HomeMy WebLinkAboutCP 324; PETER GRAY; Condo Permit (CP)STATE OF CALIFORNIA—THE RESOURCES AGENCY -- GEORGE DEUKMEJIAN C',.,v,,'-nor
CALIFORNIA COASTAL COMMISSION
SAN DIEGO COAST DISTRICT
1333 CAMINO DEL RIO SOUTH, SUITE 125
SAN DIEGO, CA 92108-3520
(619) 297.9740
Date: March March 24, 1986
TO: Peter and Ellen Gray
1726 Kennincjton Rd.
LeuCadia, CA 92024
SUBJECT: Waiver of Coastal Development Permit Requirement/De Minimis
Developments-Section 30624.7 of the Coastal Act
Based on your project plans and information provided in your permit appli-
cation for the development described belcw, the Executive Director of the
Coastal Commission. hereby waives the requirement for a Coastal Development
Permit pursuant to Section 13238.1, Title 14, California Administrative Code.
If, at a later date, this information is found to be incorrect or the, plans
revised, this decision will become invalid; and, any development occurring
must cease until a coastal development permit is obtained or any discrepancy
is resolved iii writing.
WAIVER #_272 . APPLICANT: Peter and Ellen Gray
LOCATION: South side of Park Drive between Cove Drive and Marina Drive
Carlsbad San Diego County APN 207-150-34
PROPOSED DEVELOPtENT:Construction of a three-story, 4,136 sq. 'ft. du p lex on a
vacant 4,720 sq.ft. lot. Each unit will be provided a one-car garage anda -
jacuzzi there will he 3 shared parking spaces in front and a shared boat dp,c,_
on the rear of the proper.'. Maximum height of the structure will be 30 feet.- - -
RATIONALE: The project resents infill development in an established sub-
division with a full array of urban services available. Th.project is consis-
tent with the certified Aqua Hedionda Land Use Plan.
This waiver will not become effective until reported to the Commission at thei;
April 8-11, 1986 , meeting and the site of the proposed development
has been appropriately noticed, pursuant to 13054(b) of the Administrative
Code. The enclosed Notice Card shall remain posted at the site until the
waiver has been validated and no less than seven days prior to the Commission
hearing. If four (4) Conrrissioners object to this waiver of permit require-
merits, a coastal development permit will be required.
TOM CRANDALL
South Coast District Director
(6--86-129/6129R)
cc: Commlssiorlers/Flle
by :4 ____
(0790A)l2/A5
I
Sheet 1 of 4 Sheets
CONDOMINIUM PLAN
Lot 50 of Shelter Cove, in the City of Carlsbad, County of San
Diego, State of California, according to map thereof No. 5162
recorded in the Office of the County Recorder of San Diego County
on April 23, 1963.
GENERAL NOTES AND DEFINITIONS
1) This condominium plan consists of:
a) a description of the land included within the project
b) a diagrammatic plan of the RESIDENTIAL UNITS
c) the location of the foundation of the Residential Buildings
with respect to the RESIDENTIAL UNIT division line
d) the certificate required by California Civil Section 1351
2) This Condominium Plan is composed of a Common Area and two
units, RESIDENTIAL UNIT 1 and RESIDENTIAL UNIT 2.
3) Each RESIDENTIAL UNIT consists of a Residential Building and a
Yard, as described herein. A Residential Unit is sometimes
referred to herein, and in the Declaration of Covenants,
Conditions and Restrictions applicable to this project, as a
"Unit".
4) A Residential Building includes all portions of the structure
comprising the Residential Building, including without
limitation the foundation, bearing walls, roof, and all
components of such improvement. The footprint of each
Residential Building is shown hereon.
5) Each Residential Unit consists of all space, real property
and improvements located within the Residential Unit area
shown hereon. The lower boundary of each Residential Unit
is a plane 10 feet below the slab elevation shown on sheet 3,
and the upper boundary of Residential Unit 1 is a plane 38
feet above the slab elevation. The lateral boundaries of each
Yard and Residential Unit are shown hereon. All angles be-
tween the boundaries of any Yard and Residential Unit are 90
degrees, unless otherwise shown.
6) The common Area of this project is the land and real property
within the boundary lines shown hereon, except therefrom those
portions defined as UNIT 1 and UNIT 2.
7) The unit shall mean and include the elements of a condominium
not owned in common with the owners of other condominiums in
the project.
8) The physical boundaries of a condominium unit, or of a unit
reconstructed in substantial conformance with the original
plans thereof, shall be conclusively presumed to be its'
boundaries rather than the metes and bounds expressed herein,
regardless of settling or lateral movement of the building
and regardless of variance between boundaries shown hereon
and those of the building.
SURVEYOR'S CERTIFICATE
I hereby certify that I am a Licensed Land Surveyor in the State
of California and that this plan consisting of 4 sheets correctly
represents a survey of the boundary of the subject land and the
relationship of the condominium units to said boundary.
Jon Blake, L.S.4
LAND
ExP('
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NOTES
fl.4115 SURVEV IS 13AS6O UPON COR1-1E.R RECORD
-THE SASIS OF- SEARI1-15 FOR TI-ItS SURVEY IS TI-IC.
00' 0/6 LINE TO THE 81W OF PIAFZI< DRIVE
LE N4(,0 OS'Z7'W
E.LEVATIOl-46 ARE. SASEO UPOM THE TOP Oi CURS
E LL- VAT ION OPPOSITE. THE CO8IUE.R TO LOT'S 60 AND 51
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CONDOMINIUM- PLAN
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21 TICOR TITLE JFSURANCE . (p
TICOR TITLE INSURANCE COMPANY
925 "B" STREET SAN DIEGO, CALIFORNIA 92101
P.O. BOX 1150 SAN DIEGO, CALIFORNIA 92112 619 239-6081
PRELIMINARY REPORT
MAY 19, 1987
SUMMIT ESCROW
ATTN: KAY MC HAFFEY
7071 CONVOY CT., SUITE 114
SAN DIEGO, CALIFORNIA 92111
YOUR REFERENCE: 4663
OUR ORDER NO. : 1155666
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE
INSURANCE, TICOR TITLE INSURANCE COMPANY OF CALIFORNIA HEREBY REPORTS
THAT IT IS PREPARED TO ISSUE, OR CAUSE TO BE ISSUED, AS OF THE DATE
HEREOF, A POLICY OR POLICIES OF TITLE INSURANCE DESCRIBING THE LAND
AND THE ESTATE OR INTEREST THEREIN HEREINAFTER SET FORTH, INSURING
AGAINST LOSS WHICH MAY BE SUSTAINED BY REASON OF ANY DEFECT, LIEN OR
ENCUMBRANCE NOT SHOWN OR REFERRED TO AS AN EXCEPTION BELOW OR NOT
EXCLUDED FROM COVERAGE PURSUANT TO THE PRINTED SCHEDULES, CONDITIONS
AND STIPULATIONS OF SAID POLICY FORMS.
HE PRINTED EXCEPTIONS AND EXCLUSIONS FROM THE COVERAGE OF SAID
POLICY OR POLICIES ARE SET FORTH ON EXHIBIT 'A' ATTACHED HERETO AND
INCORPORATED HEREIN. COPIES OF THE POLICY FORMS SHOULD BE READ. THEY
ARE AVAILABLE FROM THE OFFICE WHICH ISSUED THIS REPORT.
THIS REPORT, (AND ANY SUPPLEMENTS OR AMENDMENTS THERETO) IS ISSUED
SOLELY FOR THE PURPOSE OF FACILITATING THE ISSUANCE OF A POLICY OF
TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT IS DESIRED
THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF A POLICY OF TITLE
INSURANCE, A BINDER OR COMMITMENT SHOULD BE REQUESTED.
DATED AT 7:30 A.M. AS OF MAY 15, 1987
TITLE OFFIC SANDRA WEBER TEL 619 544-6222
SIGNED:
HE FORM OF POLICY OF TITLE INSURANCE CONTEMPLATED BY THIS REPORT IS:
(4 ALTA RESIDENTIAL TITLE INSURANCE POLICY - 1979
4 ALTA LOAN POLICY - 1970 WITH ALTA ENDORSEMENT FORM 1 COVERAGE
(AMENDED 10-17-70)
CLTA STANDARD COVERAGE POLICY - 1973 (AMENDED 12-6-85
AND 2-20-86)
ALTA OWNER'S POLICY FORM B - 1970 (AMENDED 10-17-70)
1155666 PAGE
Wj,j- TICOR TITLE 84SURANCE
THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED
TO COVERED BY THIS REPORT
IS: A FEE AS TO PARCEL 1; AN EASEMENT AS TO PARCELS 2, 3 AND 4
TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
PETER A. GRAY AND ELLEN B. GRAY, AS TRUSTEES UNDER THAT CERTAIN TRUST
CREATED BY THE GRAY FAMILY TRUST DATED APRIL 11, 1985 AND IN PETER A.
GRAY AND ELLEN B. GRAY, HUSBAND AND WIFE AS COMMUNITY PROPERTY; AS THE
INTEREST OF SAID TRUSTEE AND HUSBAND AND WIFE MAY APPEAR
AT THE DATE HEREOF EXCEPTIONS TO COVERAGE IN ADDITION TO THE
PRINTED EXCEPTIONS AND EXCLUSIONS CONTAINED IN SAID POLICY FORM
WOULD BE AS FOLLOWS:
1. GENERAL AND SPECIAL COUNTY AND CITY TAXES AND SPECIAL
ASSESSMENTS, IF ANY, COLLECTED WITH SAID TAXES.
FOR THE FISCAL YEAR : 1987-88
A LIEN NOT YET PAYABLE.
THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO
THE PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75)
OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA.
GENERAL AND SPECIAL COUNTY AND CITY TAXES AND SPECIAL
ASSESSMENTS, IF ANY, COLLECTED WITH SAID TAXES.
FOR.THE FISCAL YEAR : 1986-87
SECOND INSTALLMENT : DELINQUENT
2. ANY ADVERSE CLAIM BASED UPON THE ASSERTION THAT SOME PORTION OF
SAID LAND IS TIDE OR SUBMERGED LANDS, OR HAS BEEN CREATED BY
ARTIFICIAL MEANS OR HAS ACCRETED TO SUCH PORTION SO CREATED.
3. EASEMENTS AND RIGHTS OF WAY FOR ROAD AND PUBLIC UTILITIES, AND
APPURTENANCES THERETO, AS RESERVED AND CONVEYED BY VARIOUS DEEDS
OF RECORD
AFFECTS : EASEMENT PARCELS 2, 3 AND 4
4. AN EASEMENT, AS REFLECTED IN AN INSTRUMENT CREATING OR REAFFIRMING
SAID EASEMENT, AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES
IN FAVOR OF : SAN DIEGO GAS & ELECTRIC COMPANY
FOR : ANCHOR TO SUPPORT A LINE OF POLES AND WIRES
RECORDED : JULY 8, 1963, RECORDER'S FILE NO. 118499
AFFECTS : THE NORTHEASTERLY 88 FEET FO THE SOUTHEASTERLY 3 FEET OF
LOT 50.
5. COVENANTS, CONDITIONS AND RESTRICTIONS IN THE DECLARATION OF
RESTRICTIONS
1155666 PAGE 2
ljr TICOR TITLE SiSURANCE 0 0)
RECORDED : AUGUST 5, 1966, RECORDER'S FILE NO. 127577
RESTRICTIONS, IF ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL
ORIGIN ARE DELETED. WHICH PROVIDE THAT A VIOLATION THEREOF SHALL NOT DEFEAT OR RENDER
INVALID THE LIEN OF ANY MORTGAGE OR DEED OF TRUST MADE IN GOOD
FAITH AND FOR VALUE.
SAID COVENANTS, CONDITIONS AND RESTRICTIONS HAVE BEEN PURPORTEDLY
MODIFIED BY AN INSTRUMENT
RECORDED : OCTOBER 28, 1977, RECORDER'S FILE NO. 77-447138
SAID COVENANTS, CONDITIONS AND RESTRICTIONS HAVE BEEN PURPORTEDLY
MODIFIED BY AN INSTRUMENT
EXECUTED BY : THE BRISTOL COVE PROPERTY OWNERS ASSOCIATION
RECORDED : DECEMBER 6, 1983, RECORDER'S FILE NO. 83-442993
6. AN EASEMENT, AS REFLECTED IN AN INSTRUMENT CREATING OR REAFFIRMING
SAID EASEMENT, AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES
IN FAVOR OF : SAN DIEGO GAS & ELECTRIC COMPANY
FOR : UNDERGROUND ELECTRICAL FACILITIES FOR THE TRANSMISSION
AND DISTRIBUTION OF ELECTRICITY
RECORDED : MARCH 17, 1967, RECORDER'S FILE NO. 36713
AFFECTS : THE NORTHEASTERLY 5.00 FEET.
7, AN EASEMENT, AS REFLECTED IN AN INSTRUMENT CREATING OR REAFFIRMING
SAID EASEMENT, AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES
IN FAVOR OF : BRISTOL COVE PROPERTY OWNERS ASSOCIATION, A NONPROFIT
CORPORATION
FOR : UNDERGROUND DRAINAGE FACILITIES
RECORDED : AUGUST 2, 1967, RECORDER'S FILE NO. 114092
AFFECTS : AS FOLLOWS:
A STRIP OF LAND 15 FEET WIDE ON SAID LOT 50 AS SAID LOT IS SHOWN
ON SAID MAP, THE WESTERN LINE OF SAID STRIP BEING THE
EASTERN LINE OF LOT 74 AS SAID LOT IS SHOWN ON SAID MAP,
THE EASTERN LINE AND WESTERN LINE OF SAID STRIP TO BE
EXTENDED OR SHORTENED SO AS TO TERMINATE ON THE NORTHWEST LINE
OF LOT 44 AND ON THE SOUTHERN LINE OF LOT 72.
8. AN EASEMENT, AS REFLECTED IN AN INSTRUMENT CREATING OR REAFFIRMING
SAID EASEMENT, AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES
IN FAVOR OF : JANSS CORPORATION, A CORPORATION
FOR : STORM DRAIN AND TREE MAINTENANCE
RECORDED DECEMBER 22, 1967, RECORDER'S FILE NO. 201638
AFFECTS : A STRIP OF LAND 15 FEET WIDE ADJACENT TO THE BOUNDARY
COMMON TO SAID LOTS 50 AND 74.
9. A DEED OF TRUST TO SECURE AN ORIGINAL INDEBTEDNESS OF THE
AMOUNT STATED HEREIN
DATED : APRIL 28, 1986
AMOUNT : $300,000.00
TRUSTOR : PETER ANTHONY GRAY AND ELLEN BECKER GRAY, AS TRUSTEES
UNDER DECLARATION OF TRUST DATED DECEMBER 28, 1978 AND
1155666 PAGE 3
0 TICOR TITLE 1SURANCE • 0
AMENDMENT THERETO DATED APRIL 11, 1985, WHO ACQUIRED
TITLE AS PETER A. GRAY AND ELLEN B. GRAY, AS TRUSTEES
UNDER THAT CERTAIN TRUST CREATED BY THE GRAY FAMILY TRUST
DATED APRIL 11, 1985, AND IN PETER A. GRAY AND ELLEN B.
GRAY, HUSBAND AND WIFE AS COMMUNITY PROPERTY; AS THE
INTERESTS OF SAID TRUSTEE AND HUSBAND AND WIFE MAY APPEAR
TRUSTEE : SAFECO TITLE INSURANCE COMPANY
BENEFICIARY : SAN MARCOS NATIONAL BANK, A NATIONAL BANKING ASSOCIATION
RECORDED : MAY 5, 1986, RECORDER'S FILE NO. 86-176291
10. AN AGREEMENT TO WHICH REFERENCE IS HEREBY MADE FOR FULL
PARTICULARS
DATED : FEBRUARY 27, 1986
BY AND BETWEEN : THE CITY OF CARLSBAD AND ED OLSEN
REGARDING : AGREEMENT TO PAY INCREASED FEES FOR DEVELOPMENT
MANAGEMENT SYSTEM
RECORDED : MAY 20, 1986, RECORDER'S FILE NO. 86-199439
11. ANY MATTERS WHICH MAY BE DISCLOSED BY AN INSPECTION OF SAID
LAND.
12, THE FACT THAT THE DESCRIPTION IN THIS REPORT APPEARS FROM OUR
RECORDS TO COVER THE LAND PROVIDED FOR IN YOUR ESCROW. IT IS
SUGGESTED, HOWEVER, THAT THE IDENTITY OF SAID LAND (SEE PLAT
ENCLOSED) BE VERIFIED BY YOU TO ASSURE THAT IT IS THE LAND
INTENDED TO BE COVERED IN THIS TRANSACTION.
TAX FIGURES FOR
CODE AREA
PARCEL NO.
LAND
FIRST INSTALLMENT
SECOND INSTALLMENT:
1986-87
9000
207-150-34
$135,000.00
$718.58, PAID
$718.58, DELINQUENT
SUPPLEMENTAL TAXES FOR THE FISCAL YEAR 1986-87
ASSESSED PURSUANT TO THE PROVISIONS OF CHAPTER 3.5
(COMMENCING WITH SECTION 75) OF THE REVENUE AND
TAXATION CODE OF THE STATE OF CALIFORNIA;
CODE AREA 9000
PARCEL NO. 859-003-54-85
LAND $108,501.00
FIRST INSTALLMENT $483.81, PAID
SECOND INSTALLMENT $483.81, PAID
NOTE: THE COUNTY RECORDER'S OFFICE WILL CHARGE, IN
ADDITION TO THE REGULAR RECORDING CHARGES, AN EXTRA $20.00
RECORDING FEE, UNLESS A DOCUMENT EVIDENCING A CHANGE OF
OWNERSHIP IS ACCOMPANIED BY A "PRELIMINARY CHANGE OF
OWNERSHIP REPORT." IN LIEU OF SAID REPORT, SIGNED BY THE
1155666 PAGE 4
fjej-- TICOR TITLE WSURANCE • (p
TRANSFEREE, THE RECORDER WILL NOT CHARGE AN EXTRA FEE IF
THE DOCUMENT IS ACCOMPANIED BY AN AFFIDAVIT THAT THE
TRANSFEREE IS NOT A RESIDENT OF CALIFORNIA. OUR TITLE
BILLING WILL BE ADJUSTED TO REFLECT SUCH ADDITIONAL FEES
WHEN APPLICABLE.
1155666 PAGE 5
NJ TICOR TITLE 44SURANCE . 0
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
ALL OF LOT 50 OF THAT TRACT DESCRIBED IN MAP NO. 5162, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY
ON APRIL 23, 1963.
