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HomeMy WebLinkAboutCP 99-14; Stine Condominium Conversion; Condo Permit (CP) (6)REQUESTED ft \tpMAH TO: DO" ft 2000-0691451 DEC 19, 2OOO 3:50 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SHITH, COUNTY RECORDER FEES: 79.00 DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS LOT 135 OF LA COSTA SOUTH UNIT NO. 1 THIS DECLARATION made on the date hereinafter set forth by the undersigned, hereinafter referred to as "Declarant". WITNESSETH: WHEREAS, Declarant is the owner of certain property in the City of Carlsbad, County of San Diego, State of California, which is more particularly described in Exhibit "A", attached hereto and made a part hereof, hereinafter called the "Condominium Property"; and WHEREAS, Declarant has filed, or will hereafter file, a Condominium Plan with the Office of the County Recorder of San Diego County, California, covering the Condominium Property described in Exhibit "A"; and WHEREAS, Declarant has improved, or intends to improve, the Condominium Property by constructing thereon two condominium units, and intends to establish a condominium_project, under the provisions of the California Condominium Act, providing for separate title to Units (as hereinafter defined), appurtenant to which will be an undivided fractional interest in all of the Condominium Property other than the units. NOW, THEREFORE, Declarant hereby declares that all of the Condominium Property described above shall be held, built, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with, the real property, and be binding an all parties having any right, title or interest in the described properties or any part thereof, their heirs, successors, and assigns, and shall inure to the benefit of each Owner thereof. -I- ARTICLE I DEFINITIONS Section 1.01. "Association" shall mean and refer to a nonprofit unincorporated association, its successors and assigns, the membership of which shall be the Owners of Units, and which association shall be the management body for the project. Section 1.02. "Owner" shall mean and refer to the grantee and/or Record Owner, whether one or more persons or entities, of a fee simple title to any Unit which is a part of the Condominium Property, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation. Section 1.03. "Condominium Property' shall mean and refer to that certain real property hereinabove described. Section 1.04. "Project" means the entire parcel of real property divided or to be divided-into condominiums, including all structures thereon., Section .1.05. Common Area" shall mean and refer to those portions of the Condominium Property not located within a Unit. Section 1.06. 'Unit' shall mean and refer to those portions of the Condominium Property shown and described as such on the Condominium Plan; provided, however, that the boundaries of each Unit are the exterior surfaces of the perimeter walls, roof, ground floors and foundations rather than any metes and bounds description expressed in any deed or plan, regardless of settling or lateral movement of the building, and regardless of any minor variance between boundaries shown in any deed or plan and those of the exterior of the building. Section 1.07. 'Condominium Plan shall mean and refer to the Condominium Plan recorded pursuant to California Civil Code Section 1351(f) covering the Condominium Property, including such amendments thereto as may from time to time be recorded. Section 1.08. "Condominium' shall mean and refer to a fee simple estate in the Condominium Property, as defined in Section 783 of the California Civil Code, and shall consist of a separate interest in a Unit and an undivided fractional interest as tenant-in-common in the Common Area. Section 1.09. Restricted Use Area' shall mean and refer to those portions of the Common Area to which an exclusive right to use is granted to an Owner as shown and described on the Condominium Plan as Exclusive Use Area and indicated as EU. Section 1.10. "Declarant" shall mean and refer to Margaret Jone Stine and son Robert Allen Stine; both are trustees and or separating such ownership from any of the other ownerships in the Condominium Property provided, however, if any Unit shall be owned by two or more co-tenants, as tenants-in-common, or as joint tenants, or as community property, nothing herein contained shall be deemed to prevent a judicial partition of said Unit as between such co-tenants. ARTICLE IV MEMBERSHIP AND VOTING POWERS Section 4.01. Every Owner of a Unit which is subject to assessment shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Unit which is subject to assessment. Section 4.01.1. A Member may attend and vote in person, or by an agent duly appointed by an instrument in writing signed by the Member and filed with the Secretary of the Association. Any such designation of any agent may be revoked at any time by written notice to the Secretary of the Association, and at any time when the Secretary receives actual notice of the death of a Member, or notice of a judicial declaration of incompetence. Section 4.02. When there is more than one record owner, any and all such persons may attend any meetings of the Association (or Owners) but, it shall be necessary for those Co-owners present to vote and they cannot agree, if there are two, each shall have a half vote or, if more than two, then the majority shall determine who shall cast the votes to which they are entitled= if only one Co-owner is present in person or by proxy, that Co-owner may vote all the shares (or interest) jointly owned. Any designation of an agent by Co-owners must be signed by both, if two, or by a majority if three or more. Section 4.03. Every Member shall have the right to vote, as herein set forth, on becoming a Member of the Association. ARTICLE V MANAGEMENT Section 5.01. The Owners of the Condominium Project hereby associate themselves as a nonprofit unincorporated association for the purposes of being the "management body" of the Condominium Project under the laws of the State of California. -4- Section 5.01.1. The affairs of this Association shall be managed by a Hoard of Directors, consisting of three (3) persons, who need not be Members of the Association. Section 5.01.2. • At the first meeting of the Association, the Members shall elect three Directors to serve until their removal, death or resignation. Section 5.01.3. A Director shall not