall be deemed reserved or
granted, or both resen/ed and granted, by reference to this Declaration in a deed to any Unit.
10.11. CIVIL CODE SECTION 1368.
The Owner of a Unit shall, as soon as practicable before transfer of title or
execution of a real property sales contract therefor, as defined in California Civil Code Section
2985, provide copies of the Project Documents and such disclosures and certificates as may be
required by Civil Code Section 1368, or any successor statute or law. The Association shall, if
requested by said Owner, provide copies ofthe same to such Owner within ten (10) days ofthe
mailing or delivery of the request.
11 CITY REQUIREMENTS
(a) General Enforcement Bv The Citv. The City shall have the right, but not
the obligation, to enforce the provisions of this Declaration.
(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
Associations Easements as provided in Section 4, the City shall have the right, but not the duty,
to perfonn the necessary maintenance. If the City elects to perform such maintenance, the City
2817 & 2819 CAZADERO DRIVE (9)R3:051106
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shall give written notice to the Association, with a copy thereof to the Ownere in the Project,
setting forth with particularity the maintenance which the City finds to be required and
requesting the same tbe carried out by the Association within a period of thirty (30) days from
the giving of such notice. In the event that the Association ^lls to can7 out such maintenance
of the ComnfK>n Area Lots and/or Association's Easements within the period specified by the
City's notice, the City shall be entitled to cause such worit to be completed and shall be entitled
to reimbureement with respect thereto from the Ownere as provided therein.
(d) Special Assessments Levied Bv The City. In the event the City has
perfonned 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 ^ils to pay such invoice in full within the time specified, the city
will pureue collection against the Ownere in the Project pureuant to the provisions of this
Section. Said invoice shall be due and payable by the Association within twenty (20) days of
receipt by the Associatton. 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
pureue collection from the Association by means of any remedies availat>le at law or in equity.
With out limiting the generality of the foregoing, in addition to all other righte and remedies
available to the City , the City may levy a special assessment against the Ownere 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 pureue 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 Section (XXX) of this Declaration.
(e) Landscape Maintenance Responsibilities. The Association and individual
lot or Unit owner landscape maintenance responsibilities shall be as set forth in Exhibit .
(f) Balconies. Trellis and Decks. The individual Lot or Unit owner allowances
and prohibitions regarding balconies, trellis and decks shall be as set forth in Exhibit .
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IN WITNESS WHEREOF, the undersigned, being Declarant herein, has
executed this instmment on
DECLARANT:
CAZADERO HOMES, INC., A
CAUFORNIA CORPORATION
By:
RON PAUL
Chief Executive Officer
(Please Attach Property Notary Certificates of Acknowledgment)
2817 & 2819 CAZADERO DRIVE (9)R3:051106
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EXHIBIT "A" - LEGAL DESCRIPTION
PARCEL 1 OF PARCEL MAP NO. { }, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
FILED IN THE OFFICE OF THE COUNTY RECORDER ON { }.
2817 & 2819 CAZADERO DRIVE (9)R3:051106
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G E I S S L E R ENGINEERING
Peter S. Geissler
Civil Engineer Lie. C44320
Contractor Lie. A464670
Flastmo BuiWing, Suite 230
2535 South Coast Highway 101
Car<5liff-by-the-6ea, CA 92007
Office 760 - 633 - 4252
Fax 760-633-4259
Mobile 760 - 515 - 5054
HYDROLOGY STUDY & DRAINAGE CALCULATIONS
Kancho Csaadwo Unit "A" & Unit "B"
Lot 306 La Costa Meadows
2317 & 2319 Cazadero Street
Cariebad, CA
Date: 20 June 2004
Project: Kancho Cazadero Unit "A" & Unit "5"
Lot 506 La Coeta Meadows
2317 & 2319 Cazadero Street
Carlsbad, CA
Ref: Geissler Engineering Project No. 03-559-1
Client: Mr. Ron Paul
2954 Hawks Eye Place
Carlsbad, CA 92009
HYDROLOGIC CALCULATIONS - UPHILL PORTION (Above Existina Swale)
Peak Runoff (50-year storm) = 3.4 inches per hour
Runoff Coefficient, C = 0.60 (vegetative hillside)
Tributary Dra'maqe Area
Area of proposed existing uphill vegetative hillside
Area of existing uphill pavement
Total drainage tributary area
25.125 sg ft
N/A SOI ft
25.125 scift
[Reference: As-Built Grading Plan L5a53 La Costa Meadows Unit No. 2 Drawing No. 172-6A
Sheet 5 of 7 dated July 121971, and Crty of Cariebad Orthophoto Mapping Drawing No. 296-5.