EXCEPTING ALL THE OIL, GAS, MINERAL AND OTHER HYDROCARBON SUBSTANCES
LYING BELOW A DEPTH OF 500 FEET FROM THE SURFACE OF SAID LAND, WITHOUT
HOWEVER, THE RIGHT OF SURFACE ENTRY.
PARCEL 2:
A NON-EXCLUSIVE EASEMENT AND RIGHT OF WAY FOR PEDESTRIAN AND VEHICULAR
INGRESS AND EGRESS, INCLUDING THE RIGHT TO TRANSPORT SMALL WATERCRAFT,
OVER LOT 15 OF THAT TRACT DESCRIBED IN MAP 5162, RECORDED IN THE OFFICE OF
COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON APRIL 23, 1963,
WHICH EASEMENT IS FOR THE BENEFIT OF AND APPURTENANT TO THE HEREINABOVE
DESCRIBED PARCEL I AND, BEING APPURTENANT, SHALL RUN WITH THE LAND.
PARCEL 3:
A NON-EXCLUSIVE EASEMENT AND RIGHT OF WAY FOR VEHICULAR AND SMALL
WATERCRAFT INGRESS AND EGRESS OVER LOT 74 OF THAT TRACT DESCRIBED IN MAP
NO. 5162, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, CALIFORNIA, ON APRIL 23, 1963, WHICH EASEMENT IS FOR THE BENEFIT
OF AND APPURTENANT TO THE HEREINABOVE DESCRIBED PARCEL 1 AND, BEING
APPURTENANT, SHALL RUN WITH THE LAND, AND WHICH EASEMENT IS SUBJECT TO
SUCH RULES AND REGULATIONS FOR USE AS MAY BE PROMULGATED FROM TIME TO TIME
PURSUANT TO THE DECLARATION OF RESTRICTIONS AND PROTECTIVE COVENANTS,
RECORDED AUGUST 5, 1966, RECORDER'S FILE NO. 127577.
THIS EASEMENT SHALL TERMINATE AS TO ANY WHARFAGE AREA WITHIN LOT 74 AS
SOON AS CONSTRUCTION OF ANY WHARFAGE FACILITY IS INITIATED THEREIN,
SUCH WHARFAGE AREA, TO WHICH REFERENCE IS MADE IN THE PREVIOUS SENTENCE,
IS ANY ONE OF THOSE DELINEATED IN EXHIBIT "B" ATTACHED TO AND INCORPORATED
IN THE DECLARATION OF RESTRICTIONS AND PROTECTIVE COVENANTS MORE
SPECIFICALLY DESCRIBED ABOVE.
PARCEL 4:
AN EASEMENT OVER THAT PORTION OF THE ABOVE REFERENCED LOT 74 OF SAID TRACT
DESCRIBED IN MAP NO. 5162, RECORDED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, CALIFORNIA, ON APRIL 23, 1963, WHICH PORTION IS
WHARFAGE AREA 50, AS DELINEATED IN EXHIBIT "B" ATTACHED TO AND
INCORPORATED IN THE ABOVE REFERENCED DECLARATION OF RESTRICTIONS AND
PROTECTIVE COVENANTS, SAID EASEMENT TO BE FOR THE EXCLUSIVE RIGHT TO
CONSTRUCT, MAINTAIN AND USE A WHARFAGE FACILITY PURSUANT TO SAID
DECLARATION OF RESTRICTIONS AND PROTECTIVE COVENANTS AND APPURTENANT TO
1155666 PAGE 6
0 TICOR TITLE &SURANCE 0 0)
PARCEL 1 ABOVE.
1155666 PAGE
TICOR TITLE JVSURANCE
EXHIBIT A S
Printed Policy Exceptions and Exclusions
AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY--1979
EXCLUSIONS
In addition to the Exceptions in Schedule B, you are not
insured against loss, costs, attorneys' fees and expenses
resulting from:
1. Governmental police power, and the existence or violation of
any law or government regulation. This includes building and
zoning ordinances and also laws and regulations concerning:
* land use
Improvements on the land
* land division
* environmental protection
This exclusion does not limit the zoning coverage described in
items 12 and 13 of Covered Title Risks.
3. Title Risks:
* that are created, allowed or agreed to by you
* that are known to you, but not to us, on the Policy Date--
unless they appeared In the public records
* that result in no loss to you
* that first affect your title after the Policy Date--this does not
limit the labor and material lien coverage in Item 8 of Covered
Title Risks
4. Failure to pay value for your title.
5. Lack of a right:
* to any land outside the area specifically described and
referred to in Item 3 of Schedule A, or
2. The right to take the land by condemning It, unless a notice of * in streets, alleys or waterways that touch your land.
taking appears in the public records on the Policy Date. This exclusion does not limit the access coverage In Item 5 of
Covered Title Risks.
SCHEDULE B--STANDARD EXCEPTIONS
(A) Any rights, interests or claims of parties in possession of the land not shown by the public records.
(B) Any easements or liens not shown by the public records.
This does not limit the lien coverage in Item 8 of the Covered Title Risks.
(C) Any facts about the land which a correct survey would disclose and which are not shown by the public records.
This does not limit the forced removal coverage in Item 12 of Covered Title Risks.
(0) Any water rights, claims or title to water on or under the land.
AMERICAN LAND TITLE ASSOCIATION LOAN POLICY--1970
WITH ALTA ENDORSEMENT FORM 1 COVERAGE (AMENDED 10-17-70)
SCHEDULE OF EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy.
Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or
prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or
hereafter erected on the land, or prohibiting a separation In ownership or a reduction in the dimensions or area of the land, or the effect of any
violation of any such law, ordinance or governmental regulation.
2. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears In the public records at
Date of Policy.
3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not
known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the date such
claimant acquired an estate or interest insured by this policy or acquired the Insured mortgage and not disclosed in writing by the insured
claimant to the Company prior to the date such insured claimant became an insured hereunder; (C) resulting In no loss or damage to the
insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent insurance is afforded herein as to any statutory
lien for labor or material or to the extent insurance is afforded herein as to assessments for street improvements under construction or
completed at Date of Policy).
4. Unenforceability of the lien of the insured mortgage because of failure of the insured at Date of Policy or of any subsequent owner of the
indebtedness to comply with applicable "doing business" laws of the state in which the land is situated.
1155666 PAGE 8
fje-j- TICOR TITLE 81SURANC6 41 n
CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY---1973
(Amended 12-6-85 and 2-20-86)
SCHEDULE B PART I
This policy does not Insure against loss or damage, nor against costs, attorneys' fees or expenses, any or all of which arise by reason of the
following:
1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real
property or by the public records.
Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of
such agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by
making inquiry of persons in possession thereof.
3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which
are not shown by the public records.
S. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the Issuance thereof; (c) water rights, claims or
title to water, whether or not the matters excepted under (a), (b), or (C) are shown by the public records.
6. Any right, title, Interest, estate or easement in land beyond the lines of the area specifically described or referred to in Schedule C, or In abutting
streets, roads, avenues, alleys, lanes, ways or waterways, but nothing in this paragraph shall modify or limit the extent to which the ordinary right
of an abutting owner for access to a physically open street or highway is insured by this policy.
7. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or
prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter
erected on the land, or prohibiting a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or
was a part, whether or not shown by the public records at Date of Policy, or the effect of any violation of any such law, ordinance or governmental
regulation, whether or not shown by the public records at Date of Policy.
8. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public records.
9. Defects, liens, encumbrances, adverse claims, or other matters (a) whether or not shown by the public records at Date of Policy, but created,
caused, suffered, assumed or agreed to by the insured claimant; (b) not shown by the public records and not otherwise excluded from coverage but
known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy or acquired
the Insured mortgage and not disclosed In writing by the Insured claimant to the Company prior to the date such insured claimant became an
insured hereunder; (c) resulting In no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting
In loss or damage which would not have been sustained if the insured claimant had been a purchaser or encumbrancer for value without
knowledge.
10. Any facts, rights, interest or claims which are not shown by the public records but which could be ascertained by making Inquiry of the lessors
in the lease or leases described or referred to in Schedule A.
11. The effect of any failure to comply with the terms, covenants and conditions of the lease or leases described or referred to in Schedule A.
AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY FORM B--1970
(Amended 10-17-70)
SCHEDULE OF EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy:
Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or
regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any
Improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions of
area of the land, or the effect of any violation of any such law, ordinance or governmental regulation.
2. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public
records at Date of Policy.
3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured
claimant; (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of
Policy or at the-date such claimant acquired an estate or interest by this policy and not disclosed in writing by the insured claimant
to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting in no loss or damage to the
insured claimant; (d) attaching or created subsequent to Date of Policy; (e) resulting in loss or damage which would not have been
sustained if the insured claimant had paid value for the estate or interest insured by this policy.
Principal Office: 6300 Wilshire Boulevard, P.O. Box 92792, Los Angeles, California 90009
1155666 PAGE 9
LOT 14
SO.'SZ
33 32 3/
50 ZS 21 21 1246 25 24 23
'LL
L
/
PA
7
-, /V ,r
'V .. MAjOAACL d)
5AAEL T~F12 CO VE
— aA/ 3Q/A/OAEY
,?se< .vao&gc.Ø .'1440S 1?W eSflS • = 4r--- N — PARK ,R)V I
X ,•. N
/( T. IL
h EGEMO
• VD.-'/(S.t..j., .CS: #rI Lift. • St C ._,o 5 • Sr - :i _Lf.6 ____,. -
21' 4 a,o 'p. ftTS .eaarj.._
mad-es C C-.. 1C .-'tSS P.w1( qflO
This is not a survey of the land, but is
compiled for information only, nor is it
a part of the report or policy to which
it may be attached.
TITLE INSURANCE AND TRUST
220 'A' Street
San Diego, California, 92101
-
/O(
TICOR TITLE INSURANCE
CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY • 1973
SCHEDULE A
POLICY NO. : 1134014
AMOUNT : $135,000.00
CHARGE : $637.50
EFFECTIVE DATE: AUGUST 7, 1985, AT 8:00 A.M.
1. NAME OF INSURED
THOMAS J. LANAHANAND IRENE A. LANAHAN; ROGER LAMS AND
LJEANNETTE MARIETTE LAMS
AND
PETER A, GRAY AND ELLEN P. GRAY, AS TRUSTEES UNDER THAT
CERTAIN TRUST CREATED BY THE GRAY FAMILY TRUST DATED
APRIL 11, 1985 AND IN PETER A. GRAY AND ELLEN B. GRAY,
HUSBAND AND WIFE AS COMMUNITY PROPERTY; AS THE INTERESTS OF SAID
TRUSTEE AND HUSBAND AND WIFE MAY APPEAR."
2. THE ESTATE OR INTEREST IN THE LAND DESCRIBED HEREIN AND
WHICH IS COVERED BY THIS POLICY
IS A FEE AS TO PARCEL 1; AN EASEMENT AS TO PARCELS 2, 3 AND 4
3. THE ESTATE OR INTEREST REFERRED TO HEREIN IS AT DATE OF
POLICY VESTED IN:
PETER A. GRAY AND ELLEN B. GRAY, AS TRUSTEES UNDER THAT
CERTAIN TRUST CREATED BY THE GRAY FAMILY TRUST DATED
APRIL 11, 1985 AND IN PETER A. GRAY AND ELLEN B. GRAY,
HUSBAND AND WIFE AS COMMUNITY PROPERTY; AS THE INTERESTS OF SAID
TRUSTEE AND HUSBAND AND WIFE MAY APPEAR.
SCHEDULE B
THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE, NOR AGAINST
COSTS, ATTORNEY'S FEES OR EXPENSES, ANY OR ALL OF WHICH ARISE BY
REASON OF THE FOLLOWING.
PART I
ALL MATTERS SET FORTH IN PARAGRAPHS NUMBERED I (ONE) TO 11 (ELEVEN)
INCLUSIVE ON THE INSIDE COVER SHEET OF THIS POLICY UNDER THE HEADING
OF SCHEDULE B PART I.
PART II
1. GENERAL AND SPECIAL COUNTY AND CITY TAXES AND SPECIAL
ASSESSMENTS, IF ANY, COLLECTED WITH SAID TAXES.
FOR THE FISCAL YEAR : 1985-86
4
I
I-
•TICOR TITLE ISURNCE jj71 d$I
A LIEN NOT YET PAYABLE.
THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO
THE PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75)
OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA.
2. ANY ADVERSE CLAIM BASED UPON THE ASSERTION THAT SOME PORTION OF
SAID LAND IS TIDE OR SUBMERGED LANDS, OR HAS BEEN CREATED BY
ARTIFICIAL MEANS OR HAS ACCRETED TO SUCH PORTION SO CREATED.
3. EASEMENTS AND RIGHTS OF WAY FOR ROAD AND PUBLIC UTILITIES, AND
APPURTENANCES THERETO, AS RESERVED AND CONVEYED BY VARIOUS DEEDS
OF RECORD
AFFECTS : EASEMENT PARCELS 2, 3 AND 4
4. AN EASEMENT, AS REFLECTED IN AN INSTRUMENT CREATING OR REAFFIRMING
SAID EASEMENT, AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES
IN FAVOR OF : SAN DIEGO GAS & ELECTRIC COMPANY
FOR : ANCHOR TO SUPPORT A LINE OF POLES AND WIRES
RECORDED : JULY 8, 1963, RECORDER'S FILE NO. 118499
AFFECTS : THE NORTHEASTERLY 88 FEET FO THE SOUTHEASTERLY 3 FEET OF
LOT 50.
5. COVENANTS, CONDITIONS AND RESTRICTIONS IN THE DECLARATION OF
RESTRICTIONS
RECORDED : AUGUST 5, 1966, RECORDER'S FILE NO. 127577
RESTRICTIONS, IF ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL
ORIGIN ARE DELETED.
WHICH PROVIDE THAT A VIOLATION THEREOF SHALL NOT DEFEAT OR RENDER
INVALID THE LIEN OF ANY MORTGAGE OR DEED OF TRUST MADE IN GOOD
FAITH AND FOR VALUE.
SAID COVENANTS, CONDITIONS AND RESTRICTIONS HAVE BEEN PURPORTEDLY
MODIFIED BY AN INSTRUMENT
RECORDED : OCTOBER 28, 1977, RECORDER'S FILE NO. 77-447138
SAID COVENANTS, CONDITIONS AND RESTRICTIONS HAVE BEEN PURPORTEDLY
MODIFIED BY AN INSTRUMENT
EXECUTED BY : THE BRISTOL COVE PROPERTY OWNERS ASSOCIATION
RECORDED : DECEMBER 6, 1983, RECORDER'S FILE NO. 83-442993
6. AN EASEMENT, AS REFLECTED IN AN INSTRUMENT CREATING OR REAFFIRMING
SAID EASEMENT, AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES
IN FAVOR OF : SAN DIEGO GAS & ELECTRIC COMPANY
FOR : UNDERGROUND ELECTRICAL FACILITIES FOR THE TRANSMISSION
AND DISTRIBUTION OF ELECTRICITY
RECORDED : MARCH 17, 1967, RECORDER'S FILE NO. 36713
AFFECTS : THE NORTHEASTERLY 5.00 FEET.
7. AN EASEMENT, AS REFLECTED IN AN INSTRUMENT CREATING OR REAFFIRMING
SAID EASEMENT, AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES
IN FAVOR OF : BRISTOL COVE PROPERTY OWNERS ASSOCIATION, A NONPROFIT
CORPORATION
a a a s a a M A r t' olf
` P TICOR TITLE IURANCE •.,
FOR : UNDERGROUND DRAINAGE FACILITIES
RECORDED : AUGUST 2, 1967, RECORDER'S FILE NO. 114092
AFFECTS : AS FOLLOWS:
A STRIP OF LAND 15 FEET WIDE ON SAID LOT 50 AS SAID LOT IS SHOWN
ON SAID MAP, THE WESTERN LINE OF SAID STRIP BEING THE
EASTERN LINE OF LOT 74 AS SAID LOT IS SHOWN ON SAID MAP,
THE EASTERN LINE AND WESTERN LINE OF SAID STRIP TO BE
EXTENDED OR SHORTENED SO AS TO TERMINATE ON THE NORTHWEST LINE
OF LOT 44 AND ON THE SOUTHERN LINE OF LOT 7.
8. AN EASEMENT, AS REFLECTED IN AN INSTRUMENT CREATING OR REAFFIRMING
SAID EASEMENT, AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES
IN FAVOR OF : iJANSS CORPORATION, A CORPORATION
FOR : STORM DRAIN AND TREE MAINTENANCE
RECORDED : DECEMBER 22, 1967, RECORDER'S FILE NO. 201638
AFFECTS : A STRIP OF LAND 15 FEET WIDE ADJACENT TO THE BOUNDARY
COMMON TO SAID LOTS 50 AND 74.
9. A DEED OF TRUST TO SECURE AN ORIGINAL INDEBTEDNESS OF THE
AMOUNT STATED HEREIN
DATED : MAY 28, 1985
AMOUNT : $95,000.00
TRUSTOR : PETER A. GRAY AND ELLEN B. GRAY, TRUSTEES OF THE GRAY
FAMILY TRUST DATED APRIL 11, 1985
TRUSTEE : TICOR TITLE INSURANCE COMPANY OF CALIFORNIA, A CALIFORNIA
CORPORATION
BENEFICIARY : THOMAS J. LANAHAN AND IRENE A. LANAHAN, HUSBAND AND WIFE
AS JOINT TENANTS, AS TO AN UNDIVIDED ONE-HALF (1/2)
INTEREST AND ROGER LAMS AND IJEANNETTE MARIETTE LAMS,
HUSBAND AND WIFE AS JOINT TENANTS, AS TO AN UNDIVIDED
ONE-HALF (1/2) INTEREST
RECORDED : AUGUST 7, 1985, RECORDER'S FILE NO. 85-282622
j 71COR TITLE IPWURANCE
0
SCHEDULE C
THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
ALL OF LOT 50 OF THAT TRACT DESCRIBED IN MAP NO. 5162, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF RECORDED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, ON
APRIL 23, 1963.
EXCEPTING ALL THE OIL, GAS, MINERAL AND OTHER HYDROCARBON SUBSTANCES
LYING BELOW A DEPTH OF 500 FEET FROM THE SURFACE OF SAID LAND, WITHOUT
HOWEVER, THE RIGHT OF SURFACE ENTRY.