receive any com- pensation for any service he may render to the Association; pro- vided, however, that any Director may be reimbursed for actual out-of-pocket expenses incurred by him in the performance of his duties. Section 5.01.4. The Board shall have the powers and duties, and shall be subject to the limitations on any such powers as enumerated in this Declaration, including the following powers which shall not be by way of limitation. Section 5.01.4.1. File and publish a certificate of fictitious name. Section 5.01.4.2. Sue and be sued in the name of the Association. Section 5.01.4.3. Deposit the funds of the Association to the credit of the Association in such banks or other depositories as the Board may elect. Section 5.01.4.4. Authorize, by resolution, the execution and delivery of any instrument in the name of and on behalf of the Association, any contracts, checks, drafts, notes or orders for the payment of monies. Section 5.01.4.5. Cause to be maintained a full set of books and records showing the financial condition of the Association, and shall provide an annual audit thereof within ninety (90) days after the close of the fiscal year for any year in which the annual income of the Association shall exceed $75,000, and shall regularly prepare and distribute financial statements in accordance with the following: (a) A proforma operating statement for each fiscal year shall be distributed not less than sixty (60) days before the beginning of the fiscal year. (b) 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 Unit in the Condominium Project, and an operating statement for the period from the date of the first closing to said accounting date, shall be distributed within sixty (60) days after the accounting date. This operating statement shall include a schedule of -5- assessments received and receivable, identified by the number of the Unit, and the name of the Owner assessed. (c) A balance sheet as of the last day of the Association's fiscal year and an operating statement for said fiscal year shall be distributed within ninety (90) days after the close of the fiscal year. Section 5.02. Election Section 5.02.1. Each Owner shall elect one Director, and the two Directors so elected shall elect a third who shall not be an owner and* shall have no interest in the Condominium Project. Section 5.02.2. Voting for Directors shall be by secret written ballot and may be conducted in person or by proxy.- Section 5.02.3. In the event that at any time the two Directors elected by the Members cannot agree as to the third Director, a third Director shall be appointed by the Presiding Judge of the North County Division of the San Diego Superior Court upon the petition of any Owner under the procedures for appointment of a neutral arbitrator pursuant to California Code of Civil Procedure, Section 1281.6. Said Director shall serve until the next annual meeting of the Members. Section 5.03. Removal Section 5.03.1. The Director elected by an Owner may be removed from office at any time by the Owner so electing him at any meeting called for that purpose. The close of Bale or either Unit shall be deemed to automatically remove the Director elected by that Unit Owner. Section 5.03.2. The third Director elected by the two Directors may be removed by the vote of both Owners. Section 5.04. In the event of a vacancy on the Board caused by the death, resignation, or removal of a Director, the Owner of the unit so electing the Director shall elect a successor and, in the event of such a vacancy of the office of the third Director, the remaining Directors shall elect a successor. Section 5.05. Meetings of Directors Section 5.05.1. Regular meetings of the Board of Directors shall be held quarterly at such place within the Project, and at such time as may be fixed from time to time by resolution of the Board. Notice of the time and place of such meeting shall be posted at a prominent place or places within the Common Area. The first meeting shall be held within forty-five (45) days after the sale of the first Unit. -6- Section 5.05.2. Special meetings of the Board of Directors shall be held when called by written notice signed by any Director. The notice shall specify the time and place of the meeting, and the nature of any special business to be considered. Notice of any special meeting must be given to each Director not less than three (3) days, nor more than ten (10) days, prior to the date fixed for such meeting by written notice delivered personally or sent by mail or telegram to each Director at his address as shown in the records of the Association. A copy of such notice shall be posted in a prominent place or places in the Common Area of the Project within three (3) days prior to said meeting. Sedtion 5.06. A majority of the Board shall constitute a quorum and, if a quorum is present, the decision of a majority of the Members present shall be the act of the Board. Section 5.07. Regular and special meetings of the Board shall be open to all Members of the Association provided, however, that Association Members who are not on the Board may not participate in any deliberation or discussion unless expressly so authorized by the vote of a majority or a quorum of the Board. ARTICLE VI COVENANT FOR MAINTENANCE FUND; ASSESSMENTS A. Creation of the Lien and Personal Obligation of Assessments. Section 6.01. The Declarant, for each Unit owned within the properties, hereby covenants, and each Owner of any Unit, by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (I) annual assessment or charges, and (2) special assessments for capital improvements to the overall Condominium Project Units to the extent such improvement is needed for the Condominium Project as a whole, the Common Area, and the exterior of the Units; such assessment to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge on the Unit, and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with interest, costs, and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall continue even though there is a transfer to a bona fide and for value successor in title. Any bona fide and for value successor shall also expressly assume joint and several responsibility for any delinquent installments, and the liability as between them shall not be the concern of the Association. -7- B. Purpose of Assessments. Section 6.02. The assessment levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the, residents in the properties, and for the improvement and maintenance of the Common Area, and of the Units situated upon the properties. C. Maximum Annual Assessment. Section 6.03. Until January 1 of the year immediately following the conveyance of the first Unit to an Owner, the maximum annual assessment shall be $- - 0 - per Unit. Section 6.03.1. From and after January 1 of the year immediately following the conveyance of the first Unit to an owner, the maximum annual assessment may not be increased each year more than ten percent (10%) above the maximum assessment for the previous year, and no 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, may be made without the vote or the written assent of a majority of all Members. Section 6.03.2. The Board of Directors may fix the annual assessment at an amount not in excess of the maximum. D. Special Assessment for Capital Improvements. Section 6.04. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair, or replacement of a capital improvement in or to the overall condominium project as 'a whole, common walls, and upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment which exceeds five percent (5%) of the annual budgeted expense of the Association shall have the vote or written assent of fifty-one percent (51%) of all Members. Section 6.04.1. Every special assessment shall be levied on the same basis as that prescribed for regular assessments. These provisions regarding special assessments do not apply in the case where the special assessment is a remedy used by the Board of Directors to reimburse the Association for costs incurred in enforcing compliance with the governing instruments. Section 6.04.2. Special assessments shall be paid as set forth in the notice of assessment. Section 6.04.3. A special assessment may be made as provided in Section 10.03 below. Notice and Quorum for any Action Authorized Under Sections 6.03, 6.04. Section 6.05. Any action authorized under Section 6.03 or 6.04 shall be taken at a meeting called for that purpose, written notice of which shall be sent to all Members not less than thirty (30 nor more than sixty (60) days in advance of the meeting. Notice of special assessment shall be sent not less than ten (10) nor more than twenty (20) days in advance of the meeting. If the proposed action is favored by a majority of the votes cast at such meeting, but such vote is less than the requisite fifty-one percent (51%) of all Members (considering the number of votes each such Member has), Members who are not present in person or by proxy may give their assent in writing, provided the same is obtained by the appropriate officers of the Association not later than thirty (30) days from the date of such meeting. 8. Uniform Rate of Assessment. Section 6.06. Both annual and special assessments must be fixed at an annual rate for both Units, based on the square footage of the Unit and the Restricted Use Area appurtenant thereto, and may be collected on a monthly basis; provided, however, should any Owner conduct any activity or construct or maintain any improvement in his Unit or in his Exclusive Use Area which shall result in any increase in insurance premiums for the project, such additional cost shall be assessed exclusively to such Owner. The Declarant and his successor in interest, if any, is an Owner subject to payment of the above for the interests he owns. F. Date of Commencement of Annual Assessments. Section 6.07. Due Dates. The annual assessments provided for herein shall commence on the first day of the month following the close of escrow of the first sale of a condominium. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors shall fix the amount of the annual assessment against each Unit at least sixty (60) days in advance of each annual assessment period unless, in the first year, less than sixty (60) days remain; then, in such event, the time shall be a reasonable time. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due dates and dates of each monthly installment payment shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Unit have been paid. G. Effect of Nonpayment of Assessments. Section 6.08. Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of ten percent (10%) per -9- annum. The Association may bring an action at law against the owner personally obligated to pay the same and/or foreclose the lien against the property. No Owner may waive or otherwise escape liability for the assessments provided for herein by nonuse of the Common Area or abandonment or sale of his Unit. Section 6.08.1. At any time after any assessments levied by the Association, affecting any Condominium, have become delinquent, the Board of Directors may file for recording in the Office of the Ban Diego County Recorder a notice of delinquency as to such Condominium, which notice shall state all amounts which have become delinquent with respect to such Condominium, and the costs (irfcluding attorney's fees) and interest which have accrued thereon, the amount of any assessments relating to such Condominium which are due and payable although not delinquent, and the name of the record or reputed record owner of such Condominium. Such notice shall be signed by a majority of the members of the Board of Directors, or by the Association's attorney. In the event the delinquent assessments and all other assessments which have become due and payable with respect to the same Condominium, together with all costs (including attorney's fees), penalties and interest which have accrued on such amount, are fully paid or otherwise satisfied prior to the completion of any sale held to foreclose the lien provided for in this Article, the Hoard of Directors shall record a further notice, similarly signed, stating the satisfaction and releasing of such lien. Immediately upon recording of any notice of delinquency pursuant to the foregoing provisions of this Section, the amounts delinquent, as set forth in such notice, together with the costs, including attorney's fees, penalties, and interest accruing thereon, shall be and become a lien upon the Condominium following such recording, and all costs, including attorney's fees, penalties and interest accruing thereon. Section 6.08.2. Each assessment lien of the Association may be foreclosed as, and in the same manner, the foreclosure of a mortgage upon real property under the laws of the State of California, or may be enforced by sale pursuant to Section 2924 of the California Civil Code and, to that end, a power of sale is hereby conferred upon the Association. H. Subordination of the Lien to Mortgages. Section 6.09. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage made in good faith and for value. Sales or transfer of any Unit shall not affect the assessment lien. However, the sale or transfer of any Unit pursuant to mortgage foreclosure which has priority over the assessment lien shall extinguish the lien of such assessments as to payments which become due prior to such sale or transfer. No sale or transfer shall relieve such unit from liability for, any assessments thereafter becoming due or from the lien thereof, and any purchaser at a foreclosure sale, after its date, shall become liable for the assessments upon said Unit. -10- I. Exempt Property. Section 6.10. All properties dedicated to, and accepted by, a local public authority,, and all properties owned by a charitable or nonprofit organization exempt from taxation by the laws of the State of California, shall be exempt from the assessments created herein. However, no condominium Units shall be exempt from said assessments. J. Nonwaiver Section 6.11. No Owner may waive or escape liability for the assessments above by nonuse of the Common Area, his Unit, or abandonment of his Unit. H. Amendment. Section 6.12. No amendment of this Article shall affect the rights of a holder of any mortgage, recorded prior to the recordation, who does not join in such amendment. ARTICLE VII ARCHITECTURAL CONTROL A. Architectural Control Committee. Section 7.01. The Board of Directors of the Association shall serve as the Architectural Committee. B. Alteration Limitations. Section 7.02. No owner shall make any alteration, modifications or changes in the exterior of any building, fence, wall, common wall, or other structure erected and placed in or upon any Unit or upon the Common Area, nor make any alteration, modification or change as to any tree, shrub, plant or other landscaping upon any unit or upon the Common Area, unless and until such change shall have been approved, in writing, by the then owners of both of the Units in the subdivision, as to quality of workmanship and materials, harmony of exterior design with existing structures, and as to location with respect to topography and finish grade elevations. Section 7.03. The changing of the interior design, materials or color within any building or structure, except a common wall or garage, in such a manner that such change is not visible from outside of such building, shall not constitute "alteration1 within the meaning of Paragraph 7.02. Section 7.04. Decisions of the Committee under this Article shall be solely advisory in nature, and not binding except upon the written assent of both of the Owners. The Committee's approval or disapproval shall be in writing. In the event the -11- Committee fails to recommend approval or recommend disapproval within thirty (30) days after plans, specifications, and plats have been submitted to it, such failure will constitute neither a recommended approval nor a recommended disapproval. ARTICLE VIII USES Section 8.01. No outdoor television or radio antenna shall be erected, altered, placed or permitted on any of the Units or on the Common Area, without the prior approval or consent thereto of the Hoafrd of Directors. Section 8.02. The Common Area shall not be obstructed and shall not be used except for the purposes of installing, erecting, constructing, and maintaining thereof (1) swimming pool(e) and other recreational facilities, (ii) grass, flowers, shrubs, trees and other landscaping appurtenances, (iii) utilities' transmission facilities, provided the same (except for transformer boxes and similar equipment not erected on poles, derricks, or similar supports) are installed underground, (iv) the construction, installation, and the maintenance thereof of utility and trash storage area(s), structures arid fencing, and (v) lighting, sewers, drainage, irrigation, television cables, and gates. Section 8.03. None of the Units shall be used except for residential purposes= no building shall be erected, altered, placed or permitted to remain on any of the Units other than one single-family dwelling and a private garage for automobiles. No unit shall be rented for a period of less than twenty six (26) consecutive days. Section 8.04. As to each Unit and Common Area: Section 8.04.1. No improvement shall be erected, altered, placed or permitted to remain in violation of any applicable ordinance. Section 8.04.3. No structure of a temporary character, basement, shack, garage, or other outbuilding, shall be used for residential purposes, either temporarily or permanently. Section 8.04.3. No truck trailer, boat or camper shall be permitted to remain unless the same be within a garage. Section 8.04.4. No Owner shall park any automobile, other vehicle, or motor vehicle, except in the garages or designated parking spaces, and said Owner shall be responsible for the cleaning of any oil or similar streaks caused by leaking vehicles. All garage doors shall be kept closed except when entering and leaving. -12- Section 8.04.5. Temporary parking shall be permitted only for loading and unloading. Section 8.04.6. No animals or birds of any kind shall be raised, bred, or kept, excepting household pate. No owner shall keep in or upon any Unit, any household pet or pets which shall constitute, either by reason or its nature, size, or number, a nuisance to the other Unit owners. Further, the Hoard of Directors of the Association shall have the right to promulgate, from time to time, rules regulating household pate, including, without restriction, rules relating to the number of pets, specie of pets, size of pets, and control of pets. Section 8.04.7. No noxious or offensive activities shall be carried on nor shall anything be done which may be or may become an annoyance or nuisance; normal and usual construction activities associated with the installation or repair of any improvement permitted by this Declaration shall not constitute noxious or offensive activity or any annoyance or nuisance within the meaning of this paragraph. Section 8.04.8. No oil drilling development operations, oil refining, quarrying, or mine operations of any kind shall be permitted, nor shall oil wells, tanks, tunnels, or mineral excavations or shafts be permitted. No derrick or other