HomeMy WebLinkAboutCT 00-16; Poinsettia Properties PA 2, 3, & 4; Tentative Map (CT) (2)Recording requested by:
FIDELITY NATIONAL TITLE.
When recorded return to:
GALLAGHER i MOORE
Frederick C. Moore, Esq.
2 Park Plaza, Suite 300
Irvine, Califomia 92614
THE ORIGINAL OF THIS DOGUICHT ^" ^ '
yftS RECORDED OH SEP 30, 2002
BOCUHENT NUHBER 2002-0838221
GREGORY J. SHITH, COIHTY RECORDER
DIEGO COUNTY RECORDER'S OFFICE
TIHE: 11:29 ftH
CONFORIWED COPY
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
WATERS END
A Residential Planned Development
NOTE: AS MORE FULLY DESCRIBED IN SECTION 5 OF ARTICLE V OF
THIS DECLARATION, IN THE EVENT OF ANY DISPUTES ARISING HEREUNDER,
OR RELATING TO THE DESIGN AND/OR CONSTRUCTION OF THE PROJECT
GOVERNED HEREBY, SUCH DISPUTE SHALL BE SUBMITTED TO BINDING
ARBITRATION WHICH IS A METHOD AND FORM OF ALTERNATIVE DISPUTE
RESOLUTION.
18324.220-6024.FCM 092602
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 3
1. Annexation Property . : 3
2. Architectural Review Committee 3
3. Architectural Guidelines 3
4. Articles 3
5. Assessments 3
6. Association 4
7. Board 4
8. By-Laws 4
9. CAS 4
10. City • 4
11. Common Area 5
12. Common Expenses 5
13. County ..... ....... 6
14. Declarant 6
15. Declaration • 6
16. Dispute 6
17. DRE 6
18. Entitlements From City 6
19. FHLMC 7
20. FNMA 7
21. GNMA 7
22. Limited Warranty . 7
23. Improvements 7
24. Lot • 7
25. Member • 8
26. Mortgage 8
27. Mortgagee 8
2 8. Mortgagor . 8
29. Notice and Hearing 8
30. Notice of Annexation 8
31. Owner 8
32. Phase • • 9
33. Project 9
34. PWC 9
35. Property 9
36. Residence 9
37. Rules and Regulations . 9
38. VA/FHA 9
ARTICLE II GENERAL PLAN OF DEVELOPMENT . 10
1. Introduction 10
2. Rights and Obligations of Owners ..... 10
3. Description of Common Area 10
4. Membership in the Association 10
5. Annexation of Subsequent Phases ..... 11
6. Declarant's Use of Streets and Utilities 11
18324.220-6024.FCM 092602 (i)
ARTICLE III
ARTICLE IV
ARTICLE V
7. Declarant's Control of Development ... 11
8". Non-Liability of Declarant 13
RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE COMMON AREA 13
1. Owners' Easements 13
2. Limitations on Owners' Easement Rights . 13
3. Easements for Common Fences 15
4. Delegation of Common Area Use Rights . . 16
5. Easements for Public Services and
Pedestrian Access 16
6. Easements for Community Cable Television,
Telecommunication Systems and Alarm
System Cabling 16
7. Easements Over Sidewalks 17
8. Easements for Unintentional Encroachments 17
9. Easements for Utilities 17
10. Easements for Maintenance of the Common
Area 19
11. Easements for Clustered Mailboxes/Light
Standards -19
12. Easements for Drainage 19
13. Easement for Area Drains 20
14. Easements for Construction and Sales . . 20
15. Reservation of Construction Rights by
Declarant 21
16. Title to the Common Area 21
17. Reservation of Common Area Easements . . 23
THE ASSOCIATION 23
1. Membership 23
2. Voting Rights 23
3. Vesting of Voting Rights 24
4. Adjustment of Voting Rights 24
5. Suspension of Voting Rights 24
6. Transfer 25
7. Proxies 25
8. Record Dates 25
9. Notices 25
POWERS AND DUTIES OF THE ASSOCIATION 26
1. Management Body 26
2. Powers 26
3. Duties . . . : 28
4. Discretionary Powers 37
5. Arbitration of Disputes 38
6. Repair of Willful Damage to Common Area . 43
7. Delegations of Duties 43
8. Right of Entry for Emergency 43
18324.220-6024.FCM 092602 (ii)
9. Right of Entry for Repairs . . , 43
10. Limitations on Board Action 43
11. Licenses, Easements and Rights-of-Way . . 45
12. New Improvements 45