PARCEL 2:
A NON-EXCLUSIVE EASEMENT AND RIGHT OF WAY FOR PEDESTRIAN AND VEHICULAR
INGRESS AND EGRESS, INCLUDING THE RIGHT TO TRANSPORT SMALL WATERCRAFT,
OVER LOT 15 OF THAT TRACT DESCRIBED IN MAP 5162, RECORDED IN THE OFFICE OF
COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON APRIL 23, 1963,
WHICH EASEMENT IS FOR THE BENEFIT OF AND APPURTENANT TO THE HEREINABOVE
DESCRIBED PARCEL I AND, BEING APPURTENANT, SHALL RUN WITH THE LAND.
PARCEL 3:
A NON-EXCLUSIVE EASEMENT AND RIGHT OF WAY FOR VEHICULAR AND SMALL
WATERCRAFT INGRESS AND EGRESS OVER LOT 74 OF THAT TRACT DESCRIBED IN MAP
NO. 5162, RECORDED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY,
CALIFORNIA, ON APRIL 23, 1963, WHICH EASEMENT IS FOR THE BENEFIT OF AND
APPURTENANT TO THE HEREINABOVE DESCRIBED PARCEL 1 AND, BEING APPURTENANT,
SHALL RUN WITH THE LAND, AND WHICH EASEMENT IS SUBJECT TO SUCH RULES AND
REGULATIONS FOR USE AS MAY BE PROMULGATED FROM TIME TO TIME PURSUANT TO
THE DECLARATION OF RESTRICTIONS AND PROTECTIVE COVENANTS, RECORDED
AUGUST 5, 1966, RECORDER'S FILE NO. 127577.
THIS EASEMENT SHALL TERMINATE AS TO ANY WHARFAGE AREA WITHIN LOT 74 AS
SOON AS CONSTRUCTION OF ANY WHARFAGE FACILITY IS INITIATED THEREIN,
SUCH WHARFAGE AREA, TO WHICH REFERENCE IS MADE IN THE PREVIOUS SENTENCE,
IS ANY ONE OF THOSE DELINEATED IN EXHIBIT "B" ATTACHED TO AND INCORPORATED
IN THE DECLARATION OF RESTRICTIONS AND PROTECTIVE COVENANTS MORE
SPECIFICALLY DESCRIBED ABOVE.
PARCEL 4:
AN EASEMENT OVER THAT PORTION OF THE ABOVE REFERENCED LOT 74 OF SAID TRACT
DESCRIBED IN MAP NO. 5162, RECORDED IN THE OFFICE OF COUNTY RECORDER OF
SAN DIEGO COUNTY, CALIFORNIA, ON APRIL 23, 1963, WHICH PORTION IS
WHARFAGE AREA 50, AS DELINEATED IN EXHIBIT "B" ATTACHED TO AND
INCORPORATED IN THE ABOVE REFERENCED DECLARATION OF RESTRICTIONS AND
PROTECTIVE COVENANTS, SAID EASEMENT TO BE FOR THE EXCLUSIVE RIGHT TO
A ^-
'g 31COR TITLE 11VURANCE
• 4
CONSTRUCT, MAINTAIN AND USE A WHARFAGE FACILITY PURSUANT TO SAID
DECLARATION OF RESTRICTIONS AND PROTECTIVE COVENANTS AND APPURTENANT TO
PARCEL I ABOVE.
- ,. A
QUALITY
ORIGINAL (S)
CITY OF CARLSBAD
1200 ELM MVENUE CARLSBAD, CALIFORNIA 92008
438-5621
REC'D FROM_JLL
DATE
ACCOUNT NO. DESCRIPTION AMOUNT
./f.g'yL/
92027
0027 08/19 01 5Mic 172
cm
-V
RECEIPT NO. 1 TOTAL
CITY OF CARLSBAD
1200 ELM kqifENUE CARLSBAD, CALIFOhNIA 92008
438-5621
7 , - I,-
REC'D FROM V V' VHV DATE
ACCOUNT NO. V
V DESCRIPTION AMOUNT
V
ifJ/)cco/f I r
314178
O021 CiS/1 (YOj ;N1 ,
V
V
V _ _
RECEIPT NO. 72724 TOTAL 7JLV/i
Jon Blake and Surveyin?
United States Mineral Surveyor
California L.S. 4368- Alaska L.S. 4839
Nevada R.L.S. 5972 -Arizona R.L.S. 14660
May 15, 1987
City of Carlsbad
Planning Department
2075 Las Plamas Dr.
Carlsbad, CA. 92009-4859
Attention: Robert Wojic
Subject: Request for Condominium permit Lot 50, Map 5162
(4629 A and B Park Drive)
Dear Mr. Wojic:
Transmitted herewith are:
1) / Copies of the building plans for Lot 50
2) /Check #2348 in the amount of $240.00
3) Check #2349 in the amount of $30.00',,
4) 1 City of Carlsbad Application & Permit
(for compliance inspection)
Please contact me if there is anything else I can provide which
will assist you in processing the Condominium Permit or Parcel
Map Waiver request.
Sincerely,
S)ZBJGJQL
Jon Blake, L.S.
REC%V ED
15 1991
CT'i OF CI\RLSBI\D
PROC. SERV. Div.
1739 Red Barn Road. Encinitas. Co. 92024 (619) 753-3817
136705
DUP
TO FROM - C14 CIL ç c-
rti 1ep+.
SUBJECT DATE
G-e4 pôc /1 5/Z.7 /87
TcJ MESSAGE '' r Mvr/Cc ci pItcic' V ve3-J-
CL c2 (
4-1'L rr+. Thc j I7. TJii rpoc4 iJ1 2 k
" -13 z r w /
SIGNED
IRE
c*l.
bTFOMj® 4S 468 NO REPLY NECESSARY T REPLY REQUESTED - USE REVERSE SIDE
POLY PM(50 SETS) H
A
c F7 3 2 *
i /87
DECLARATION OF ESTABLISHMENT
OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
OF
LOT 50 - SHELTER COVE CONDOMINIUMS
8
TABLE OF CONTENTS
Page
ARTICLE 1 - DEFINITION OF TERMS
Section 1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
Articles
Assessment
Association
Association Property
Board or Board of Directors
By-Laws
Common Area
Common Expense
Common Interest
Condominium
Condominium Documents
Condominium Plan
Declarant
Declaration
Eligible Mortgage Holder
Eligible Requesting Mortgagee,
or Guarantor
Exclusive Common Area
First Lender, First Mortgagee,
First Mortgage Holder
First Mortgage
Member
Mortgage
Mortgagee
Mortgagor
Owner or Owners
Person
Project
Share
Unit
Unit Designation
Singular and Plural
Insurer
or
2
2
2
2
2
2
3
3
3
3
3
3
3
3
4
4
4
4
4
4
4
4
4
4
5
5
5
5
5
5
ARTICLE 2 - DESCRIPTION OF LAND AND IMPROVEMENTS 5
Section 2.1 - Condominium Plan Best Authority 5
2.2 - Property Description 5
2.3 - Property Boundaries 5
2.4 - Description of Individual Condominium 5
2.4.1 - Units 6
2.4.2 - Condominium 6
2.5 - Owners' Easements and Rights of
Enjoyment
2.6 - Easements
-1.-
r
TABLE OF CONTENTS (Cont'd)
Page
ARTICLE 3 - OWNERS' ASSOCIATION 7
Section 3.1 - Creation of Association 7
3.2 - Transfer of Membership 7
3.3 - Control and Maintenance of Common
Area and Other Areas 7
ARTICLE 4 - MANAGEMENT OF OWNERS' ASSOCIATION 8
Section 4.1 - Creation of Board of Directors 7
4.2 - Annual Meetings 8
4.3 - Owner Voting Rights 8
4.4 - Voting Rights 8
4.4.1 - Members' Right to Vote 8
4.4.2 - Voting 8
4.5 - Election of Board of Directors 8
4.6 - Meetings 9
4.7 - Voting Proxies 9
4.8 - Quorum 9
4.9 - Written Notice of Meetings and 9
Special Meetings
4.10 - Indemnification for Performance 9
of Duties
4.11 - Action by Written Consent 9
ARTICLE 5 - DUTIES AND POWERS OF OWNERS' ASSOCIATION 9
Section 5.1 - Administration of Project 9
5.2 - Authority of Board and Incorporator 9
ARTICLE 6 - COVENANT FOR MAINTENANCE ASSESSMENTS 18
Section 6.1 - Creation of Lien - Personal 18
Obligation of Assessments
6.2 - Basic Maximum Amount of Regular 19
Assessment
6.2.1 - Initial Regular Assessment 19
6.2.2 - Increase of Regular Assessment 19
by Board
6.2.3 - Certificate of Payment 19
6.3 - Special Assessments for Capital 20
Improvements and Emergency Needs
6.3.1 - Increase of Special Assessments 20
by Board
6.4 - Date of Commencement of Regular 20
Assessments
-ii-
TABLE OF CONTENTS (Cont'd)
Page
ARTICLE 6 (Cont'd)
Section 6.5 - Payment of Assessment by Owners
6.6 - Maintenance Fund
6.7 - Effect of Non-Payment of Assessments -
Lien Rights - Remedies of the
Association
6.8 - Homestead Waiver
6.9 - Curing of Default
6.10 - Priority of Assessment Lien -
Subordination of Lien
6.11 - Rights of Board - Waiver of Owners
6.12 - Purpose of Assessments
6.13 - Unallocated Taxes
6.14'- Exemption from Assessments
ARTICLE 7 - USE RESTRICTIONS
Section 7.1 - Condominium Use
7.2 - Nuisances
7.3 - Vehicle Restrictions
7.4 - Signs
7.5 - Animals
7.6 - Garbage and Refuse Disposal
7.7 - Radio and Television Antennas
7.8 - Right to Lease
7.9 - Use of Recreational Facilities by
Tenants
7.10 - Architectural Control
7.11 - Power Equipment and Car Maintenance
7.12 - Liability of Owners for Damage to
Common Area
7.13 - Drainage
7.14 - Laundry Drying
7.15 - Maintenance of Units
7.16 - Compliance with Law
ARTICLE 8 - GENERAL PROVISIONS
Section 8.1 - Right of Entry for Emergency Repair
8.2 - Continuing Liability for Assessments
8.3 - No Racial Restrictions
8.4 - Books and Records of the Association
8.5 - Taxes
8.6 - Enforcement of Declaration and By-Laws
21
21
21
21
22
22
22
22
23
23
23
23
24
24
24
25
25
25
25
26
27
27
27
27
28
28
28
29
29
29
29
29
29
-iii-
TABLE OF CONTENTS (Cont'cl)
Page
ARTICLE 8 (Cont'd)
Section 8.7 - Liberal Interpretation of Declaration 30
8.8 - Severability of Provisions 30
8.9 - Cumulative Remedies 30
8.10 - Successors and Assigns 30
8.11 - Waiver or Breach of Declaration 30
8.12 - Delivery of Notices and Documents 30
8.13 - Notification of Sale of Condominium 31
8.14 - Joint and Several Liability 31
8.15 - Encroachment Easements 32
8.16 - Limitation of Restrictions on 32
Declarant
8.17 - Determination of Costs and Expenses 33
ARTICLE 9 - UTILITIES AND EASEMENTS 33
Section 9.1 - Owners' Rights and Duties 33
9.2 - Easements for Utilities and Maintenance 34
9.3 - Association's Duties 34
9.4 - Underground 34
9.5 - Association Easements 34
9.6 - Declarant Easements 35
ARTICLE 10 - DESTRUCTION OF IMPROVEMENTS 35
Section 10.1 - Reconstruction with Election of 35
Owners
10.2 - Reconstruction Assessments 35
10.3 - Obligation of Board 35
10.4 - Determination Not to Rebuild 35
10.4.1 - Distribution of Insurance 36
Proceeds
10.4.2 - Recordation of Certificate 36
Not to Rebuild
10.5 - Destruction of Unit Improvements 36
10.6 - Condemnation 36
ARTICLE 11 - SUSPENSION OF THE RIGHT TO PARTITION 36
ARTICLE 12 - PROHIBITIONS AGAINST SEVERABILITY OF 37
COMPONENT INTEREST IN CONDOMINIUM
Section 12.1 - Prohibition of Severance 37
12.2 - Conveyance of Entire Condominium 37
- iv-
TABLE OF CONTENTS (Cont'd)
Page
ARTICLE 13 - TERM OF DECLARATION - COMPLIANCE WITH 37
RULE AGAINST PERPETUITIES AND RESTRAINTS
OF ALIENATION
ARTICLE 14 - PROTECTION OF LENDERS 37
Section 14.1 - Written Notification to Requesting 37
Mortgagees, Insurers or Guarantors
14.2 - Exemption from Right of First Refusal 38
14.3 - Subordination of Assessment Lien to 38
Mortgages
14.4 - Prior Approval of Eligible Mortgage 38
Holders
14.5 - Examination of Books and Records 40
14.6 - Reserves for Replacement 41
14.7 - Taxes, Assessments and Charges 41
14.8 - No Priority Over Rights of First 41
Mortgagees
14.9 - Professional Management of Project 41
14.10 - Notice to Lender 41
14.11 - Conflict 41
14.12 - Audited Statements 41
14.13 - Insurance 42
14.14 - Priority of Mortgage Lien 42
14.15 - Curing Defaults 42
14.16 - Resale 42
14.17 - Payment of Taxes or Premiums 43
ARTICLE 15 - BREACH 43
Section 15.1 - Right of Entry 43
15.2 - Nuisance 43
15.3 - Right of Lien Holder 43
15.4 - Enforcement 44
ARTICLE 16 - AMENDMENT 44
Section 16.1 - Subsequent to First Close of Escrow 44
16.2 - Prior to First Close of Escrow 44
ARTICLE 17 - ASSIGNMENT OF DECLARANT'S AND ASSOCIATION'S 45
RIGHTS
-v-
a)
TABLE OF CONTENTS (Cont'd)
Page
ARTICLE 18 - BINDING EFFECT OF COVENANTS, CONDITIONS 45
AND RESTRICTIONS
ARTICLE 19 - INVALIDITY OF ANY PROVISION 45
ARTICLE 20 - WAIVER 46
ARTICLE 21 - PARTIES SUBJECT TO PROVISIONS 46
ARTICLE 22 - ENFORCEMENT OF CERTAIN.BONDED OBLIGATIONS 46
Section 22.1 - Consideration by Board of Directors 46
22.2 - Consideration by the Members 46
ARTICLE 23 - RESTRICTION OF IMPOSITION OF MONETARY 47
PENALTIES BY THE ASSOCIATION
Section 23.1 - Assessments which May Not Become 47
a Lien
23.2 - Assessments which May Become 47
a Lien
ARTICLE 24 - MISCELLANEOUS 47
Section 24.1 - Headings 47
24.2 - Applicability of Corporations Code 48
- vi-
DECLARATION OF ESTABLISHMENT
OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
OF
LOT 50 - SHELTER COVE CONDOMINIUMS
THIS DECLARATION is made this day of ,
1987, by PETER GRAY and ELLEN GRAY, husband and wife, hereinafter
referred to as "Declarant", with reference to the following
facts:
WHEREAS, on or about the date of recordation of this
Declaration, in the Office of the County Recorder of San Diego
County, State of California, Declarant owns that certain real
property described in Exhibit "A", attached hereto and made a
part hereof (the "Property"). The Property with any Association
Property which may be acquired by the Association for the common
use and enjoyment of its Members shall hereafter be referred to
as the "Property".
WHEREAS, it is the desire and intention of the Declarant
together with the Association to create upon the Property a
condominium project in accordance with Section 1351(f) of the
California Civil Code, or any successor statute thereof (the
"Project"), consisting of two (2) Condominiums to be conveyed
and/or leased to various individuals subject to certain basic
protective restrictions, limitations, easements, covenants,
reservations, liens and charges as hereinafter set forth.
THEREFORE, pursuant to the provisions of Title 6, Part
IV, of Division 2 of the California Civil Code and Section 1468
of the California Civil Code, Declarant hereby declares that the
Property shall be held, conveyed, divided, encumbered,
hypothecated, leased, rented, used, occupied and improved only
upon and subject to the following uniform covenants, conditions,
restrictions, limitations, reservations, grants of easements,
rights, rights-of-way, liens, charges, and equitable servitudes,
all of which are hereby declared, established, expressed and
agreed: (1) to be in furtherance of a plan for the subdivision
and sale or lease of Condominiums in the Project as defined in
Section 1351(f) of the California Civil Code; (2) to be for the
benefit and protection of the Project, its desirability, value
and attractiveness; (3) to be for the benefit of the Owners in
the Project; (4) to run with the land and be binding upon all
parties having or acquiring any right, title or interest in the
Project or any portion thereof; (5) to inure to the benefit of
every portion of the Project and any interest therein; and (6) to
inure to the benefit of and be binding upon each successor and
assignee in interest of each Owner and of Declarant. Any
conveyance, transfer, sale, assignment, lease or sublease made by
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each current or future Owner, Declarant or by the Association
(ashereinafter defined) of a Condominium in the Project will and
hereby is deemed to incorporate by reference the provisions of
this Declaration, including, but not limited to, covenants,
conditions, restrictions, limitations, grants of easements,
rights-of-way, rights, liens, charges and equitable servitudes
contained herein. The Association or any Owner shall have a
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 restrictions, conditions, covenants and
reservations now or hereafter imposed by the provisions of this
Declaration or any of the other Condominium Documents, except
that only the Association shall have a right of enforcement with
respect to Assessment liens.
ARTICLE 1
DEFINITION OF TERMS
Whenever used in this Declaration, the following terms shall
mean:
1.1 "Articles" shall mean and refer to the Articles of
Incorporation or Association of the Association as amended from
time to time.
1.2 "Assessment" shall mean those charges levied by the
Board pursuant to the provisions of the Condominium Documents for
Regular Assessments, Special Assessments and Reconstruction
Assessments as hereinafter defined.
1.3 "Association" shall mean the Lot - 50 Shelter Cove
Condominium Association, an unincorporated association, for the
purpose of managing the Property. Each Owner shall become a
Member of the Association contemporaneously with the acquisition
of his or her Condominium, without further documentation of any
kind.
1.4 "Association Property" shall mean all real property and
the improvements thereon owned in fee, by easement, or leased
from time to time by the Association for the common use and
enjoyment of the Owners. The Association Property shall
specifically not include Condominiums that may be owned by the
Association for sale or lease to the public.
1.5 "Board" or "Board of Directors" shall mean and refer to
the governing body of the Association.