structure designed for use in boring oil or natural gas shall be erected, maintained, or permitted. Section 8.05. Nothing shall be done or kept in the Common Area or in a Unit which will increase the rate of insurance in the Common Area or in other Units without prior written consent of the Board of Directors. Section 8.06. No signs shall be displayed in the Common Area except to advertise the Unit for sale or lease, and then such signs shall be in the form and format as designated by the Board of Directors from time to time, and at a place or places designated by the Board of Directors. Section 8.07. None of the rights and obligations of the Owners shall be altered by encroachments due to settling or shifting of structures or any other cause. There shall be valid easements for such encroachments and for the maintenance of such encroachments as long as they exist, but there shall be no valid easement for encroachments caused by any willful act or conduct of Owner. Section 8.08. Except as provided herein, the Common Area shall be used for open space and recreational facilities for the use and benefit of the Members of the Association and their guests. Section 8.09. Each Owner shall be legally liable to the Association for all damages to the Common Area or to any Improvement thereof or thereto, including but not limited to the buildings, -13- recreation facilities, and landscaping caused by such owner or any occupant of such Owners Unit. Section 8.10. Each Owner shall have the right, at his sole cost and expense, to maintain, repair, paint, paper, panel, plaster, tile and finish the interior surfaces of the ceilings, floors, window frames, door frames, trim and perimeter walls of his Unit and the surfaces of the bearing walls and partitions located within the Unit. Said Owners shall have the right to substitute new finished surfaces in place of those existing on said ceiling, floors, walls, and doors of said Unit. Each Owner shall have the obligation to keep in good repair all items mentioned in this Section. No Owner shall paint, altfsr or modify in any way the exterior of his Unit without the prior written consent of the Board of directors. Section 8.11. Each Restricted Use Area shall be (1) appurtenant to the Condominium, the Unit of which bears the same number as the Restricted Use Area as set forth on the Condominium Plan, and (ii) used only for the purposes set forth in the Declaration. The right to so use an Restricted Use Area shall be exercisable only by the Owner(s) of the Unit appurtenant thereto and/or said Owner's tenants. Conveyance of a Unit shall effect conveyance of Restricted Use Areas appurtenant thereto, and transfer of all rights thereto to the vested Owner of the Unit. No Restricted Use Area or any rights thereto shall be transferred or conveyed apart from conveyance of the Condominium to which it is appurtenant. Each Restricted Use Area shall be deemed to be common Area for all those purposes set forth in this Declaration which are not inconsistent with this Article or the next Article. Section 8.12. Each Owner shall have the following rights with regard to the Restricted Use Area which he has the exclusive right to uses (a) To place furniture and potted plants upon said area. (b) To maintain flowers and shrubs and other landscaping installed in a manner which does not unreasonably interfere with the enjoyment of adjacent Units and Restricted Use Areas. ARTICLE IX RESPONSIBILITIES OF OWNERS Section 9.01. Each Owner of a Unit shall be responsible for the maintenance and repair of his Unit, including the glass doors and windows enclosing his Unit, the frames and tracks of glass doors and windows, the interior and exterior of his Unit, except the exterior surfaces thereof, and all appliances, whether "built-in" or freestanding, within the Unit, and shall also be responsible for the maintenance and repair of the sewer, plumbing, lighting, electrical, and heating systems servicing his Unit, and located either within or without the outside perimeter of the exterior bearing walls thereof, so long as those systems -14- are used exclusively by such Owner and not in common, including television cable equipment and connections, and all appliances and equipment located in said Unit. Each Owner shall also be responsible for the maintenance of the areas he has the exclusive right to use, and shall make repairs in such manner as shall be deemed necessary in the judgment of the Board of Directors to preserve the attractive appearance thereof and protect the value thereof, excluding the maintenance of the exterior surfaces thereof. Section 9.02. In the event an owner fails to maintain the areas as set forth above, and the plumbing, electrical and heating systems thereof, as provided above, or make repairs thereto in such manner as "shall be deemed necessary in the judgment of the Board of Directors to preserve the attractive appearance thereof and protect the value thereof, the Board of Directors shall give written notice to such Owner, stating with particularity the work of maintenance or repair which the Board of Directors finds to be required and requesting that the same be carried out within a period of thirty (30) days from the giving of such notice. In the event the Owner fails to carry out such maintenance or repair within the period specified by the notice, the Board of Directors shall cause such work to be done and shall assess the cost thereof to such Owner. In the event any Owner fails to maintain the exterior of his Unit, except the surfaces thereof and Restricted Use Areas, as provided herein, the Board of Directors, or its agents, shall have the right to enter the Unit to the extent such entry is necessary to perform such repair or maintenance. Section 9.03. No Owner may sell, assign, lease or convey (1) his interest in the Common Area, separate and apart from his Unit, nor (ii) his interest in any Restricted Use Area separate and apart from his interest in the Common Area and Unit. Section 9.04. Party Walls. Each wall which is built as part of the original construction of the Units, and placed on the dividing line between the Units, shall constitute a party wall and, to the extent not inconsistent with the provisions of this Section 9.04, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. Section 9.04.1. The cost of reasonable repair and maintenance of a party wall shall be shared by the Owners of adjacent