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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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - i - - DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO ORIVE (9)R3:0S1106 DECLARATION - il - - DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:0S1106 DECLARATION - iii - »DEC CazaderoDr.doc (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 2817 & 2819 CAZADERO ORIVE (9)R3:051106 DECLARATION - iv - - DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - v- 'DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION -1 - DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 2 - " DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 3 - " DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 4 - DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 5 - " DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 6 - « DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:0S1106 DECLARATION - 7 - " DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:0S1106 DECLARATION -8- ''DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 9 - DEC CazaderoDr.doc 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." 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION -10- DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:0S1106 DECLARATION -11- DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLAIRATION -12- ''DECCazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION -13- "DECCazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 14 - « DEC CazaderoDr doc 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: 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION -15- DEC CazaderoDr.doc (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. 2817 & 2819 CAZADERO ORIVE (9)R3:051106 DECLARATION - 16 - DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 17 - " DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION -18- '^DEC CazaderoDrdoc 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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION -19- ''DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 20 - DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:0S1106 DECLARATION - 21 - '^ DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 22 - " DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:OS1106 DECLARATION - 23 - " DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 24 - DEC CazaderoDr.doc (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, 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 25 - DEC CazaderoDr.doc 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 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 26 - " DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 27 - " DEC CazaderoDr.doc (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. 2817 & 2819 CAZADERO DRIVE (9)R3:0S1106 DECLARATION - 28 - " DEC CazaderoDr.doc (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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 29 - DEC CazaderoDr.doc (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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 30 - DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 31 - '* DEC CazaderoDr.doc 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. 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 32 - DEC CazaderoDr.doc 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 DECLARATION - 33 - '^ DEC CazaderoDr.doc 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 . 2817 & 2819 CAZADERO DRIVE (9)R3:051106 DECLARATION - 34 - DEC CazaderoDr.doc 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 DECLARATION - 35 - '^ DEC CazaderoDr.doc 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 DECLARATION - 36 - " DEC CazaderoDr.doc 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