1.6 "By-Laws" shall mean and refer to the By-Laws of the
Association as amended from time to time.
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cIe))
1.7 "Common Area" shall mean the entire Project, excepting
all Units, specifically including without limitation below ten
(10) feet below the slab elevation of the structure built within
the land the Units and the air space beginning thirty-eight (38)
feet above the slab elevation of the structures built within the
Units.
1.8 "Common Expense" shall mean and include the actual and
estimated expenses of maintaining, managing, repairing and
operating the Common Area and any reasonable reserve for such
purposes as found and determined by the Board, management and
administration of the Association, management services, taxes,
insurance and fidelity bonds maintained by the Association,
security systems or services, including without limitation the
personnel or staff required for costs of water, propane and trash
collection provided to the Association and the Owners to the
extent not billed to the Owners, or any other expenses in
connection with the Common Area, the Association or as designated
as such in any of the Condominium Documents.
1.9 "Common Interest" shall mean the equal undivided
interest in and to the Common Area which is appurtenant to each
Unit as set forth in this Declaration.
1.10 "Condominium" shall mean a condominium as defined in
Sections 783 and 1351(f) of the Civil Code, consisting of an
undivided interest as a tenant in common in the Common Area of
the Project, coupled with a separate interest in space called a
Unit, the boundaries of which are described in the Condominium
Plan. The ownership of each Condominium shall include the
ownership of a Unit and an undivided interest in the Common Area
and membership in the Association.
1.11 "Condominium Documents" shall mean this Declaration,
as amended from time to time, the Exhibits, if any, attached
hereto, together with the other basic documents used to create
and govern the Project, including the Map, the Articles, the
By-Laws, and the Condominium Plan, but excluding unrecorded rules
and regulations adopted by the Board or the Association.
1.12 "Condominium Plan" shall mean and refer to the
recorded plan of the Units on the Project which identifies each
Unit and shows its dimensions pursuant to Civil Code Section
1351.
1.13 "Declarant" shall mean and refer to PETER GRAY
and ELLEN GRAY, husband and wife, their successors and assigns.
1.14 "Declaration" shall mean and refer to this enabling
Declaration, as amended or supplemented from time to time.
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1.15 "Eligible Mortgage Holder" shall mean a First Lender
who has provided to the Board a written request to receive
notification of and the right to vote or approve any
proposedamendment or action that requires the consent of a
percentage of Eligible Mortgage Holders. Wherever the vote or
written approval of Eligible Mortgage Holders is required, it
shall be deemed to mean such vote or approval of the percentage
specified based on one vote for each Condominium encumbered by
First Mortgage. To the extent that Declarants PETER GRAY and
ELLEN GRAY, husband and wife, are First Mortgagees, they shall
deemed to have made such written request and to be Eligible
Mortgage Holders.
1.16 "Eligible Requesting Mortgagee, Insurer or Guarantor"
shall mean a Mortgagee or an insurer or guarantor of a Mortgage
who has requested notice of certain matters from the Association.
1.17 "First Lender", "First Mortgagee" or "First Mortgage
Holder" shall mean a Person, entity, bank, savings and loan
association, insurance company, or financial institution holding
a recorded First Mortgage on any Condominium.
1.18 "First Mortgage" shall mean and refer to a Mortgage
which has priority over all other Mortgages encumbering a
Condominium.
1.19 "Member" shall mean and refer to a Person entitled to
Membership in the Association as provided herein.
1.20 "Mortgage" shall include a deed of trust as well as a
mortgage.
1.21 "Mortgagee" shall include a beneficiary or a holder of
a deed of trust as well as a mortgagee.
1.22 "Mortgagor" shall include the trustor of a deed of
trust as well as a mortgagor.
1.23 "Owner" or "Owners" shall mean and refer to the record
holder or holders of title, if more than one, of a Condominium in
the Project. This shall include any Person having a fee simple
title to any Condominium, including contract sellers, but shall
exclude Persons or entities having any interest merely as
security for the performance of an obligation. The term "Owner"
or "Owners" shall include Declarant and Association if they own
any Condominiums.
1.24 "Person" shall mean a natural person, a corporation, a
partnership, a trustee, or other legal entity.
a
be
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1.25 "Project" shall mean and refer to a Condominium
project as defined in Section 1351(f) of the California Civil
Code, or any successor statute thereof, upon the Property.
1.26 "Reciprocal Easement" shall mean those easements shown
on the condominium plan as "Reciprocal Lagoon Access Easement"
and "Reciprocal Guest Parking Easement", the extent of which
easements is set forth in Section 2.6 herein.
1.27 "Share" shall mean a one-half (1/2) undivided
interest, as tenant in common in and to the Common Area.
1.28 "Unit", which is synonymous with Residential Unit,
shall mean and refer to the separate interest in space as defined
in Section 1351(f) of the California Civil Code, or any successor
statute thereof, in the Project with the upper and lower
horizontal boundaries being planes above and below the surface of
the land as shown on the Condominium Plan as a Residential unit.
1.29 "Unit Designation" shall mean the number, letter, or
combination thereof, or other official designation(s) of a Unit
shown on the Condominium Plan. Each Unit is identified by
separate designation on the Condominium Plan, as unit followed by
a number.
1.30 Singular and Plural: The singular and plural number,
and the masculine, feminine and neuter gender, and capitalized
and lower case shall each include the other where the context
requires.
ARTICLE 2
DESCRIPTION OF LAND AND IMPROVEMENTS
2.1 Condominium Plan Best Authority. The following
description is intended for information purposes only, and in the
event of any conflict between this description and the
Condominium Plan, said Plan shall be deemed to conclusively
control.
2.2 Property Description. The Property consists of that
certain real property located in the County of San Diego, State
of California, and as more particularly described in Exhibit "A"
hereto.
2.3 Property Boundaries. The Property has within its
boundaries various Units and Common Area, as shown and described
on the Condominium Plan.
2.4 Description of Individual Condominium. Each
Condominium within the Project shall consist of a fee simple
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interest in and to a particular Unit, together with an undivided
interest as a tenant in common in and to the Common Area. The
Units and Common Area interests are as follows:
2.4.1 Units. Each of the Units, as separately shown,
numbered and designated in the Condominium Plan consists of the
ground and air space as designated in said Condominium Plan.
Each Unit includes all physical improvements, strutures and
utility lines and installations located within its boundaries
that the Owner has exclusive use of, including, without
limitation: landscaping, the residential building, garage and
any associated outbuildings.
2.4.2 Condominium. Each Owner shall have a one-half
(1/2) undivided interest as a tenant in common in the Common Area
together with a separate interest in space called a Unit, the
boundaries of which are described on the Condominium Plan in
sufficient detail to locate all boundaries thereof. Each Owner
may use the Common Area in accordance with the purposes for which
they are intended without hindering the exercise of or
encroaching upon the rights of any other Owners.
2.5 Owners' Easements and Rights of Enjoyment. Every Owner
shall have an easement and a right of enjoyment in and to the
Common Area which shall be subject to the following provisions:
2.5.1 The right of the Association to suspend the
voting rights for any period during which any Assessment against
his Unit remains unpaid, and for a period as set forth in the
By-Laws for any infraction of its published rules and regulations
after a hearing by the Board of Directors of the Association.
2.5.2 The right to impose a monetary penalty upon an
Owner for punitive damages and/or to reimburse the Association
for costs incurred by them to repair any damage to Common Areas
or facilities as a result of or condition caused by violation of
any of the limitations, restrictions, conditions and covenants.
This right shall be in addition to charges and other reasonable
late payment penalties imposed against an Owner because of
delinquent Assessments and/or charges to reimburse the
Association for loss of interest and for costs reasonably
incurred (including attorney fees) in its efforts to collect
delinquent Assessments and/or any other payment due.
2.6 Easements.
2.6.1 Each owner shall have a reciprocal easement for
use of these areas designated on a reciprocal guest parking
easement, and reciprocal lagoon access easement on the
Condominium plan which easements shall be appurtenant to Units 1
and 2.
2.6.2 The owner of Unit 2 shall have easements
designated on the condominium plan as "Electrical Meter Access
Easement for Unit 2" and "Jacuzzi Equipment, Fence & Landscape
Easement for Unit 2", which easement shall be appurtenant to Unit
2.
ARTICLE 3
OWNERS' ASSOCIATION
3.1 Creation of Association. Each Owner, including
Declarant to the extent that Declarant is an Owner, shall
automatically be a Member of the Association. Ownership of a
Condominium within the Project shall be the sole qualification
for Membership in the Association.
3.2 Transfer of Membership. The Association Membership of
each Owner (including Declarant) shall be appurtenant to the
Condominium giving rise to such Membership, and shall not
beassigned, transferred, pledged, conveyed or alienated in any
way, except upon the transfer of title to said Condominium and
then only to the transferee of title to said Condominium. Any
attempt to make a prohibited transfer shall be void. Any
transfer of title to a Condominium shall operate automatically to
transfer Membership in the Association appurtenant thereto to the
new Owner thereof.
3.3 Control and Maintenance of Common Area and Other Areas.
The Association, through its Board, shall have the obligation to
maintain, manage, operate, control, repair, replace and restore
the necessary improvements on or upon the Common Area or upon the
Association Property pursuant to the provisions of the
Condominium Documents and the provisions of any document
transferring any easement or obligation to the Association. In
the event the Board shall determine that any portion of the
Property required to be maintained by the Association has been
damaged or destroyed by any negligent or malicious act or
omission of any Owner, his guests, tenants, servants, agents or
invitees, such Owner shall be responsible for repairing such
damage in a timely manner. In the event any such Owner fails to
accomplish any such repair, then after thirty (30) days' notice
to such Owner and a public hearing in accordance with the
provisions for public hearings contained elsewhere in the
Condominium Documents, the Association shall make such repairs or
replacements and the cost thereof shall be levied to such Owner
as a Special Assessment. Each Owner shall maintain, repair,
replace and restore in a clean, sanitary and attractive condition
all portions of all of the improvements within his Unit. The
Association shall have the responsibility to manage and maintain
or cause to be maintained all of the Common Area in a state of
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high quality so as to keep the whole Project in a first-class
condition and in a good state of repair.
ARTICLE 4
MANAGEMENT OF OWNERS' ASSOCIATION
4.1 Creation of Board of Directors. The Members of the
Association shall hold an organizational meeting of the
Association within forty-five (45) days after the close of the
sale of the first Condominium which represents the fifty-first
(51st) percentile interest to be sold, but in no event shall the
meeting be held later than six (6) months after the closing of
the sale of the first Condominium, at which time a Board of
Directors shall be elected by vote of Members of the Association.
All positions on the Board of Directors shall be filled at that
election. Prior to the organizational meeting, the initial Board
named by the incorporator of the Association shall manage the
affairs of the Association.
4.2 Annual Meetings. Annual meetings of Owners shall be
held on the same day of the same month of each year after the
organizational meeting or as provided in the By-Laws. At the
organizational meeting, the Owners shall elect a Board of
Directors pursuant to the By-Laws.
4.3 Owner Voting Rights. Each Condominium, regardless of
the number of Owners thereof, shall be represented in the
Association by only one (1) vote as provided in the By-Laws.
4.4 Voting Rights.
4.4.1 Members' Right to Vote. Only memberships shall
have voting rights.
4.4.2 Voting. With the exception of Article 22, no
regulation which requires the approval of a prescribed majority
of the voting power of members of the Association other than the
subdivider for action to be taken by the Association is intended
to preclude the subdivider from casting votes attributable to
subdivision interest which he or she owns. Other than Article
22, any action which requires the approval of a prescribed
majority of the voting power of members of the Association other
than the subdividers require (the vote or written assent of a
bare majority of the total voting power of the Association, as
well as the vote or written assent of a bare majority of the
total voting power of members other than the subdivider).
4.5 Election of Board of Directors. A new Board shall be
elected pursuant to the By-Laws.
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4.6 Meetings. The Board shall meet as provided in the
By-Laws.
4.7 Voting Proxies. Voting may be carried out either in
person or by proxy.
4.8 Quorum. A quorum for transaction of business at a
meeting of Association Members shall be as provided in the
By-Laws.
4.9 Written Notice of Meetings and Special Meetings. A
special meeting of the Members of the Association shall be
promptly called by the Board upon: (1) the vote for such a
meeting by a majority of a quorum of the Board; or (2) receipt of
a written request for a special meeting signed by Members
representing at least five percent (5%) of the total voting power
of the Association. Written notice of each meeting of Members
shall be given as provided in the By-Laws.
4.10 Indemnification for Performance of Duties. The
Association shall indemnify any present or former director,
officer, employee or other agent of the Association to the
fullest extent authorized under California Corporations Code
Section 7237, or any successor statute, and may advance to any
such person funds to pay expenses that may be incurred in
defending any action or proceeding on receipt of an undertaking
by or on behalf of such person to repay such amount, unless it is
ultimately determined that such person was not entitled to
indemnification under this section.
4.11 Action by Written Consent. The Board may take actions
without a meeting as provided in the By-Laws.
ARTICLE 5
DUTIES AND POWERS OF (NERS' ASSOCIATION
5.1 Administration of Project. The Owners, and each of
them, together with all parties bound by this Declaration,
covenant and agree that the administration of the Project shall
be in accordance with the provisions of this Declaration, the
By-Laws and such rules and regulations as may be adopted by the
Board, and amendments, changes and modifications thereto as may
come into effect from time to time. In the event of any
inconsistency between the provisions of this Declaration and the
provisions of the By-Laws, or said rules and regulations, the
provisions of this Declaration shall prevail.
5.2 Authority of Board and Incorporator. Prior to the
organizational meeting and thereafter, until their successors are
elected, the initial Board or its duly appointed successors shall
S
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manage the affairs of the Association. The Board as constituted,
from time to time, shall at all times be responsible for the
day-to-day operation and management of the affairs of the
Association, and shall have the sole power and duty to perform
and carry out the powers and duties of the Association, as set
forth in this Declaration and the By-Laws, together with the
powers and duties otherwise expressly delegated to the Board by
this Declaration or by the By-Laws, except for action or activity
expressly set forth herein or in the By-Laws, or the California
Corporations Code, as requiring the vote or assent of Members of
the Association, or a given percentage thereof. Without limiting
the generality of the foregoing, the Board shall have the
following powers and duties:
5.2.1 To enforce the applicable provisions of the
Condominium Documents and other instruments for the management
and control of the Project. Subject to the provisions of the
Condominium Documents, the Board shall have the right to adopt
reasonable rules and to amend the same from time to time,
relating, without limitation, to the use, management and control
of the Common Area and reciprocal easements, and any recreational
and other facilities situated thereon, by Owners and their
tenants or guests, and conduct of such Persons with respect to
automobile parking, outside storage of boats, trailers, bicycles
and other objects, disposal of waste materials, drying of
laundry, control of pets and other activities, which, if not so
regulated, might detract from the appearance of the Project or
offend or cause inconvenience or danger to Persons residing or
visiting therein. Such rules may provide that Special
Assessments may be levied against the Owner whose occupants leave
property on the Common Area in violation of the rules. The Board
may provide in such rules for reasonable rental and cleanup
charges to be made with respect to the use of any storage areas
or facilities which may exist upon the Common Area or Reciprocal
Easements, provided that such charge shall in no way impose
liability upon the Board or any of its members for damage or loss
to property so stored, it being intended that the use of any such
storage area or facility be solely at the risk of the Person
using the same. A copy of such rules and all amendments thereto
shall be mailed to each Owner and a copy shall be posted in one
or more places on the Common Area or Reciprocal Easements where
the same may be conveniently inspected;
5.2.2 To pay taxes and Assessments which are or could
become a lien on the Common Area or some portion thereof;
5.2.3 To delegate its powers to committees, officers,
or employees including without limitation professional managers;
5.2.4 To contract for materials and/or services for
the Common Area, Reciprocal Easements or the Association with the
term of any service contract limited to a duration of one year,
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except with approval of: (l) a majority of the total voting
power of the Association; and (2) a majority of the votes of
Members other than Declarant. The limitation of this Section
5.2.4 shall not apply to exceptions provided in the By-Laws;
5.2.5 To maintain the Common Area, Reicpirocal
Easement, all improvements thereon and all utilities thereunder,
except those maintained by public utility companies, in good,
clean, attractive and sanitary order and repair and to perform
its obligations under Section 3.3 of this Declaration;
5.2.6 To operate all recreational equipment and
facilities located within the Common Area and Reciprocal
Easements;
5.2.7 To repaint surfaces of all buildings situated on
the Common Area and Reciprocal Easements, as such repainting is
required in order to preserve the attractiveness of the Project;
5.2.8 To maintain, repair, replace, restore, operate
and manage all of the Common Area, Reciprocal Easements, and all
facilities, improvements, buildings, furnishings, equipment and
landscaping thereon, and all existing or future easements for
road or other purposes and other property that is owned by the
Association. Maintenance shall include (without limitation):
Painting, maintaining, cleaning, repairing and replacing of all
facilities. The Association, through its Board, shall have the
obligation to maintain, manage, operate, control, repair, replace
and restore the necessary improvements on or upon the Common Area
or upon the Association Property pursuant to the provisions of
the Condominium Documents and the provisions of any document
transferring any easement or obligation to the Association;
5.2.9 In the event the Board shall determine that any
portion of the Property required to be maintained by the
Association has been damaged or destroyed by any negligent or
malicious act or omission of any Owner, his guests, tenants,
servants, agents or invitees, such Owner shall be responsible for
repairing such damage in a timely manner. In the event any such
Owner fails to accomplish any such repair, then after thirty (30)
days' notice to such Owner and a public hearing in accordance
with the provisions for public hearings contained elsewhere in
the Condominium Documents, the Association shall make such
repairs or replacements and the cost thereof shall be levied to
such Owner as a Special Assessment. Each Owner shall maintain,
repair, replace and restore in a clean, sanitary and attractive
condition all portions of all of the improvements within his
Unit. If an Owner shall fail to make repairs or replacements to
his Unit which are the responsibility of such Owner, as provided
in the rules and regulations, By-Laws or this Declaration, then
after thirty (30) days' notice to the Owner and a public hearing,
the Association shall enter the Unit (if necessary) and make such
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repairs or replacements, and the cost thereof shall be levied to
such Owner as a Special Assessment;
5.2.10 To pay premiums, taxes and other Assessments
against the Common Area;
5.2.11 To meet the costs of any liability insurance
and fire insurance of the Common Area, Reciprocal Easements,
fidelity bonds, Board of Director errors and omissions insurance,
out-of-pocket expenses of the Board relating to the operation of
the Association, legal and accounting fees and, including without
limitation, fees of any manager and a reasonable reserve for
contingencies with respect to the Common Area, and Reciprocal
Easements.