Units in proportion to such use. Section 9.04.2. if a party wall is destroyed or damaged by fire or other casualty, any Owner who has used the wall may restore it, and if the other Owners thereafter make use of the wall, they shall contribute to the cost of restoration in proportion to such, use without prejudice, however, to the right of any such Owners to call for a larger contribution from the -15- others under any rule of law regarding liability for negligent or willful acts or omissions. Section 9.04.3. ' The right of any owner to contribution from any other-Owner under this Section 9.04 shall be appurtenant to each Unit and shall pass to such owner's successors in title. Section 9.04.4. In the event of any dispute arising concerning a party wall, or under the provisions of this Section 9.04, each party shall choose one arbitrator who shall chose one additional arbitrator, and the decision shall be by a majority of all of the arbitrators. Any such arbitration shall be binding and be governed by t:he provisions of the California Code of Civil Procedure. ARTICLE X COMMON AREA - CONVEYANCE AND IMPROVEMENTS A. Conveyance. Section 10.01. Each Owner of a Unit shall, upon acquiring fee title to said Unit (or title under contract), automatically become a Member of the Association. The membership in the Association shall be appurtenant to and may not be separated from ownership of any Unit and any Restricted Use Area appurtenant thereto which is subject to assessment, and any lender (mortgagee-beneficiary) having a lien upon any unit shall also have a lien upon the appurtenant membership in the Association. Declarant may reserve easements in the Common Area unto itself for a reasonable duration for common driveway purposes, for drainage and encroachment purposes, and for ingress to and egress from the Common Area for the purpose of completing improvements. B. Maintenance by Association. Section 10.02. The Association has been created to act as the "management body" for the maintenance, preservation, improvement and architectural control of the Units and the Common Area, and, in addition to the duties and powers enumerated in this Declaration and contract limiting the generality thereof, the Association, under the direction of the Board, shall have the powers set forth herein below. Section 10,02.1. To levy assessments and otherwise act as set forth in Article VI. Section 10.02.2. Maintain and manage the Common Area not subject to the exclusive use of each Owned provided, however, that if an owner shall fail to maintain or make necessary repairs thereto, the Association shall have the right (but not the obligation) to provide such maintenance or to make such -16- repairs, at the Owner's cost which shall be subject to assessment on said Owner's Unit. Section 10.02.3. Maintain, in good repair, the exterior of all buildings, improvements and appurtenances thereto. Exterior maintenance of a Unit shall be limited to painting of all exterior surfaces of the buildings, and' repairing and replacement of roofs, exclusive of waterproofing. All other maintenance, replacements and repairs shall be the responsibility of each owner; provided, however, that if an owner shall fall to maintain or make repairs or replacements which are the responsibility of such Owner, the Association shall have the right (but not the obligation) to provide sudh maintenance or to make such repairs or replacements at the Owner's cost which shall be subject to assessment on said Owner's Unit. Section 10.02.4. Enter into any contracts and perform any other acts as may be reasonably necessary to perform any duties or obligations provided in this Declaration. Section 10.02.5. Contract for fire and extended coverage insurance for no less than one hundred percent (100%) of the replacement cost of Common Areas and the Units (as defined herein). Such insurance shall name the Association and the Owners as their interests appear. Section 10.02.6. Contract for a comprehensive policy of public liability insurance covering all the Common Area and public ways. Such insurance policy shall contain a "Severability of Interest" clause or endorsement which shall preclude the insurer from denying a claim of an Owner because of the negligent acts of the Association, or of the other Unit Owner. The coverage shall be for at least $300,000 per occurrence for personal injury, and $50,000 for property damage. C. Damage, Destruction, and Condemnation of Common Area, Section 10.03. If any portion of the Common Area is damaged or destroyed by fire or other casualty, there Section 10.03.1. if the cost of repairing or rebuilding does not exceed the amount of available insurance proceeds by more than $5,000.00, the Board of Directors shall thereupon contract to repair or rebuild the damaged portions of the Common Area substantially in accordance with the original plans and specifications therefore. Section 10.03.2. If the cost of repairing or rebuilding exceeds the amount of available insurance proceeds by more than fifteen percent (15%) of the current replacement cost, and the Board of Directors and the owners agree to the repair or restoration of the project, then the Board of Directors shall contract as provided in Section 10.03.1 above. If said Owners do not so agree, then all insurance proceeds shall be paid to the -17- account of the Association to be held for the benefit of the Owners and their mortgagees as their respective interests shall appear. Section 10.3.3. If a bid to repair or rebuild is accepted, the Hoard of Directors shall levy a special assessment in proportion to the interest of each Owner in the Common Area, a portion of which has been damaged or destroyed, to make up any deficiency between the total insurance proceeds and the contract price for such repair and rebuilding, and such assessment and all insurance proceeds, whether or not subject to liens of Mortgagees, shall be paid to the account of the Association to be used for such rebuilding. D. " Condemnation. Section 10.04. If any portion of the Condominium Property is taken by condemnation, eminent domain, or any proceeding in lieu thereof, them Section 10.04.1. In the event of any taking of a Unit or Restricted Common Area the Owner (and his Mortgagee, as their interests may appear) of the Unit shall be entitled to receive the award for such taking and, after acceptance thereof, he and his Mortgagee shall be divested of all further