13. Association Rules and Regulations .... 45
14. Nonliability and Indemnification .... 46
ARTICLE VI ASSESSMENTS 48
1. Creation of the Lien and Personal
Obligation of Assessments 48
2. Purpose of Regular Assessments: Levy and
Collection 48
'3. Regular Assessments - Basis ....... 49
4. Special Assessments for Capital
Improvements 52
5. Compliance Assessments 53
6. Special Benefit Assessments 53
7. Date of Commencement of Regular
Assessments: Due Dates ......... 54
8. Collection of Assessments 55
9. Notice of Increase in Assessments .... 55
10. Certification of Payment 55
11. Delivery by Owner 55
12. Delivery by Declarant 56
13. Reserves 56
14. Offsets and Waiver Prohibited 56
15. Exempt Property ....... 56
ARTICLE VII EFFECT OF NONPAYMENT OF ASSESSMENTS:
REMEDIES' OF THE ASSOCIATION 57
1. Effect of Nonpayment of Assessments:
Remedies of the Association 57
2. Notice of Delinquent Assessments .... 58
3. Foreclosure Sale 58
4. Curing of Default 59
5. Cumulative Remedies 59
6. Mortgagee Protection 59
ARTICLE VIII USE RESTRICTIONS 59
1. Private Residential Dwelling 59
2. Common Area Use 60
3. Conduct Affecting Insurance 60
4. Liability for Damage . . . . • 60
5. Signs 60
6. Maintenance of Animals . 61
7. Quiet Enjoyment 61
8. Grading/Irrigation 61
9. Structural Changes 62
10. Improvements 62
18324 .220-6024 .FCM 092602 (Hi)
11. Height Restrictions 63
12. Balconies, Trellises, Decks, Patio Covers
and Other Additions 63
13. Grass Planting Strips in Driveways ... 63
14. Porches 63
15. Sewer Pump Station 63
16. Open Space Areas 63
17. Sight Distance Corridors ........ 64
18. Post Tension Slabs 64
19. Windows 64
20. Commercial Activity 65
21. Parking 65
22. Regulation of Parking 66
23. Compliance With Management Documents . . 67
24. Declarant's Improvements . 67
25. Solar Heating ........ 67
26. Antennas 67
27. Leasing 68
28. Drilling ..... 68
29. Trash 68
30. Drainage 69
31. Prohibition Against Further Subdivision . 69
32. Patios and Balconies 69
33. Exemption of Declarant 69
34. No Easements for View Purposes; Disclaimer 70
35. Use of Front Entrance to Project . . . . 71
ARTICLE IX ARCHITECTURAL REVIEW - APPROVAL . 71
1. Exemptions From Architectural Review . . 71
2. Architectural Review 72
3. Architectural Review Committee 72
4. Meetings of the Architectural Review
Committee .73
5. Architectural Standards/Guidelines ... 73
6. Architectural Approval - Review of Plans
and Specifications 74
7. Decisions of the Architectural Review
Committee . 75
8. Submittal to City - Right of
Architectural Review Committee to Review 76
9. Approval of City 76
10. Conflicts Between City and Architectural
Review Committee 76
11. No Waiver of Future Approvals 77
12. Compensation of Members . . . • 77
13. Variances 77
14. Inspection of Work 77
15. Non-Liability of Architectural Review
Committee Members 78
16. Appeal 78
18324.220-6024.FCM 092602 (iv)
ARTICLE X
ARTICLE XI
ARTICLE XII
ARTICLE XIII
REPAIR AND MAINTENANCE 78
1. Repair and Maintenance by Association . . 78
2. Maintenance Manual 81
3. Maintenance of Phases Subject to
Construction Easement . 82
4. Repair and Maintenance by Owner 82
5. Maintenance of Public Utilities ..... 83
6. Damage and Destruction Affecting a
Residence - Duty to Rebuild . 83
7. Owners' Cooperation for Maintenance ... 84
ENVIRONMENTAL AND OTHER DISCLOSURES
AND REQUIREMENTS 84
1. Environmental Requirements 84
DAMAGE OR DESTRUCTION TO
THE COMMON AREA 86
1. Restoration of Damaged Common Area ... 86
2. Election by Owners Not to Restore
Damaged Common Area 87
3. Retention of Excess Insurance Proceeds