5.2.12 To contract for fire, casualty, liability and
other insurance on behalf of the Association;
5.2.12.1 The liability insurance policy shall
insure the Association, the Declarant for as long as Declarant is
an Owner, and the agents and employees of each, and the Owners
and the respective family members, guests and invitees of the
Owners against any liability incident to the ownership or use of
the Common Area, Reciprocal Easements and Association Property or
any other areas under the supervision of the Association. The
limits of the insurance shall be not less than One Million
Dollars ($1,000,000.00) for claims arising out of a single
occurrence for bodily injury, deaths of persons and property
damage;
5.2.12.2 The Board shall carry fire insurance
with extended coverage endorsement or other form of coverage
providing protection equal to or greater than the amount of the
full insurable replacement value (as determined by appraisal or
such other method as shall be deemed appropriate by the Board and
be acceptable to the insurance carrier and reviewed at least
annually) of all insurable improvements (including furnishings
and equipment related thereto) situated upon the Property. Such
insurance shall be payable to the Board. In the event of damage
to or destruction of any such improvement, the Board shall cause
the same to be repaired, rebuilt or replaced. In the event the
cost of such repair, rebuilding or replacement exceeds the
insurance proceeds payable by reason of said damage or
destruction, Reconstruction Assessments shall be levied in
accordance with the provisions of Articles 6 and 10. In the
event the amount of such insurance proceeds for damage to
improvements on the Common Area exceeds the cost of such repair,
rebuilding or replacement, the surplus shall be retained by the
Association and shall be taken into consideration in determining
the amount of the Regular Assessment for the next budget period;
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5.2.12.3 Further, the Board shall carry a blanket
policy or policies of casualty insurance with a special form
all-risk cover coverage endorsement for the full insurable
replacement cost, from time to time, of the insurable
improvements on the Common Area and Reciprocal Easements (or such
other blanket fire and casualty insurance giving substantially
equal or greater protection) insuring the Association, for the
use and benefit of the Owners, designated by name. The
loss-payable clause shall be in favor of the Association for each
Owner and each such Owner's Mortgagees, if any. Such policy
shall contain provisions, to the extent possible, protecting
against any reduction in the amount of the proceeds payable, as a
result of any fire or similar insurance independently carried by
any Owner of or in respect of such Owner's interest in and to the
Common Area or Reciprocal Easements.
5.2.12.4 The Board shall have authority to obtain
such errors and omissions insurance or other insurance as it
deems advisable, insuring the Board and each Member thereof
against any liability for any act or omission in carrying out
their obligations hereunder, or resulting from their membership
on the Board, or any committee thereof;
5.2.12.5 The premiums for insurance purchased
pursuant to the foregoing shall be a Common Expense of the
Association;
5.2.12.6 If any additional insurance is required
due to extra hazardous use made of any Unit or because of
improvements to any Unit installed by its Owner, which increases
the premiums for the required amount of coverage, the costs
thereof shall be assessed to the Owner of such Unit as a Special
Assessment;
5.2.12.7 It is the express obligation of each of
the Owners of such Units to purchase such fire and casualty
insurance as he may deem advisable for his own account and at his
own expense to cover improvements within his Unit not insured by
the Association, except that the carrying of any insurance
individually by any Owner shall not relieve him of the obligation
to pay such portion of Regular Assessments as may be made, from
time to time, for the purpose of paying premiums or other charges
on fire and casualty insurance carried or contracted for by the
Board, for the benefit of the entire Project. No such insurance
coverage or the terms of any such insurance policy shall defeat
or contravene the purposes and intent of Article 10 (Destruction
of Improvements) hereof;
5.2.12.8 Additionally, the Board may purchase and
carry flood hazard insurance and earthquake insurance in the
maximum amount available, in the event the area in which the
Project is located is designated by the Office of Housing and
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Urban Development as an area having special flood or earthquake
hazards;
5.2.12.9 All insurance policies purchased by the
Board for the mutual benefit of all Owners shall contain a
provision that each Owner will receive a notice from the
insurance company that said policy is in effect and that each
Owner will receive ten (10) days' notice prior to cancellation or
termination of said policy for any reason whatsoever;
5.2.13 To enter upon any privately owned Unit where
necessary in connection with construction, maintenance or repair
for the benefit of the Common Area or the Owners;
5.2.14 To send to each Member of the Association
written notice of regular and special meetings. Except for
special meetings called at the request of five percent (5%) of
the voting power of the Owners, the same notice as for regular
meetings shall be provided. The notice shall specify the place,
day and hour of the meeting and, in the case of a special
meeting, the nature of the business to be undertaken;
5.2.15 The following financial statements and related
information for the Association shall be regularly prepared and
distributed to all Members as follows:
5.2,15.1 A pro forma operating budget for each
fiscal year shall be distributed not less than forty-five (45)
days or more than sixty (60) days prior to the beginning of the
fiscal year. Each such budget shall include all of the
following:
5.2.15.1.1 The estimated revenue and
expenses on an accrual basis. The identification of the total
cash reserves currently set aside for replacement or major repair
of common facilities and for contingencies.
5.2.15.1.2 An itemized estimate of the
remaining life of, and the methods of funding used to defray the
future repair, replacement, or additions to, those major
components of the Common facilities and areas which the
Association is obligated to maintain.
5.2.15.1.3 A general statement addressing
the procedures used for the calculation and establishment of
those reserves to defray the future repair, replacement, or
additions to those major components of the Common Area and areas
that the Association is obligated to maintain.
5.2.15.2 A balance sheet, as of an accounting
date which is the last day of the month closest in time to six
(6) months from the date of closing of the first sale of a
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Condominium, and an operating statement for the period from the
date of such first closing to the said accounting date, within
sixty (60) days after such accounting date. This operating
statement shall include a schedule of Assessments received and
receivable itemized for each Condominium and identified by the
number of the Condominium and the name of the entity assessed.
5.2.15.3 An annual report consisting of the
following shall be distributed within one hundred twenty (120)
days of the close of the fiscal year:
5.2.15.3.1 A balance sheet as of the end of
the fiscal year;
5.2.15.3.2 An income statement for the
fiscal year;
5.2.15.3.3 A statement of changes in
financial position for the fiscal year;
5.2.15.3.4 Any information required to be
reported under Section 8322 of the Corporations Code as currently
enacted or subsequently amended.
5.2.15.3.5 A statement of the place where
the names and addresses of the current Members can be found.
In the event the gross income to the Association
exceeds Seventy-Five Thousand Dollars ($75,000.00) in any fiscal
year, the review of the above-noted annual report shall be
prepared in accordance with generally accepted accounting
principles by a licensee of the California State Board of
Accountancy. If such annual report is not prepared by an
independent accountant, it shall be accompanied by the
certificate of an authorized officer of the Association stating
that the statements were prepared without audit from the books
and records of the Association.
5.2.15.4 A statement describing the Association's
policies and practices in enforcing lien rights or the legal
remedies for default in payment of its Assessments against its
Members shall be distributed annually during the sixty (60) day
period immediately preceding the beginning of the Association's
fiscal year.
5.2.16 To establish and collect Regular Assessments to
cover the Common Expenses;
5.2.17 To establish and collect Special Assessments
for capital improvements or other purposes in accordance with the
Condominium Documents to all Owners on the same basis as the
allocation prescribed for Regular Assessments;
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5.2.18 To file liens against Owners for non-payment of
Assessments duly levied and to foreclose said liens;
5.2.19 To receive complaints concerning violations of
the Restrictions, By-Laws and/or other instruments for management
and control of the Association; to hold public or private
hearings to determine whether or not to discipline Members of the
Association who violate said documents or instruments; to suspend
use privileges and voting rights of Members who violate said
documents or instruments after a hearing on the alleged violation
has been held pursuant to the provisions of the By-Laws;
5.2.20 To acquire and hold for the benefit of the
Owners tangible and intangible Personal property and to dispose
of same by sale or otherwise;
5.2.21 To bond any members of the Board or any Person
who participates in management of the affairs of the Association;
5.2.22 Except as provided to the contrary in the
Condominium Documents, any agreement for professional management
and any other contract providing for services of the Declarant,
developer, sponsor or builder shall not exceed three (3) years in
duration and shall be terminable (a) for cause on not -more than
thirty (30) days' written notice by the Association, and (b)
without cause upon ninety (90) days' written notice to either
party without payment of a termination fee.
5.2.23 The Board shall carry worker's compensation
insurance covering all Persons employed by it in performance of
its responsibilities under this Declaration and shall obtain
fidelity bonds to cover the maximum funds that will be in the
custody of the Association or its management agent at any time
while the bond is in force and should be written in an amount
equal to not less than three (3) months' aggregate of the Regular
Assessments on all Condominiums.
5.2.24 With respect to each contract made by the Board
for work and/or materials related to the maintenance, repair
rebuilding or replacement of any building, structure or other
improvement situated upon the Common Area or Reciprocal Easements
in which the amount to be paid by the Board exceeds Five Thousand
Dollars ($5,000.00), the Board shall secure at least three bids
from responsible contractors and shall accept the lowest bid so
obtained unless the Board determines that there is good cause to
accept a higher bid. If the amount of the contract exceeds the
sum of One Thousand -Dollars ($1,000.00) the Board shall require
the contractor to furnish a completion bond assuring completion
of the work and payment of all labor and materials bills for
which a lien on the Common Area or Reciprocal Easement or any
Condominium would be claimed. The Board shall require from each
contractor which it engages satisfactory evidence that adequate
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worker's compensation and liability insurance is carried with
respect to the employees and activities of such contractor. In
cases where a completion bond is not required, the Board shall
require labor and material releases to be furnished by the
contractor prior to making payment to same, unless the Board
deems such requirements to be impractical or unnecessary to
afford protection against liens.
5.2.25 The Board may not without the vote or written
assent of: (a) a majority of the total voting power of the
Association, and (b) a majority of the votes of members other
than Declarant:
5.2.25.1 Incur aggregate expenditures for capital
improvements to the Common Area or Reciprocal Easements in any
fiscal year in excess of five percent (5%) of the Common Expenses
of the Association for that fiscal year;
5.2.25.2 Sell during any fiscal year property of
the Association having an aggregate fair market value greater
than five percent (5%) of the Common Expenses of the Association
for that fiscal year
5.2.25.3 Pay compensation to members of the Board
or to officers of the Association for services performed in the
conduct of the Association's business; provided, however, that
the Board may cause a member of the Board or officer to be
reimbursed for expenses incurred in carrying on the business of
the Association;
5.2.25.4 Enter into a contract with a third
person where the third person will furnish goods or services for
the Common Area, Association Property or the Association for a
term longer than one (1) year except as otherwise expressly
permitted in the Condominium Documents.
5.2.26 The Association shall have the authority to
obtain, for the benefit of all of the Condominiums, all water,
gas and electric service and refuse collection, and cable
television.
5.2.27 The Association shall have authority by
document signed or approved by three-fourths (3/4) of the total
voting power of the Association, including three-fourths (3/4) of
the Members other than Declarant, to grant easements in addition
to those shown on the Map, where necessary for utilities, cable
television, and sewer facilities within the Common Area.
5.2.28 The Association shall have the power to acquire
by gift, purchase or otherwise own, hold, improve, build upon,
operate, maintain, convey, sell, lease, transfer, or otherwise
dispose of real or personal property in connection with the
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affairs of the Association subject to the provisions of Section
5.2.25 above. Any transfer of property shall be by document
signed or approved by three-fourths (3/4) of the total voting
power of the Association which shall include three-fourths (3/4)
of the Members other than Declarant.
5.2.29 The Association shall have the power to borrow
money, and only with the assent by vote or written consent of
three-fourths (3/4) of the total voting power of the Association,
including three-fourths (3/4) of the Members other than
Declarant, to mortgage, pledge, deed in trust, or hypothecate,
any or all of its real or Personal property as security for money
borrowed or debts incurred.
5.2.30 The Association shall have the power to
dedicate all or any part of the Common Area to any public agency,
authority or utility for such purposes, subject to such
conditions as may be agreed to by the Members. No such
dedication shall be effective unless an instrument has been
signed by three-fourths (3/4) of the total voting power of the
Association, including three-fourths (3/4) of the Members other
than Declarant, agreeing to such dedication.
5.2.31 The Association shall have the power to limit
the number of Owners' tenants or guests who may use the
Reciprocal Easement facilities, provided that all limitations
apply equally to all Owners, unless imposed for disciplinary
reasons, after notice of hearing.
5.2.32 The Association shall have the power to levy
Special Assessments for punitive or actual damages and costs
against Members who violate the By-Laws, this Declaration or the
rules and regulations of the Association, after compliance with
and subject to the procedures and limitations set forth in this
Declaration and in the By-Laws, including without limitation
Article 23 of this Declaration.
ARTICLE 6
COVENANT FOR MAINTENANCE ASSESSMENTS
6.1 Creation of Lien - Personal Obligation of Assessments.
Declarant, for each Unit owned by it within the Project, hereby
covenants, and each Owner of any Unit within the Project, by
acceptance of a deed therefor, whether or not it shall be so
expressed in any such deed or other conveyance, is deemed to
covenant and agree to pay to the Association: (a) Regular
Assessments; (b) Special Assessments for capital improvements and
other purposes as provided in the Condominium Documents; and
(c) Reconstruction Assessments. All of the foregoing Assessments
shall be fixed, established and collected from time to time, as
am
hereinafter provided. Subject to Article 23 of this Declaration,
the Regular, Special, and Reconstruction Assessments, together
with such interest thereon and costs of collection thereof, as
hereinafter provided, shall be a continuing lien upon the
Condominium against which each such Assessment is made, which
lien shall be created and enforced in accordance with the
provisions of this Article 6. Each such Assessment (and all
other Assessments levied in accordance with this Declaration),
together with late charges, interest, costs, penalties and
reasonable attorneys' fees, as provided for herein, shall also be
the joint and several personal obligations of each Person who was
an Owner of such Condominium at the time the Assessment fell due.
6.2 Basic Maximum Amount of Regular Assessment.
6.2.1 Initial Regular Assessment. A Regular
Assessment shall be levied against each Owner for such Owner's
proportionate share of the estimated Common Expenses for the
forthcoming fiscal year, which Regular Assessments shall be paid
in monthly installments as established by the Board.
6.2.2 Increase of Regular Assessment by Board. The
Board may not, without the vote or written assent of a majority
of the voting power of the Association residing in Members other
than Declarant, impose a Regular Assessment per Condominium which
is more than twenty percent (20%) greater than the Regular
Assessment for the immediately preceding fiscal year. In
addition, such Assessments are also subject to the provisions of
Civil Code Section 1366 (and successor statutes) as applicable,
which currently provides that a Regular Assessment that is more
than ten percent (10%) greater than the Regular Assessment for
the Association's preceding fiscal year cannot be imposed without
approval of Owners casting a majority of votes at a meeting or
election of the Association conducted in compliance with Chapter
5 (commencing with Section 7510) of Part 3 of Division 2 of Title
1 of the Corporations Code and Section 7613 of the Corporations
Code, unless the Assessment increase is for one of the following
purposes:
6.2.2.1 The maintenance or repair of the Common
Area or other areas which the Association is obligated to
maintain or repair including, but not limited to, the payment of
insurance premiums, the payment of utility bills, the costs
incurred in the maintaining or repairing structures or
improvements, and funding reserves.
6.2.2.2 Addressing emergency situations.
6.2.3 Certificate of Payment. The Association shall,
upon demand, furnish to any Owner liable for Assessments a
certificate in writing signed by two (2) officers of the
Association, setting forth whether the Assessments on a specified
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Condominium have been paid and the amount of delinquency, if any.
A reasonable charge per certificate may be made by the Board for
issuance of said certificates. Such certificates shall be
conclusive evidence of payment of any Assessment therein stated
to have been paid.
6.3 Special Assessments for Capital Improvements and
Emergency Needs. In any fiscal year, the Board may not, without
the vote or written assent of a majority of the voting power of
the Association residing in Members other than Declarant, levy
Special Assessments to defray the costs of any action or
undertaking on behalf of the Association which in the aggregate
exceed five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year.
6.3.1 Increase of Special Assessments by Board. In
addition, such Assessments are also subject to the provisions of
Civil Code Section 1366 (and successor statutes), as applicable,
which currently provides that Special Assessments which in the
aggregate exceed five percent (5%) of the budgeted gross expenses
of the Association for that fiscal year cannot be imposed without
the approval of Owners casting a majority of the votes at a
meeting or election of the Association conducted in accordance
with the statutes described in Section 6.2.2 above, unless such
increase is for one of the following purposes:
6.3.1.1 The maintenance or repair of the Common
Area or other areas which the Association is obligated to
maintain or repair, including, but not limited to, the payment of
insurance premiums, the payment of utility bills, the costs
incurred in maintaining or repairing structures or improvement,
and funding reserves.
6.3.1.2 Addressing emergency situations.
The provisions herein with respect to Special
Assessments do not apply in the case where the Special Assessment
against a Member is a remedy utilized by the Board to reimburse
the Association for penalties or for costs incurred in bringing
the Member and his subdivision interest into compliance with the
provisions of this Declaration. Special Assessments levied
against all Owners shall be levied upon the same basis as
prescribed for levying Regular Assessments.
6.4 Date of Co
Assessments provided
Condominiums covered
Declarant and/or the
following conveyance
Owner.
nmencement of Regular Assessments. Regular
for herein shall commence as to all
by the Declaration, including those owned by
Association, on the first day of the month
of the first Condominium to an individual
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6.5 Payment of Assessment by Owners. Regular Assessments
shall be paid by each Owner, including the Declarant and/or the
Association to the extent they are an Owner, in equal monthly
installments in advance, on the first day of each month. After
Assessments have commenced, such Assessments shall be prorated
between the seller and buyer through escrow for the month in
which escrow closes. Special Assessments shall be paid within
thirty (30) days of receipt of a request to pay same. The voting
rights attributable to each Condominium shall not vest until
Assessments against those interests have been levied by the
Association.
6.6 Maintenance Fund. Assessment charges so collected
shall be promptly deposited in a commercial bank account in a
bank to be selected by the Board, which account shall be clearly
designated in the name of the Association. The Board shall have
exclusive control of said account and shall be responsible to the
Owners for the maintenance of accurate reports thereof at all
times. Assessments collected for reserves, capital improvements,
or for the reconstruction of any capital improvements can only be
used for the purposes for which such funds were collected.