interest in the Condominium Property if such Owner shall vacate his Unit as a result of such taking. In such event, said Owner shall grant his interest in the Common Area, if any, to the other Owners owning a fractional interest in the same Common Area, such grant to be in proportion to the fractional interest in the Common Area then owned by each. Section 10.04.2. In the event of any taking of the Common Area exclusive of Restricted Common Area, the Owners of the Common Area, and their Mortgagees, shall be entitled to receive the award for such taking in proportion to the interest of each in the Common Area= provided, however, that should it be determined to repair or rebuild any portion of the Common Area, such proceeds shall be paid to the Association for that purpose in the same manner and subject to the same terms, conditions and limitations as provided above in Section 10.03 for determining whether to rebuild or repair following damage or destruction. S, Damage and Destruction of Units. Section 10.05. In the event of damage or destruction to any Unit, the Owner thereof shall reconstruct the same as soon as reasonably practicable, and substantially in accord with the original plans and specifications therefore; provided, however, that any such Owner may, with the written consent of the Board, reconstruct or repair the same pursuant to new or changed plans and specifications. In the event the Board of Directors fails to approve or disapprove such changed plans and specifications within sixty (60) days of the receipt thereof, they shall be deemed to have been approved. -18- ARTICLE XI BREACH Section 11.01. A breach of any of the covenants, conditions, and restrictions contained in this Declaration which is not cured within fifteen (15) days from the date of notice of such breach as given by the Board of Directors or Declarant to the Owner on whose property such breach occurs, or whose act or omission constitutes such breach, shall give to Declarant, an Owner and the Board of Directors or its successors, the remedies herein after set forth. Section 11.02. A breach, as set forth in section 11.01 above, and the continuation of any such breach, may be enjoined, abated or remedied by appropriate proceedings in law or equity by any owner, by Declarant or the successors in interest of Declarant, or by the Board of Directors, it is hereby agreed that damages at law for such breach are inadequate. Section 11.03. The results of every act or omission which are a breach, as set forth in Section 11.01 above, are hereby declared to be and constitute a nuisance and every remedy allowed by law or equity against a nuisance, either public or private, shall be applicable against every such result and may be exercised by any owner, by Declarant or its successor in interest as the Owners of said right of re-entry, or by the Board of Directors. Section 11.04. The remedies herein provided for breach of the covenants contained in this Declaration shall be deemed cumulative, and none of such remedies shall be deemed exclusive. Section 11.05. The failure of Declarant, the Board of Directors, or any Owner to enforce any of the covenants contained in the Articles or this Declaration shall not constitute a waiver of the right to enforce the same thereafter, nor shall such failure result in or impose any liability on Declarant. Section 11.06. A breach of covenants contained in the Articles or this Declaration shall not affect or impair the lien or charge of any bona fide mortgage or deed of trust made in good faith and for value on any property= provided, however, that any subsequent Owner of such property shall be bound by said covenants, whether such Owner's title was acquired by foreclosure or in a trustee's sale or otherwise. A lender who acquired title by foreclosure or deed in lieu of foreclosure shall not be obligated to cure any breach of the covenants which occurred prior to such acquisition of title if such breach was or is noncurable or was a type of breach which is not practical or feasible to cure. -19- ARTICLE XII GENERAL PROVISION RE: COVENANTS A. Enforcement. Section 12.01. The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of the Declaration. Failure by the Association or by any owner to enforce any covenant or restriction herein contained shall, in no event, be deemed a waiver of "the right to do so thereafter. Section 12.02. There is no purported power in the Association to cause a forfeiture or abridgement of an Owner's right to the full use and enjoyment of his individually owned subdivision interest on account of a failure by the comer to comply with provisions of the governing instruments or of duly enacted rules of operation for Common Areas and facilities, except where the lose or forfeiture is the result of the 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 levied by the Association. Section 12.03. The Board of Directors may impose monetary penalties, temporary suspensions of an Owner's rights as a member of the Association (including the right to vote) or other appropriate discipline for failure to comply with the governing instruments, provided that the accused is given notice and the opportunity to be heard by the Board of Directors with respect to the alleged violations before a decision to impose discipline is reached. 8. Severability. Section 12.04. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no wise affect any other provisions which shall remain in full force and effect. C. Amendment. Section 12.05. The covenants and restrictions of this Declaration shall run with and bind the land, for a term of twenty (20) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive period: of ten (10) years. This Declaration may be amended by the vote or written consent of members representing all of the voting power of the membership= provided all First Mortgagees consent, in writing, to such amendment if such amendment would affect the rights, powers, privileges, interests or security of said First Mortgagees. -20- ARTICLE XIII SEVERABILITY Section 13.00. The provisions hereof shell be deemed to be independent and severable, and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provisions hereof. ARTICLE XIV RIGHTS OF MORTGAGEES Section 14.01. Any Owner may, voluntarily or involuntarily, encumber his Condominium with or by a real property mortgage, deed of trust, or other instrument of hypothecation. Section 14.02: A