Sheet 156 of 225 dated September 1933.]
[Note: Uphill ofthe drainage swale, no change in tributary drainage area is proposed. No
additional pavement is proposed. This study is an evaluation of the adec^ua^ of the existing
brow ditch to control surface runoff onto the proposed development site.]
Page 1
Peak Flow ReciuirTsment = (5.4) (0.60) (25.125) / ((12) (60) (60)) = 1£>9 cu ft per second
The maximum discharge capacrty of the existing brow ditch may be evaluated by estimating
steady-state flow, Gt, from the Manning Ec^uation. as fbllows.
G = (-^j (A) |^R3 52 j = (1.55) ^(053)1 j ^(0.0177)i j = 14 cu ft per sec
1.09 < 14
Where
D = Dept* (maximum) of flow in the existing brow ditch = 9-1/2 in = 0.79 ft
W, = Width at top of existing brow ditch = 54 In = 2.35 ft
Wa = Width at bottom (trough) of existing brow drtch = 7 in = 053 ft
(tVi-J-lVo) {Z&3 + 05&) A = Cross-sectional area of brow ditch = P — — = 0.79 = 1.55 so^ft
1 R = Hydraulic radius of brow ditch = — ^| P
fIV, -I-IV2
= 0.53 ft
S = Slope = 0.77 / 45.5 = 0.0177 [Reference measurements by Geissler Engineering
12/4/02 Ahei0ht= 0.77 ft, A length = 455 ft]
n = Coefficient of roughness = 0.015 [Reference = ASCE MANUAL OF PRACTICE #57. pp.
32-33. ASCE. New York. 1976]
Engineer's Certification
I, Peter Scott Geissler, Registered Civil Engineer In the State of CaNfomia, License No. 44320,
verily believe and hereby confirm that the existing brow ditch located uphill of the proposed
development at Lot 306 La Costa Meadows, Unit No. 2, Cartebad, Califomia is adequately sczed
to prevent surface runoff onto the proposed du|:^ residence at 2817 and 2819 Cazadero
Street, Car1^>ad. CaPomia.
Signed 20" day of June 2004
Peter Geissler, RCE 44320
Page 2
HYDROLOGIC CALCULATIONS - DOWNHILL PORTION (Below Existina Swale)
Peak Runoff {50-year storm) = 5.4 inches per hour
Pre-Construction Runoff Coefficient C = 0.60 (vegetative hillside)
Pre-Construction Downhill Tributary Drainage Area = 15.456 se| ft {DownhWl of drainage swale)
Pre-Construction Peak Flow = (5.4) (0.60) (15.466) / ((12) (60) (60)) = 0.64 cu ft per second
Post-Construction Runoff Coefficients: C = 0.50 (level lawn) and C = 1.0 (paved & roof areas)
Post-Construction Downhill Tributary areas are as follows.
Lawn Area = 4.674 so^ft
Paved Area = 5.155 scj_ft
Roof Area = 5,647 sc^ ft
Post-Construction Downhill Weighted-Average Runoff Coefficient is as follows.
Weighted-Average Runoff Coefficient = [(4.674) (.50) + (5.135) (1.0) + (5.647) (1.0)] / (15.456)
= 0.76
Pre-Construction Peak Flow = (5.4) (0.76) (15.456) / ((12) (60) (60)) = 030 cu ft per second
NET INCREASED STORM WATER RUNOFF = 0.30 - 0.64 = 0.16 cu ft per second
STORM WATER POLLUTION PREVENTION MEASURE
The surface storm water runoff shali be filtered whilst traversing the lawn areas of the propetty.
The net rssuK will be a reduction in soil erosion and a net redudron In silts and days earned into
receiving water bodies.
Engin^r's Certification
i, Peter Scott Geissler, Registered Civil Engineer in the State Of Califomra, License No. 44320.
verily believe and hereby confinn that the water quality of the surface stomn water mnoff below
the brow ditch located uphill of the proposed devetopment at Lot 306 La Costa Meadows. Unit
No. 2. Carlsbad. Califomia shall be improved by the proposed mitigation ^p^^r^SfQ/i.
Signed 20* day of June 2004 ^ C44320 ^SAS.
Peter Geissler, RCE 44320 €|j| /./or— lm
R£N£WAIDATE^
^^^^^ I