6.7 Effect of Non-Payment of Assessments - Lien Rights -
Remedies of the Association. Subject to Article 23 of this
Declaration, the Board shall have authority to create and enforce
a lien with power of sale on each separate Condominium to secure
payment of the amount of any Assessment, whether Regular,
Reconstruction or Special, assessed to the Owner(s) thereof, to
the full extent permitted by applicable law, by complying with
provisions of Sections 1366 and 1367 of the California Civil Code
and other applicable law. An action may be brought to foreclose
or exercise the power of sale by the Board only. Reasonable
attorneys' fees, expenses in connection with the collection of
the debt secured by such lien or foreclosure of lien, and
interest charges and late charges not exceeding the amount
permitted by Civil Code Section 1366 or successor statutes shall
be determined by the Board and paid by the Owner against whom
such action is brought and secured by the lien. A certificate,
signed and acknowledged, confirming the existence of the
indebtedness secured by the lien on any Condominium hereunder,
shall be conclusive on the Board and the Owners as to the amount
of such indebtedness, on the date of the certificate, as to all
Persons who rely thereon in good faith and such certificate shall
be furnished to any Owner upon request at a reasonable fee.
6.8 Homestead Waiver. Each Owner, to the extent permitted
by law, does hereby waive to the extent of any liens created
pursuant to this Article, the benefit of any homestead or
exemption law of the State of California in eftect at the time
any Assessment becomes delinquent or any lien is imposed,
pursuant to the terms hereof.
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6.9 Curing of Default. Upon the timely payment or other
satisfaction of all delinquent Assessments set forth in the
Notice of Assessment filed and recorded in accordance with
applicable law, and all other Assessments which have become due
and payable with respect to the Condominium as to which such
Notice of Assessment was filed and recorded, following the date
of such recordation, together with all costs (including
reasonable attorney's fees) and all late charges and interest
which have accrued thereon, the Board shall cause to be filed and
recorded a further notice, stating the satisfaction and release
of the lien created by the Notice of Assessment. The Notice may
be executed by any officer of the Association or by any
authorized representative of the Board. A reasonable fee
covering the cost of preparation and recordation of the Notice of
Release and Satisfaction shall be paid to the Association prior
to execution, filing and recordation of such Notice of Release
and satisfaction of the lien created by the Notice of Assessment.
For purposes of this paragraph, the term "costs" shall include
costs and expenses actually incurred or expended by the
Association in connection with the cost of preparation and
recordation of the Notice of Assessment and in efforts to collect
the delinquent Assessments secured by the lien created by the
notice of Assessment, and shall also include a reasonable sum for
attorneys' fees actually incurred.
6.10 Priority of Assessment Lien - Subordination of Lien.
Any lien created or claimed under the provisions of this
Declaration is expressly made subject and subordinate to the lien
of any First Mortgage upon a Condominium as provided in Section
14.3 of this Declaration.
6.11 Rights of Board - Waiver of Owners. Each Owner hereby
vests in and delegates to the Board, or its duly authorized
representatives, the right and power to bring all actions at law
or lien foreclosures, whether judicially or by power of sale or
otherwise, against any Owner or Owners for the collection of
delinquent Assessments in accordance herewith, and hereby
expressly waives any objection to the enforcement in accordance
with this Declaration of the obligation to pay Assessments as set
forth herein.
6.12 Purpose of Assessments. The Assessments levied by the
Association shall be used to promote the economic interest,
recreation, health, safety, and welfare of all the Owners in the
Project and for the improvement and maintenance of the Common
Area and Reciprocal Easement for the common good of the Project
and for such other purposes deemed to be in the best interests of
the Association by the Board. Subject to the limitations
contained in the Condominium Documents, including without
limitation the requirement to obtain the approval of the
membership of the Association for increases in excess of certain
stated amounts, Regular Assessments shall be levied for the
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payment of Common Expenses of the Association. Reconstruction
Assessments shall be levied to cover cost of repair and
reconstruction of improvements on the Common Area in excess of
insurance proceeds available for such purposes, and Special
Assessments shall be levied for any other act or undertaking of
the Association, including without limitation the cost of any
installation, construction, replacement or reconstruction of a
capital improvement upon the Common Area or Association Property.
6.13 Unallocated Taxes. In the event that any taxes are
assessed against the Common Area or Association Property or the
personal property of the Association, rather than against the
Units, said taxes shall be included in the Regular Assessments
made under the provisions of Article 6 of this Declaration or, if
necessary, a Special Assessment may be levied against the Units
in any amount equal to said taxes, to be paid in two (2)
installments thirty (30) days prior to the due date of each tax
installment.
6.14 Exemption from Assessments. All property dedicated
to, and accepted by, a local public authority or public agency
shall be exempt from the Assessments created herein. However, no
Condominium owned by any public authority shall be exempt from
said Assessments.
ARTICLE 7
USE RESTRICTIONS
In addition to all of the covenants contained herein, the
use of the Property and each Unit therein is subject to the
following:
7.1 Condominium Use. Except as otherwise provided in this
Declaration, and except for Association and Declarant, no
Condominium shall be occupied and used for other than residential
purposes by the Owners, their tenants, and social guests, and no
trade or business shall be conducted, except a residential Unit
may be used as a combined residence and executive or professional
office by the Owner thereof and his tenants to the extent
permitted by applicable law, ordinances or current use permit, so
long as such use does not interfere with the quiet enjoyment by
other Owners. Only permanent residential structures shall be
permitted to be placed on a Unit and no tent, shack, trailer,
basement, garage, outbuilding, or structure of a temporary
character shall be used at any time as a residence, either
temporarily or permanently.
7.1.1 Residents shall be limited as follows:
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e)
7.1.1.1 No more than two (2) Persons per bedroom
in any Unit shall be permitted as permanent residents
("permanent" means more than ninety (90) days out of each twelve
(12) month period).
7.1.1.2 No Unit or Units or any portion thereof
in the Project shall be leased, subleased, occupied, rented, let,
sublet, or used for or in connection with any time-sharing
agreement, plan, program, or arrangement, including without
limitation, any so-called "vacation license", "travel club",
"extended vacation", or other Membership or time-interval
ownership arrangement. The term "time-sharing" as used herein
shall be deemed to include, but shall not be limited to, any
agreement, plan, program, or arrangement under which the right to
use, occupy, or possess the Unit or Units or any portion thereof
in the Project rotates among various Persons, either corporate,
partnership, individual, or otherwise, on a periodically
recurring basis for value exchanged, whether monetary or
like-kind use privileges, according to a fixed or floating
interval or period of time of twenty-five (25) consecutive
calendar days or less.
7.1.2 All driveways within Units must be maintained by
the Owner of the Unit in first class condition.
7.2 Nuisances. No noxious, illegal, or seriously offensive
activities shall be carried on upon any Condominium, or in any
part of the Property, nor shall anything be done thereon which
may be or may become a serious annoyance or a nuisance to or
which may in any way interfere with the quiet enjoyment of each
of the Owners of his respective Unit, or which shall in any way
increase the rate of insurance for the Project, or cause any
insurance policy to be cancelled or to cause a refusal to renew.
the same, or which will impair the structural integrity of any
building.
7.3 Vehicle Restrictions. Parking of golf carts,
recreational vehicles, campers, boats, travel trailers, similar
equipment, cars and all other vehicles will be permitted in
accordance with the rules and regulations as established from
time to time by the Board. No electric, water, or other hook-ups
will be permitted except as provided in the rules and regulations
adopted by the Board.
7.4 Signs. No business sign or advertising may be
displayed in the Project without the written permission of the
Board of Directors, but this provision does not prohibit or
restrict the display upon any Unit of a sign of customary and
reasonable dimensions advertising a Condominium for sale nor does
it prohibit or restrict any sign of Declarant used in connection
with Declarant's sales office maintained in accordance with the
provision of Section 8.16 of this Declaration or of any agreement
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between Declarant and the Association. The display of any
vehicle or any other article for sale will not be permitted.
7.5 Animals. No poultry or other animal except small
household pets may be kept in any Unit. Pets may not be raised,
bred, or kept for commercial purposes. Pets must be on a leash
at all times when taken outside of the Units.
7.5.1 Notwithstanding the foregoing, no pets may be
kept on the Property which are obnoxious or annoying to other
Owners. No pets shall be allowed in the Common Area or
Reciprocal Easements except as may be permitted by rules of the
Board.
7.5.2 After making a reasonable attempt to notify the
Owner, the Association or any Owner may cause any unleashed dog
found within the Common Area to be removed by the Association (or
any Owner) to a pound or animal shelter under the jurisdiction of
the County of San Diego by calling the appropriate authorities,
whereupon the Owner may, upon payment of all expenses connected
therewith, repossess the pet. Owners shall prevent their pet(s)
from soiling any portion of the Common Area or Reciprocal
Easement and shall promptly clean up any mess left by their
pet(s). Owners shall be fully responsible for any damage caused
by their pet(s).
7.6 Garbage and Refuse Disposal. All rubbish, trash and
garbage shall be regularly removed from the Unit, and shall not
be allowed to accumulate thereon. Trash, garbage and other waste
shall not be kept except in sanitary containers. All equipment
for the storage or disposal or such materials shall be kept in a
clean and sanitary condition. All equipment, garbage cans,
woodpiles, or storage piles shall be maintained in accordance
with the rules and regulations of the Association, as adopted
from time to time.
7.7 Radio and Television Antennas. Except if permitted by
applicable law, regulations or use permit, no exterior television
or radio antenna or tower or cable dish may be erected. No
overhead wiring (telephone or electric) or any other wire, rope
or cable shall be placed on the Property above the ground nor
shall any such wiring, rope or cable be placed below the ground
without prior written consent of the Architectural Control
Committee. A master antennae system or cable television system
may be constructed and maintained by the Association in the
Common Area if permitted by applicable law, regulations and use
permits.
7.8 Use of Recreational Facilities by Tenants. All
Reciprocal Easement recreational facilities are for the use of
Owners or their tenants and their respective guests; however,
Owners who do not reside within the Project and who have rented
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(D
or leased their Condominium(s) are not permitted to use the
recreational facilities. In such cases, said facilities are to
be used only by the occupying tenants. Tenants are subject to
all the rules and regulations and are responsible for any damage
to the Common Area. Owners are also responsible for their
tenants' violations of rules and damage to the Common Area.
7.9 Architectural Control. No building, fence, wall,
obstruction, outside or exterior wiring, balcony, screen, patio,
patio cover, tent, awning, carport, carport cover, improvement or
structure of any kind shall be commenced, installed, erected,
painted, repainted or maintained upon the Property or any Unit,
nor shall any alteration or improvement of any kind be made
thereto until the same has been approved in writing by the Board,
or by an Architectural Control Committee appointed by the Board.
7.9.1 Plans and specifications showing the nature,
kind, shape color, size, materials and location of such
improvements, alterations etc., shall be submitted to the
Architectural Control Committee for approval as to quality of
workmanship and design and harmony of external design with
existing structures, and as to location in relation to
surrounding structures, topography, and finish grade elevation.
7.9.2 No landscaping of patios or yards visible from
the street or from the Common Area (not involving the use of
natural plants, grass, trees, or shrubs, and which does involve
the use of synthetic materials, or of concrete, rock or similar
materials) shall be undertaken by any Owner until plans and
specifications showing the nature, kind, shape and location of
the materials have been submitted to and approved in writing by
the Board or by an Architectural Control Committee appointed by
the Board.
7.9.3 The Architectural Control Committee shall
consist of two (2) Members appointed by the Board. Members
appointed to the Architectural Control Committee by the Board
shall be from the membership of the Association. A majority of
the Architectural Control Committee may designate a
representative to act for it. In the event of death or
resignation of any member of the Committee, the successor shall
be appointed by the Board. Neither the members of the Committee
nor its designated representative shall be entitled to any
compensation for services performed pursuant hereto. In the
event the Committee fails to approve or disapprove plans and
specifications within twenty (20) days after the same have been
submitted to it, then the applicant shall submit a request to the
Board to act in lieu of the Committee. If the Board fails to act
within ten (10) days of such request, approval will not be
required and the requirements of this Declaration shall be deemed
to have been fully complied with.
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7.9.4 The Architectural Control Committee shall adopt
guidelines specifying the procedures to be followed for
submitting plans for which approval is required (including,
without limitation, fees) and standards to be applied in
reviewing such plans.
7.10 Power Equipment and Car Maintenance. The use of power
equipment, operation of hobby areas and/or performance of car
maintenance shall only be permitted on the Property in accordance
with the rules and regulations as adopted by the Board from time
to time.
7.11 Liability of Owners for Damage to Common Area. Each
Owner shall be liable to the Association for all damage to the
Common Area or Reciprocal Easements or improvements thereon
caused by such Owner or any occupant of his Unit or guest or by
such Owner's pet(s). Liability of an Owner shall be established
only after notice to the Owner and hearing before the Board. In
the event an Owner disagrees with the decision of the Board on
the question of liability, the Owner may petition a court of law
or submit the matter to arbitration under the rules of the
American Arbitration Association.
7.12 Drainage. The ground surfaces within any Unit or part
of a Unit in the Project shall not be regraded without the prior
consent of the Architectural Control Committee. The Owner will
be responsible for the drainage of his Unit. The Unit must not
drain onto any other Unit, or to any Common Area except the
street or except as presently existing. Units, patios and
carport areas must have down-drain gutters extended to the street
area to prevent erosion.
7.12.1 The Owner of a Unit shall permit free access by
Owners of adjacent Units to slopes or drainageways located on his
Unit which affect said adjacent Unit, when such access is
essential for the maintenance of permanent stabilization of said
slopes, or maintenance of the drainage facilities for the
protection and use of property other than the Unit on which the
slopes or drainageway is located.
7.12.2 The Owner of any Unit shall not, in any way,
interfere with the established drainage pattern over his Unit
from adjoining other Units and he will make adequate provision
for property drainage in the event it is necessary to change the
established drainage over his Unit. For the purpose herein,
"established" drainage is defined as the drainage in existence as
of the date of recordation of this Declaration.
7.13 Laundry Drying. All drying laundry must be hung in an
area designated for that purpose by the Board of Directors.
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7.14 Maintenance of Units. All Units, including
landscaping and improvements thereon, shall be maintained and
kept clean at all times in a manner so as to meet the approval of
the Board of Directors. In the event any Unit, including
landscaping or improvements thereon, is not maintained and kept
clean in such a manner, the Board of Directors shall have the
right, either itself or through any other Person, to furnish the
labor and/or materials necessary to bring said Unit, including
landscaping and/or improvements thereon, up to a standard which
meets the approval of the Board of Directors in its sole
discretion and to maintain them according to such a standard. In
such event, in addition to other penalties and disciplinary
measures imposed by the Board of Directors, the Board shall levy
a Special Assessment against such Owner in the amount equal to
all direct and indirect costs and expenses incurred by the Board
of Directors to furnish such labor and/or materials, or have the
same furnished; the amount that the Owner of any such Unit is
obligated to pay hereunder shall be payable within ten (10) days
after the charge is made. Any such charge which is not paid
within thirty (30) days of the due date shall be subject to late
charges and shall bear interest thereafter at the rate of twelve
percent (12%) per annum. This paragraph shall constitute a
request by each Owner, under the conditions stated herein, for
the Board of Directors to furnish any labor and/or materials
which are furnished hereunder. Any claim against the Board of
Directors shall not constitute a defense or offset in any action
of the Board of Directors for nonpayment of any amounts which may
be assessed hereunder.
7.15 Compliance with Law.
applicable laws and regulations
municipal authorities affecting
improvements therein, including
ordinances and any applicable u
from time to time.
Each Owner shall comply with all
of governmental agencies and
the use of his Unit, and other
but not limited to zoning
e permits as amended or replaced
ARTICLE 8
GENERAL PROVISIONS
8.1 Right of Entry for Emergency Repair. The Board shall
have authority to designate one or more qualified repairmen or
other Persons to enter upon and within any individual Unit, in
the presence of the Owner thereof, or otherwise, for the purpose
of making emergency repairs therein or for necessary maintenance
or repair to portions of the Common Area; or to abate any
nuisance being conducted or maintained in said Unit in order to
protect the property rights and best interests of the remaining
Owners.
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8.2 Continuing Liability for Assessments. No Owner may
exempt himself from liability for his specified contribution to
maintenance fund by waiver of the use or enjoyment of the Common
Area or by the abandonment of his Condominium.
8.3 No Racial Restrictions. No Owner shall execute or file
or record any instrument which imposes a restriction upon the
sale, lease or occupancy of his Unit on the basis of race, color,
creed, sex, or national origin.
8.4 Books and Records of the Association. The membership
register, books of account and minutes of meeting of Members of
the Board and of committees of the Board and of the Association
shall be made available for inspection and copying by any Member
of the Association or by his duly appointed representative, at
any reasonable time and for a purpose reasonably related to his
interest as a Member, at the office of the Association. The
Board shall establish reasonable rules with respect to: (a)
notice to be given to the custodian of the records by the Member
desiring to make the inspection; (b) the hours and days of the
week when such an inspection may be made; and (c) the payment of
the cost of reproducing copies of documents requested by a
Member. Every Director shall have the absolute right, at any
reasonable time, to inspect all books, records and documents of
the Association and the physical properties owned or controlled
by the Association. The right of inspection by a Director shall
include the right to make extracts and copies of documents.
8.5 Taxes. Each Owner shall, before delinquency, pay any
real and personal property taxes separately assessed against his
respective Condominium and all utility and other charges
separately metered or charged against his Condominium, and such
payment shall be made by each Owner in addition to and separately
from Assessments otherwise payable to the Association by each
such Owner.
8.6 Enforcement of Declaration and By-Laws. The Owners or
any one of them, or the Board acting on behalf of the Owners,
shall be entitled to bring legal action for damages against any
Owner who shall default in the performance of any of the
provisions of this Declaration, the By-Laws or rules and
regulations promulgated by the Board for the protection of the
Project; provided, however, that only the Board may bring legal
action to enforce Assessment liens. Further, said Persons shall
be entitled to enjoin any violation of said documents, rules and
regulations and shall further be entitled to prosecute any other
legal or equitable action that may be necessary to protect the
Project. If any Owner, Member of the Board or the Board shall
deem it necessary to initiate any legal or equitable action for
the protection of the Project against any Owner, and they shall
be the prevailing party in said action, then said Persons shall
be entitled to reasonable attorneys' fees and costs of said
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action from said Owner for expenses incurred in bringing or
initiating said action; any judgment rendered against any such
defaulting Owner shall include costs of said action, together
with reasonable attorneys' fees in an amount to be fixed by the
court. Notwithstanding the foregoing, the Association is not
empowered to cause a forfeiture or abridgment of any Owner's
right to the full use and enjoyment of his Unit on account of the
failure by the Owner to comply with provisions of the Condominium
Documents or the rules and regulations adopted by the Board
except by judgment of a court or a decision arising out of
arbitration or on account of a foreclosure or sale under a power
of sale for failure of the Owner to pay Assessments duly levied
by the Association.