breach of any of the foregoing limitations, restrictions, conditions, or covenants except as provided in this Article with respect to a breach by failure to pay any assessment), shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to a Condominium= provided, however, such limitations, restrictions, conditions, and covenants shall be binding upon and effective against any person whose title to said Condominium is acquired by foreclosure, trustee's sale or otherwise. Section 14.03. Each and every lien created by or pursuant to this Declaration, including, but not limited to, the assessment liens described in Article VI, in and shall be subordinate, inferior, and subject to the lien and charge of any (i) first mortgage or deed of trust encumbering any Condominium, given for value and of record prior to the date of said assessment lien, and (ii) any blanket construction (including acquisition) mortgage e) or deeds) of trust encumbering all—or-any pact of the Project, which mortgage(s) or deeds) of trust may have been expressly subordinated to this Declaration. Section 14.03.1. Any person who acquires title to any Condominium by purchasing the same at & foreclosure or trustee's sale of any mortgage or deed of trust described in Section 14.03 above, shell take title to such Condominium free of any claims by or on behalf of the Association for unpaid assessments, charges, and/or-fines (if any) levied by the Association which accrue prior to the time such purchaser takes title to such Condominium, and any assessment lien and/or other lien of the Association then encumbering any such Condominium shall be subordinate, inferior and subject to said purchaser's title to such Condominium. Such unpaid assessments shall be reallocated among the Owners (other than said purchaser). Section 14.03.2. In the event any First Mortgagee (1) shall acquire title to any Condominium by judicial foreclosure, -21- exercise of power of sale contained in any real property mortgage or deed of trust, or deed in lieu of foreclosure, and (ii) shah thereafter sell and convey-such Condominium, any real property mortgage or deed of trust received by such lender as security for all or a portion of the purchase price of such Condominium ail be incontrovertibly deemed "given for value". Notwithstanding the providence of Section 14.03.1 above, any lien created by or pursuant to this Declaration, which lien arises from the failure to pay assessment(s) accruing during the period of such Mortgagee's holding of title to said Condominium, shall be a lien superior to the lion of said real property mortgage or deed of trust received to secure a portion of said purchase price. *• Section 14.04. In the event of any breach or default hereunder by any Owner, and in the further event such breach or default is not cured within 60 days after its occurrence, the Board shall, if any First Mortgagee of such Owner shall have so requested of the Association, immediately notify, in writing, such First Mortgagee of said default; provided, however, failure to give such notice shall in nowise affect any right or remedy of any enforcing person under the Article entitled "Scope; Enforcement". ARTICLE XV INTERPRETATION Section 15.00. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and operation of a condominium project. Failure to enforce any provision hereof shall not constitute a waiver of the right to enforce said provisions or any other provision hereof. ARTICLE XVI LIMITATION OF LIABILITY Section 16.00. The liability of any Owner for performance of any of the provisions hereof shall terminate upon sale, transfer, assignment, or other divestiture of said Owner's entire interest in his or her Unit with respect to obligations arising hereunder from and after the date of such divestiture. ARTICLE XVII MISCELLANEOUS Section 17.01. The plural shall include the singular, and the masculine the feminine when required for interpretation. -22- Section 17.02. Any Owner may, at any time during business hours, at his own expense, cause an audit or inspection to be made of the books and records of the Board of Directors. Section 17.03. Except as otherwise provided heroin, the provisions of this Declaration, before the closing of title on the first unit, shall be amended by the Record Owners of the Properties. Thereafter, it may be amended by an instrument, in writing, signed and acknowledged by Records Owners holding seven- percent (751) of the total vote hereunder and, if otherwise required by law, with the consent of the Department of Real Estate, the Amendment to be effective upon recordation at the office of the Recorder of San Die*go County, California. Section 17.01. Nothing herein shall be construed to grant the City of Carlsbad, California, power or authority to enforce the provisions of this Declaration nor constitute the City an enforcing agent of any owner. IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunto set its hand and seal this 19 day of ?nnn DECLARANT: u STATE OF CALIFORNIA) ) ss COUNTY OF SAN DIEGO) On before me, the,undersigned, a r said State, personally appeared RobertNotary Public in and Stine and Margare£5.Stih~e, personally known^tfo me, or proved to me on the basis of satisfactory evidence, to he^the persons whose names are subscribed to the within instrumeprlf7 and acknowledged to me that they executed the same WITNESS my hand and official (Seal) DO /"PUBLIC-CALIFORNIA -'SAN DIEGO COUNTY o) My CoKm Expire. Apr* 12,2003 „ -23- EXHIBIT A Lot 135 of La Costa South Unit No. 1, in the City of Carlsbad, County of San Diego, State of California, according to map there- of No. 6117 filed in the office of the San Diego County Recorder On November 3, 1969. ALL PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF San Diego } }SS. .}attach to Declaration of Covenants Conditions and Restrictions Lot 135 of La Costa South Unit No. 1 Matilda LepaOn December 19, 2000 before ^ _ personally appeared *Robert A. Stine and Margaret J. Stine* .personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is(7are)subscribed to the within instrument and acknowledged to me that he/shffiheyJBxecuted the same in his/herffiejrjauthorized capacity(ies)- and that by his/hertftaiiysignaturete) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature flrffl/fa/ffl. MATILDA LEPA COMM. #1215813 NOTARY PUBUOCAUFOBNIA SAN DIEGO COUNTY MyComm ExpketApriM2,2003 (This area for official notarial seal! 4/W *H1 1