8.7 Liberal Interpretation of Declaration. The provisions
of this Declaration shall be liberally construed to effectuate
its purpose of creating a uniform plan for the operation of the
Project for the mutual benefit of all Owners.
8.8 Severability of Provisions. The provisions herein
shall be deemed independent and severable and the invalidity of
partial invalidity or unenforceability of any of the provisions
hereof shall not affect the validity of the remaining provisions.
8.9 Cumulative Remedies. Each and all legal or equitable
remedies provided for herein shall be deemed to be cumulative,
whether so expressly provided for or not.
8.10 Successors and Assigns. This Declaration shall be
binding upon and shall inure to the benefit of all heirs,
personal representatives, successors and assigns of Declarant and
all heirs, personal representatives, grantees, lessees and
assignees of Owners.
8.11 Waiver or Breach of Declaration. No waiver or any
breach of any of the covenants or conditions of this Declaration
shall constitute a waiver of any succeeding or preceding breach
of the same, or any other covenant or condition herein contained.
8.12 Delivery of Notices and Documents. Any written notice
or other documents required by this Declaration may be delivered
personally or by mail, including by deposit into a Member's mail
box on the Unit site if such Unit site has been provided by the
Member as his address as required below. If by mail, such
notice, unless expressly provided for herein or in the By-Laws to
the contrary as to the type of notice being given, shall be
deemed to have .been delivered and received forty-eight (48) hours
after a copy thereof has been deposited in the Member's mail box
on the Unit site or in the United States mail, postage prepaid,
addressed as follows:
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8.12.1 If to an Owner, other than Declarant, to the
Member appearing on the books of the Association given by the
Member to the Association, for the purpose of giving notice and
delivering documents. Each Owner, other than Declarant, shall
file in writing with the Board promptly upon becoming an Owner,
his address for the purpose of giving notice and delivering
documents and shall promptly notify the Board in writing as to
any subsequent change of address.
8.12.2 If to Declarant, whether in their capacity as
an Owner or in any other capacity unless and until changed by
notice from Declarant to the Association as provided above:
Peter and Ellen Gray
do Olsen Construction Company
2665 Ariane Drive, #203
San Diego, CA 92117
8.12.3 Prior to the organizational meeting, notices to
the Board shall be addressed to the address set forth in 8.12.2
above. Thereafter, notices to the Board shall be addressed to
the Secretary and the Board shall cause the address of the
Secretary to be posted at all times in a conspicuous place within
the Common Area. In addition, from and after the organizational
meeting, notice of the address of the Secretary of the
Association shall be given by the Board to each Owner, within a
reasonable time after the Board has received actual notice of
such Owner's purchase of a Condominium.
8.13 Notification of Sale of Condominium. Concurrently
with the consummation of the sale of any Condominium under
circumstances whereby the transferee becomes an Owner thereof, or
within five (5) business days thereafter, the transferee shall
notify the Board, in writing, of such sale. Such notification
shall set forth: (a) the name of the transferee and his
transferor; (b) the street address or Unit number of the
Condominium purchased by the transferee; (c) the transferee's
mailing address; and (d) the date of sale. Prior to receipt of
such notification, any and all communications required or
permitted to be given by Declarant, the Board or the
Architectural Control Committee or any agent or representative
thereof, shall be deemed to be duly made and given to the
transferee, if duly and timely made and given to said
transferee's transferor.
8.14 Joint and Several Liability. In the case of joint
Ownership of a Condominium, the liability of each of the Owners
thereof in connection with the liabilities and obligations of
Owners set forth in or imposed by this Declaration shall be joint
and several.
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8.15 Encroachment Easements. Each Owner within the
Property is hereby declared to have an easement appurtenant to
his Condominium over all adjoining Condominiums and the Common
Area for the purpose of accommodating any encroachment due to
minor engineering errors, minor errors in original placement,
construction, reconstruction, repair, settlement, shifting, or
movement of the Unit or other improvements on the Units. There
shall be valid easements for the maintenance of said
encroachments as long as they shall exist, and the rights and
obligations of Owners shall not be altered in any way by said
encroachment, settlement or shifting; provided, however, that in
no event shall a valid easement for encroachment be created in
favor of an Owner or Owners if said encroachment occurred due to
the intentional conduct of said Owner or Owners. In the event a
structure is partially or totally destroyed, and then repaired or
rebuilt, the Owners of each Condominium agree that minor
encroachments over adjoining Condominiums or Common Area shall be
permitted and that there shall be valid easements for the
maintenance of said encroachments so long as they shall exist.
8.16 Limitation of Restrictions on Declarant. Declarant is
undertaking the work of construction of residential Condominiums
and incidental improvements on the Condominium property. It is
recognized that speedy and effective completion of that work and
the sale, rental and other disposal of said Condominiums will be
of benefit and is essential to the Declarant, the Association and
the Members and the Condominium community, all of whom have an
investment in the Project and its future. In order that said
work may be completed as rapidly as possible, nothing in this
Declaration shall be understood or construed to:
8.16.1 Prevent Declarant, its contractors, or
subcontractors from doing on the Property or any Unit whatever is
reasonably necessary or advisable in connection with the
completion of said work; or
8.16.2 Prevent Declarant or its representatives from
erecting, constructing, and maintaining on the Property (except
upon Units owned by others) such structures as may be reasonable
and necessary for the conduct of its business; or
8.16.3 Prevent Declarant from conducting on the
Property (except upon Units owned by others) its business of
completing said work and of establishing a plan of Condominium
ownership and of selling, managing, leasing and disposing of the
Property as Condominiums by sale, lease, or otherwise including
use of one or more Condominiums (including without limitation
existing offices used by Declarant) as an office or manager's
space before and after close of escrow on the first sale of a
Condominium, provided that Declarant pays to the Association the
same Assessments due for Condominiums owned by it as are due for
other Condominiums;
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8.16.4 Prevent Declarant from maintaining such sign or
signs on the Property (except upon Units owned by others) as may
be necessary for the sale, lease, or disposition thereof;
8.16.5 Require Declarant to obtain approval of the
Architectural Control Committee or Board for improvements,
alterations or repair.
8.16.6 The foregoing rights of Declarant shall
terminate upon sale of Declarant's entire interest in the
Project, or seven (7) years after the date of recordation of the
deed of the first Condominium to be sold in the Project,
whichever occurs first.
8.16.7 There are hereby reserved in favor of Declarant
and for the benefit of Declarant easements for Declarant to
perform and exercise each of the rights described in this Section
8.16 or elsewhere in this Declaration.
8.16.8 Declarant shall make reasonable efforts to
avoid disturbing the use and enjoyment of Condominiums owned by
others and the Common Area, while completing any work necessary
to said Condominiums or Common Area.
8.16.9 Anything in this Declaration, the By-Laws or
Articles to the contrary notwithstanding, Declarant, its
successors and assigns, shall be entitled and empowered to take
all actions and execute all documents permitted or required by
agreements between Declarant and the Association.
8.17 Determination of Costs and Expenses. Whenever the
Association is entitled to recover costs and expenses from a
Member, a determination of the amount thereof by the Association,
the Board of Directors or a committee or two (2) or more
officers, which is made in accordance with the Declaration or the
By-Laws, shall be conclusive and binding upon the Members.
ARTICLE 9
UTILITIES AND EASEMENTS
9.1 Owners' Rights and Duties. The rights and duties of
the Owners with respect to sanitary sewer, water, drainage,
electric, gas, television receiving, telephone equipment, cables
and lines, exhaust flues, and heating and air conditioning
facilities (hereinafter referred to, collectively, as "utilities
facilities") shall be as follows:
9.1.1 Whenever utilities facilities are installed
within the Property, which utilities facilities or any portion
thereof lie in or upon Units owned by other than the Owner of a
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Unit served by said utilities facilities, the Owners of any Unit
served by said utilities facilities shall have the right of
reasonable access for themselves or utility companies to repair,
replace and generally maintain said utilities facilities as and
when necessary, due to failure or inability of the Board to take
timely action to make such repairs or perform such maintenance.
9.1.2 Whenever utilities facilities are installed
within the Property, which utilities facilities serve more than
one (1) Unit, the Owner of each Unit served by said utilities
facilities shall be entitled to the full use and enjoyment of
such portions of said utilities facilities as service his Unit.
9.1.3 In the event of a dispute between Owners with
respect to the repair or rebuilding of said utilities facilities,
or with respect to the sharing of the cost thereof, then, upon
written request of one (1) of such Owners addressed to the
Association, the matter shall be submitted to arbitration
pursuant to the rules of the American Arbitration Association,
and the decision of the arbitrator(s) shall be final and
conclusive on the parties.
9.2 Easements for Utilities and Maintenance. Easements
over and under the Property for the installation, repair and
maintenance of electric, telephone, water, gas and sanitary sewer
lines and facilities, heating and air conditioning facilities,
cable or master television antenna lines, drainage facilities,
walkways, and landscaping, and as may be hereafter required or
needed to service the Property are hereby reserved in favor of
the Association for the benefit of Declarant and its successors
and assigns together with the right to grant and transfer the
same to public utility companies or other Persons. Said
easements shall be in favor of Declarant, and its successors and
assigns, for the benefit of the Project, and for the benefit of
the Association.
9.3 Association's Duties. The Association shall maintain
all utility installations located in the Common Area except for
those installations maintained by utility companies, public,
private or municipal. The Association shall pay all charges for
utilities supplied to the Project except those metered or charged
separately to the Units. Owners shall maintain the utility
installations located within their respective Units.
9.4 Underground. All utility distribution facilities shall
be placed underground if required by the Project's use permit or
applicable law or regulations.
9.5 Association Easements. There are hereby reserved in
favor of Association easements over and under the Project to
permit the Association to discharge its obligations under the
Condominium Documents.
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9.6 Declarant Easements. There are hereby reserved in
favor of or conveyed to Declarant easements over and under the
Project to permit Declarant to perform all actions necessary to
complete the Condominium construction and to sell or lease
Condominiums, including without limitation easements for
construction display, sales and exhibit purposes.
ARTICLE 10
DESTRUCTION OF IMPROVEMENTS
10.1 Reconstruction with Election of Owners. In the event
of total or partial destruction of the improvements in the Common
Area wherein the cost of reconstruction exceeds the insurance
proceeds available by One Hundred Thousand Dollars ($100,000.00)
or more, a special meeting shall be called for the purpose of
having the Association Members vote on whether or not to repair
the damage. Said meeting shall be called within forty-five (45)
days of said destruction. Unless at such meeting at least
sixty-six and two-thirds percent (66 2/3%) of all Owners vote not
to reconstruct, the reconstruction shall occur. If
reconstruction is to take place, the Board shall be required to
execute, acknowledge, file and record, not later than one hundred
twenty (120) days from the date of said destruction, a
certificate declaring the intention of the Owners to rebuild.
10.2 Reconstruction Assessments. If a majority of Owners
determine to rebuild or the cost of reconstruction does not
exceed the insurance proceeds available as set forth in Section
10.1 above, then each Owner shall be obligated to pay a
Reconstruction Assessment in the amount necessary to pay his
one-fourth (1/4th) share of the cost of reconstruction over and
above the insurance proceeds, and the share of each Owner shall
be levied upon the basis of each Owner's interest in the Common
Area. In the event of failure or refusal by any Owner to pay his
share, after notice to him, should failure or refusal continue
for a period of sixty (60) days, the Reconstruction Assessment
may be enforced under the lien provisions contained in this
Declaration.
10.3 Obligation of Board. If the Association is obligated
to rebuild such improvements on the Common Area as provided
above, the Board shall obtain bids from at least two (2)
reputable contractors and shall award construction work to the
lowest bidder. The Board shall have authority to enter into a
written contract with said contractor for such reconstruction
work and the insurance proceeds held by the Board shall be
disbursed to said contractor according to the terms of the
agreement. It shall be the obligation of the Board to take all
steps necessary to insure the commencement and completion of such
reconstruction at the earliest possible time.
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W. OP
10.4 Determination Not to Rebuild. If reconstruction is
not required as provided herein, then:
10.4.1 Distribution of Insurance Proceeds. Subject to
the rights of Mortgagees, any insurance proceeds available for
such rebuilding of improvements in the Common Area shall be
distributed among the Owners and their individual Mortgagees by
the Board according to the value of each Condominium in relation
to the value of all Condominiums, according to such Condominium
fair market value at the time of destruction as determined by
independent appraisal in accordance with procedures adopted by
the Board. If a majority of Owners elect to rebuild, the Board
shall then file and record a certificate as provided in Section
10.1 hereinabove.
10.4.2 Recordation of Certificate Not to Rebuild. The
Board shall have the duty within one hundred twenty (120) days of
the date of such loss to execute, acknowledge and record a
certificate setting forth the determination of the Owners not to
rebuild and shall promptly cause to be prepared and filed all
necessary documents as may be required by law.
10.5 Destruction of Unit Improvements. The repair and
restoration of any improvements within the Unit shall be
accomplished by the Owner of such Unit.
10.6 Condemnation. Any awards received on account of the
taking of Common Area shall be paid to the Association and shall
be retained in the general funds of the Association. In the
event of a taking of a Unit and any improvements therein, the
award shall be distributed to the Owners and their Mortgagees on
the allocation basis set forth in the judgment. In the event the
taking is by sale under threat of condemnation, or the
condemnation award is not apportioned among the Owners affected
by the condemnation by court judgment or by agreement between the
condemning authority and each of the affected Owners and their
respective Mortgagees, the Board shall distribute the award among
the affected Owners according to the relative decrease in value
of the Condominiums affected by the condemnation as determined by
an M.A.I. appraiser selected by the Board.
ARTICLE 11
SUSPENSION OF THE RIGHT OF PARTITION
The right of partition of the Common Area is hereby
suspended pursuant to Section 1359 of the Civil Code of
California. The Project may be partitioned and sold as a whole,
pursuant to the provisions of said section of the Civil Code as
presently enacted or subsequently amended upon a showing of the
occurrences of any one of the events therein provided. Nothing
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herein contained shall prevent the partition or division of
interest between joint or common Owners of one (1) Condominium.
ARTICLE 12
PROHIBITIONS AGAINST SEVERABILITY OF
COMPONENT INTEREST IN CONDOMINIUM
12.1 Prohibition of Severance. No Owner shall be entitled
to sever his Unit in any Condominium from his undivided interest
in the Common Area for any purpose. Neither of said component
interests may be severally sold, conveyed, encumbered,
hypothecated or otherwise dealt with.
12.2 Conveyance of Entire Condominium. The elements of a
Condominium and any easement rights appurtenant thereto are
inseparable and each Owner agrees that he shall not, while this
Declaration or any similar declaration is in effect, make any
conveyance of less than the entire Condominium and such
appurtenances. Any deed, mortgage or other conveyance that
purports to convey less than all of the interests in a
Condominium shall be deemed to transfer and convey the entire
Condominium, including the omitted interests even though such
omitted interests are not expressly mentioned in such conveyance
document. The provisions of this Section shall terminate on the
date that judicial partition shall be decreed.
ARTICLE 13
TERM OF DECLARATION - COMPLIANCE WITH RULE AGAINST
PERPETUITIES AND RESTRAINTS OF ALIENATION
The covenants contained herein shall run with the land and
shall be binding upon all parties and all Persons claiming under
them until July 1, 2008, after which time the covenants shall be
automatically extended for successive periods of twenty-one (21)
years, unless an instrument executed by not less than
seventy-five percent (75%) of Owners of the Condominiums shall be
recorded not less than one (1) year prior to the expiration of
the immediately preceding term, cancelling or terminating this
Declaration.
ARTICLE 14
PROTECTION OF LENDERS
14.1 Written Notification to Requesting Mortgagees,
Insurers or Guarantors. Any Requesting Mortgagee, Insurer or
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Guarantor, upon request, is entitled to written notification from
the Board of any default in the performance by a Condominium
mortgagor of any obligation under the Condominium Documents which
is not cured within sixty (60) days. A Requesting Mortgagee,
Insurer or Guarantor shall only be entitled to such notice if it
notifies the Association of its name and address and Condominium
encumbered by its Mortgage. Any Requesting Mortgagee, Insurer or
Guarantor, upon written request, shall also be entitled to
written notice of any destruction, taking or threatened taking of
any Condominium, Common Area, Association Property and any
improvements thereto or any portion thereof affecting the
Mortgage held, insured or guaranteed by such Requesting
Mortgagee, Insurer or Guarantor. As used in this Declaration,
"damaged" or "taking" shall mean damage to or taking of the
Common Area or Association Property exceeding Ten Thousand
Dollars ($10,000.00) or damage to or taking of a Unit exceeding
One Thousand Dollars ($1,000.00). If requested in writing by
such Requesting Mortgagee, Insurer or Guarantor, the Association
shall evidence its obligations under this subsection in a written
agreement in favor of such Mortgagee, Insurer or Guarantor. Any
Requesting Mortgagee, Insurer or Guarantor, upon written request,
shall also be entitled to written notice of any lapse,
cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association or of any action
requiring the consent of Eligible Mortgage Holders.
14.2 Exemption from Right of First Refusal. Any First
Mortgagee which comes into possession of the Unit pursuant to the
remedies provided in the Mortgage, foreclosure of the Mortgage,
or Deed (or assignment) in lieu of foreclosure, shall be exempt
from any right of first refusal, if such exists.
14.3 Subordination of Assessment Lien to Mortgages. Any
First Mortgagee which comes into possession of the Condominium
pursuant to the remedies provided in the Mortgage or foreclosure
of the Mortgage, shall take the Condominium free of any claim for
unpaid Assessments or charges against the mortgaged Condominium
which accrue prior to the time such Mortgagee comes into
possession of the Condominium (except for claims for a share of
such Assessments or charges resulting from a reallocation of such
Assessments or charges to all Condominiums, including the
mortgaged Condominium). The Assessment liens provided for herein
shall be subordinate to the lien of any First Mortgage now or
hereafter placed upon the Project; provided, however, that such
subordination shall apply only to the Assessments which have
become due and payable prior to a sale or transfer of such
property pursuant to a decree of foreclosure or trustee's sale.
Such sale or transfer shall not relieve such property from
liability for any Assessments thereafter becoming due, nor from
the lien of any such subsequent Assessment.
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14.4 Prior Approval of Eligible Mortgage Holders. Unless
seventy-five percent (75%) of Eligible Mortgage Holders and
seventy-five percent (75%) of the voting power of the Association
have given their prior written approval, the Association shall
not:
14.4.1 Amend a material provision of the Condominium
Documents. A material provision shall be defined as those
provisions governing the following subjects:
14.4.1.1 Voting rights;
14.4.1.2 Assessments, assessment liens, or
subordination of such liens;
14.4.1.3 Reserves for maintenance, repair and
replacement of the Common Area of Association Property;
14.4.1.4 Responsibility for maintenance and
repair of the Property;
14.4.1.5 Reallocation of interests in the Common
Area or rights to its use;
14.4.1.6 Boundaries of any Unit;
14.4.1.7 Convertability of Units into Common Area
or Association Property or of Common Area or Association Property
into Units;
14.4.1.8 Expansion or contraction of the Property
or the addition, annexation or withdrawal of property to or from
the Property;
14.4.1.9 Insurance or fidelity bonds;
14.4.1.10 Leasing of Units;
14.4.1.11 Imposition of any right of first
refusal or similar restriction on the right of an Owner to sell,
transfer or otherwise convey such Owner's Condominium; or
14.4.1.12 Any provision which by its terms is for
the express benefit of Mortgagees or insurers or guarantors.
An amendment or addition shall not be considered material
under this Section if it is for the purpose of correcting
technical errors or for clarification only. An Eligible Mortgage
Holder who receives a written request to approve conditions or
amendments which are not considered material who does not deliver
or post to the requesting party a negative response within thirty
(30) days shall be deemed to have approved such request.
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14.4.2 The Association shall not take any of the
following additional actions:
14.4.2.1 Effectuate any decision to assume self-
management of the Property when professional management had been
previously required by an Eligible Mortgage Holder;
14.4.2.2 Restoration or repair of the Property
(after hazard damage or partial condemnation) in a manner other
than that specified in the Condominium Documents;
14.4.2.3 Termination of the legal status of the
Property for any reason, including without limitation, the
substantial destruction or condemnation of the Property;
14.4.2.4 By any act or omission, abandon,
partition, sell, alienate, subdivide, release, transfer,
hypothecate or otherwise encumber the Common Area or Association
Property, provided, however, the granting of easements for public
utilities or other public purposes consistent with the intended
use of the Common Area or Association Property shall not require
such approval;
14.4.2.5 Partition or subdivide a Condominium, or
any elements thereof;
14.4.2.6 Change the pro rata interest or
obligations of any individual Condominium for purposes of (a)
levying Assessments or charges, allocating distributions of
insurance proceeds or condemnation awards or (b) determining the
pro rata share of ownership in the Common Area;
14.4.2.7 Use hazard insurance proceeds for losses
to any Common Area or Association Property and the improvements
thereto for other than repair, replacement or construction;
14.4.2.8 Fail to maintain fire and extended
coverage insurance on the Common Area and Association Property
and the improvements thereto in an amount less than one hundred
percent (100%) of the insurable value based on current
replacement cost; and
14.4.2.9 By act or omission change, waive or
abandon any scheme of regulation, or enforcement thereof,
pertaining to the architectural design or the exterior appearance
of Units, the exterior maintenance of the Association Property
including, without limitation, the party walls or common fences
and driveways, or the upkeep of lawns and plantings.
14.5 Examination of Books and Records. The Condominium
Documents, membership register, books and records of account,
financial statements, and minutes of meetings of the Members, the
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Board and any Committees of the Board, shall be made available
for inspection and copying by any prospective purchaser of a
Condominium, any Member or his duly-appointed representative, any
holder, insurer or guarantor of a First Mortgage secured by a
Condominium at any reasonable time during normal business hours
or under other reasonable circumstances and for a purpose
reasonably related to their interest as a prospective purchaser,
Member, holder, insurer or guarantor, at the principal office of
the Association or such other place within the Property as the
Board shall prescribe, all as provided in the California
Corporations Code, or any successor statute thereof.
14.6 Reserves for Replacement. An adequate reserve fund
for replacement of the Common Area facilities must be established
by the Association and must be funded by Regular Assessments paid
in regularly scheduled installments rather than by Special
Assessments.
14.7 Taxes, Assessments and Charges. All taxes,
Assessments and charges which may become liens prior to the First
Mortgage under the local law shall relate only to the individual
Condominiums and not to the Project as a whole.
14.8 No Priority Over
provision herein shall give
priority over any rights of
pursuant to their Mortgages
Owners of insurance proceed
or a taking of Units and/or
Rights of First
an Owner, or any
First Mortgagees
in the case of a
s or condemnation
the Common Area.
ortgagees. No
other Person,
of Condominiums,
distribution to
awards for losses to
14.9 Professional Management of Project. Except as
permitted in the Condominium Documents, any agreement for
professional management of the Project, and any other contract
providing for services by Declarant, developer, sponsor or
builder must provide for termination by either party, or payment
of a termination fee, without cause upon ninety (90) days' or
less written notice and for cause on not more than thirty (30)
days' written notice, and a maximum contract term of three (3)
years.
14.10 Notice to Lender. The Association shall give written
notice to all First Mortgagees of any loss to or taking of the
Common Area as provided above.
14.11 Conflict. If there is any conflict between any
provision of this Article and any other provision in this
Declaration or the By-Laws of the Association, the language
contained in this Article, "Protection of Lenders", shall
control.
14.12 Audited Statements. The Association must provide at
its expense an audited statement for the preceding fiscal year of
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the Association to any holder, insurer or guarantor of any First
Mortgage secured by a Condominium who has submitted a written
request therefor, or if such audited statement is not then
completed and available, within one hundred twenty (120) days
after the close of such fiscal year.
14.13 Insurance. The Association shall obtain and maintain
in effect insurance and fidelity bond coverage in the amounts and
with endorsements deemed adequate by the Board, as required by
the Condominium Documents, and such additional endorsements and
coverages meeting the requirements established by Federal Housing
Administration, Federal Home Loan Mortgage Corporation, Federal
National Mortgage Association, or the Veterans Administration for
condominium developments, when any such agency first becomes and
as long as it continues to be either a Mortgagee, Owner, or
insurer or guarantor of a Mortgage within the Property except to
the extent such coverage or endorsements are not available or
have been waived in writing by the applicable agency.
14.13.1 All insurance policies maintained by the
Association must provide that such policies may not be cancelled,
reduced or substantially modified without at least ten (10) days'
prior written notice to the Association and to each First
Mortgagee listed as a scheduled First Mortgagee in the policy.
All Fidelity bonds maintained by the Association must provide
that such fidelity bonds may not be cancelled or substantially
modified without at least ten (10) days' prior written notice to
the Association and each mortgagee servicing contractor acting on
behalf of any of the said agencies.
14.14 Priority of Mortgage Lien. No breach of the
covenants, conditions, or restrictions, nor the enforcement of
any lien provisions contained in this Declaration, shall affect,
impair, defeat or render invalid the lien or charge of any First
Mortgage made in good faith and for value encumbering any
Condominium, but all of said covenants, conditions and
restrictions shall be binding upon and effective against any
Owner whose title is derived through foreclosure or trustee's
sale, or otherwise, with respect to a Condominium.
14.15 Curing Defaults. A Mortgagee, or the immediate
transferee of such Mortgagee, who acquires title by judicial
foreclosure, deed in lieu of foreclosure or trustee's sale shall
not be obligated to cure any breach of the provisions of this
Declaration which is noncurable or of any type which is not
practical or feasible to cure. The determination of the Board
made in good faith as to whether a breach is noncurable or not
feasible to cure shall be final and binding on all Mortgagees.
14.16 Resale. It is intended that any loan to facilitate
resale of any Condominium after judicial foreclosure, deed in
lieu of foreclosure or trustee's sale is a loan made in good
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faith and for value and entitled to all of the rights and
protections afforded to other Mortgagees.
14.17 Payment of Taxes or Premiums. Mortgagees may,
jointly or singly, pay taxes or other charges which are in
default and which may or have become a charge against the Common
Area or Association Property unless such taxes or charges are
separately assessed against the Owners, in which case the rights
of Mortgagees shall be governed by the provisions of their
Mortgages. Mortgagees may, jointly or singly, also pay overdue
premiums on hazard insurance policies, or secure new hazard
insurance coverage on the lapse of a policy, for the Common Area
or Association Property. Mortgagees making payments pursuant to
this Section shall be owed immediate reimbursement therefor from
the Association. Entitlement to such reimbursement shall be
reflected in an agreement in favor of any Mortgagee which
requests the same to be executed by the Association.
ARTICLE 15
BREACH
15.1 Right of Entry. Violation of any of the provisions,
conditions, restrictions, covenants, easements or reservations
contained herein, shall give to Declarant or its successors, or
to the Association, the right to enter upon the Unit in which the
violation exists or the Unit of the Person committing a violation
affecting the Common Area and to abate and remove, at the expense
of the Owner committing the violation, or the Owner of the Unit,
as applicable, any erection, thing or condition that may be or
exists within the Unit or the Common Area contrary to the intent
and meaning of the provisions hereof. Such entry shall be made
only after three (3) days' notice to said Owner (except in the
case of emergency) and with as little inconvenience to the Owner
as possible, and any damage caused thereby shall be repaired by
the Person entering. The Person entering shall not thereby be
deemed guilty of any manner of trespass by such entry, abatement
or removal.
15.2 Nuisance. The result of every act or omission,
whereby any provision, condition, restriction, covenant, easement
or reservation herein contained is violated, in whole or in part,
is hereby declared to be and constitutes a nuisance, either
public or private, shall be applicable against every such result
and may be exercised by Declarant or its successors or the
Association. Such remedy shall be deemed cumulative and not
exclusive.
15.3 Right of Lien Holder. A breach of any of the
provisions, conditions, restrictions, covenants, easements or
reservations herein contained, shall not affect or impair the
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lien or charge of any bona fide first Mortgage, made in good
faith and for value, on any of the Condominiums, provided,
however, that any subsequent Owner of the Condominium shall be
bound by these provisions, conditions, restrictions, covenants,
easements and reservations whether such Owner's title was
acquired by foreclosure, trustee's sale or otherwise.
15.4 Enforcement. In the event of a breach of any of the
provisions, conditions, restrictions, easements, covenants or
reservations hereby established, the Board may enforce any and
all of the terms and conditions of this Declaration. It is
hereby declared that damages at law for such breach are
inadequate. The restrictions provided bind all Owners.
ARTICLE 16
AMENDMENT
16.1 Subsequent to First Close of Escrow. Subsequent to
the close of the first escrow for the conveyance of a
Condominium, each and all of the covenants, conditions and
restrictions contained herein may be modified, amended, augmented
or deleted in the following manner: by vote of seventy-five
percent (75%) of the voting power of the Association and
seventy-five percent (75%) of the votes of Members other than the
Declarant, and such prior approval of Eligible Mortgage Holders
as is required by Section 14.4 subject only to the qualification
that the percentage of voting power necessary to amend a specific
clause or provision shall not be less than the prescribed
percentage of affirmative votes required for action to be taken
under such clause or provision. Said amended Declaration or
amendment to Declaration shall not be effective for any purpose
unless and until recorded in the Office of the County Recorder,
together with a certificate executed by two (2) officers of the
Association certifying compliance with all applicable
requirements, but shall thereafter be conclusive and presumed to
be valid as to anyone relying thereon in good faith.
16.2 Prior to First Close of Escrow. Prior to the close of
the first escrow for the conveyance of a Condominium, Declarant
shall have the right to amend this Declaration, by executing and
recording with the written consent of the holders of all
Mortgages then on record, the desired amendment thereto, after
receiving prior written approval of any state administrative
agency then having regulatory jurisdiction over said Project and
the recording of said amendment together with a Certificateof
Declarant certifying compliance with applicable requirements,
shall be presumed to be valid as to anyone relying thereon in
good faith.
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ARTICLE 17
ASSIGNMENT OF DECLARANT'S AND ASSOCIATION'S RIGHTS
Some or all of Declarant's and Association's rights and
obligations under the Condominium Documents may be assigned by
Declarant or Association, as applicable, by an express exclusive
or non-exclusive assignment incorporated in a recorded instrument
including without limitation a deed, deed of trust, mortgage,
assignment or lease. Such an assignment incorporated in a
mortgage or deed of trust will automatically pass to a Person
acquiring title at a trustee's sale, upon foreclosure, or upon
receipt of a deed in lieu of foreclosure with respect to such
mortgage or deed of trust.
To the extent that the easements and other rights reserved
for Declarant herein have not been conveyed to Declarant prior to
conveyance of such rights to the Association, Association shall
convey such rights to Declarant, its affiliates, successors or
assigns in the manner provided in the preceding paragraph.
ARTICLE 18
BINDING EFFECT OF COVENANTS, CONDITIONS AND RESTRICTIONS
Each Owner and any successor in interest to said Owner,
takes his right, title, interest and estate subject to all
covenants, conditions and restrictions set forth herein, and
agrees to perform and to be bound thereby. The covenants,
conditions, and restrictions imposed hereby constitute a general
scheme for the benefit of each Owner in the Project and are or
will be imposed upon the first Owner of any Condominium. Said
covenants, conditions and restrictions shall be a burden on and a
benefit to not only each of the original purchasers of
Condominiums, but also their grantees and all subsequent Owners.
All covenants, conditions and restrictions herein are intended to
and shall constitute covenants running with the land or equitable
servitudes on the land, as the case may be, and are intended to
and shall be binding on any future Owners of any Condominium(s).
ARTICLE 19
INVALIDITY OF ANY PROVISION
If any condition or restriction contained herein be invalid
or held invalid or void by any court of competent jurisdiction,
such invalidity or nullity shall in no way affect any other
condition or restriction contained herein.
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ARTICLE 20
WAIVER
A waiver of breach of any of the foregoing conditions or
restrictions shall not be construed as a waiver of any succeeding
breach or violation thereof, or of any other condition or
restriction.
ARTICLE 21
PARTIES SUBJECT TO PROVISIONS
This Declaration shall be for the benefit of and be binding
on the heirs, legatees, executors, devisees, administrators,
guardians, conservators, successors, purchasers, lessees,
sublessees, encumbrancers, donees, grantees, mortgagees, lienors
and assigns of and from the parties hereto. An Owner who leases
his Condominium shall be absolutely liable and responsible for
the acts of his lessee, including but not limited to: (a) damage
or destruction to any portion of the Common Area; (b) violation
or threatened violation of the provisions of this Declaration,
the By-Laws or of the rules and regulations of the Association.
ARTICLE 22
ENFORCEMENT OF CERTAIN BONDED OBLIGATIONS
22.1 Consideration by Board of Directors. In the event
that (a) any ref urbishments of the improvements located on the
Project are not completed prior to the sale of the first
condominium in the Project; and (b) the Association is obligee
under a bond or other arrangement ("Bond") to secure performance
of the commitment to complete the improvements, the Board shall
consider and vote on the question of action by the Association to
enforce the obligations under the Bond, with respect to any such
improvement for which a Notice of Completion has not been filed
within sixty (60) days after the completion date specified for
that improvement in the Planned Construction Statement appended
to the bond. If the Association has given an extension in
writing for the completion of any Common Area improvement on the
Project, the Board shall be directed to consider and vote on the
aforesaid question if a notice of completion has not been filed
within thirty (30) days after the expiration of the extension.
22.2 Consideration by the Members.
22.2.1 A special meeting of Members, for the purpose
of voting to override a decision by the Board not to initiate
action to enforce the obligations under the Bond or on the
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failure of the Board to consider and vote on the question shall
be held no fewer than thirty-five (35) days nor more than
forty-five (45) days after receipt by the Board of a petition for
such a meeting signed by members representing five percent (5%)
of the total voting power of the Association. A vote by Members
of the Association other than Declarant shall be taken at such
special meeting.
22.2.2 A vote by a majority of the voting power of the
Association other than the Declarant to take action to enforce
the obligations under the Bond shall be deemed to be the decision
of the Association, and the Board shall thereafter implement this
decision by initiating and pursuing appropriate action in the
name of this Association.
ARTICLE 23
RESTRICTION ON IMPOSITION OF MONETARY
PENALTIES BY THE ASSOCIATION
23.1 Assessments which May Not Become a Lien. Any monetary
penalty imposed by the Association as a disciplinary measure for
failure of a Member to comply with the governing instruments or
as a means of reimbursing the Association for costs incurred by
the Association in the repair of damage to Common Area and
facilities for which the Member was allegedly responsible or in
bringing the Member and his Condominium into compliance with the
Condominium Documents and rules and regulations of the
Association may not be characterized nor treated in such
instruments as an Assessment which may become a lien against the
Member's Condominium enforceable by a sale of the interest in
accordance with the provisions of Sections 2924, 2924(b) and
2924(c) of the Civil Code.
23.2 Assessments which May Become a Lien. The provisions
of Section 23.1 above do not apply to charges imposed against an
Owner consisting of reasonable late payment penalties for
delinquent Assessments and/or charges to reimburse the
Association for the loss of interest and for costs reasonably
incurred (including attorneys' fees) in its efforts to collect
delinquent Assessments.
ARTICLE 24
MISCELLANEOUS
24.1 Headings. The subject headings of the sections and
subsections of this Declaration are included for purposes of
convenience only and shall not affect the construction or
interpretation of any of its provisions.
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24.2 Applicability of Corporations Code. Whenever
reference is made in this Declaration to the California
Corporations Code the respective sections cited are meant to
apply as stated in the reference as if the Association were a
non-profit mutual benefit corporation.
IN WITNESS WHEREOF, the undersigned Declarant has executed
this Declaration the day and year first hereinabove written.
Declarants:
PETER GRAY
ELLEN GRAY
STATE OF CALIFORNIA)
) ss.
COUNTY OF SAN DIEGO)
On , 19_, before me, the undersigned,
Notary Public in and for said County and State, personally
appeared PETER GRAY, personally known to me (or proved to
me on the basis of satisfactory evidence) to -be the person whose
name is subscribed to the within instrument and acknowledged that
she executed the same.
$
WITNESS my hand and official seal.
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STATE OF CALIFORNIA)
ss.
COUNTY OF SAN DIEGO)
On , 19, before me, the undersigned, a
Notary Public in and for said County and State, personally
appeared ELLEN GRAY, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged that
she executed the same.
WITNESS my hand and official seal.
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