in General Fund 87
CONDEMNATION 87
1. Distribution of Awards - Common Area . . 87
2. Board of Directors as Attorney-in-Fact . 87
ARTICLE XIV
ARTICLE XV
COVENANT AGAINST PARTITION ..... 88
1. Covenant Against Partition 88
INSURANCE 88
1. Required Insurance Coverage 88
2. Optional Insurance Coverage 89
3. Notice of Cancellation of Insurance ... 90
4. Review of Coverage 90
5. Waiver by Owners 90
6. Premiums, Proceeds and Settlement .... 90
7. Rights and Duties of Owners to Insure . . 91
8. Trustee for Policies 91
9. Mortgage Clause . 91
10. Compliance With Requirements of FHLMC,
FNMA, and VA/FHA 92
11. Required Waiver 92
12. Annual Notification of Insurance .... 93
18324.220-6024.FCM 092602 (v)
ARTICLE XVI MORTGAGEE PROTECTION 93
1. Mortgagee Protection Provisions 93
2. Violation of Mortgagee Protection
Provisions 97
3. Amendments to Conform With Mortgagee
Requirements 97
ARTICLE XVII ENFORCEMENT OF BONDED OBLIGATIONS 98
1. Enforcement of Bonded Obligations .... 98
ARTICLE XVIII ANNEXATION OF ADDITIONAL PROPERTY 99
1. Development of the Project ....... 99
2. Annexation Pursuant to General Plan of
Development 99
3. Annexation Pursuant to Approval 99
4. Notice of Annexation 99
5. Effective Date of Annexation 100
6. Right of De-Annexation . 100
7. Amendments to Notice of Annexation . . . 100
8. Parties to Notice of Annexation 101
ARTICLE XIX GENERAL PROVISIONS .... 101
1. Enforcement ...... 101
2. Severability 103
3. Term . 103
4. Construction 103
5. Singular Includes Plural . 103
6. Amendments 103
7. Encroachments 106
8. Notices • 106
9. Attorneys' Fees 107
10. Mergers or Consolidations 107
11. No Representations or Warranties .... 107
12. Project Disclosures 107
13. Davis-Stirling Act 108
14. Conflicts in Management Documents For
the Project 109
15. Requirements of the City 109
EXHIBITS
Exhibit A Street Access/Maintenance Areas
Exhibit B Annexation Property
Exhibit C Pedestrian Trails
Exhibit D Walls and Fences
Exhibit E Balcony, Trellis,Deck Areas
Exhibit F Sight Distance Corridors
Exhibit G Association Maintained Landscape Areas
Exhibit H Bus Stop Locations
Exhibit I Owner Maintained Common Areas
18324.220-6024.FCM 092602 (vi)
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
WATERS END
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRIC-
TIONS, AND RESERVATION OF EASEMENTS is made this day of
• _, 2002, by WL HOMES LLC, a Delaware limited liability
company ("Declarant").
WITNESSETH:
A. Declarant is the owner of that certain real property
located in the City of Carlsbad, County of San Diego, State of
California, more particularly described as follows:
Lots 7 through 12, inclusive, Lots 3 8 through
42, inclusive, Lots 141 through 145, inclu-
sive. Lots 182 through 196, inclusive, and
Lots 207 through 211, inclusive, of Map of
Carlsbad Tract CT 00-16, Poinsettia Proper-
ties, in the City of Carlsbad, County of San
Diego, State of California, according to Map
thereof No. 14407, filed in the Office of the
County Recorder of San Diego County, June 19,
2002
(hereinafter referred to as the "Lots").
B. Declarant is also the owner of that certain real
property located in the City of Carlsbad, County of San Diego,
State of California, more particularly described as follows:
Lots 220 through 222, inclusive, of Map of Carlsbad
Tract CT 00-16, Poinsettia Properties, in the City
of Carlsbad, County of San Diego, State of Cali-
fornia, according to Map thereof No. 14407, filed
in the Office of the County Recorder of San Diego
County, June 19, 2002; and
A non-exclusive easement for ingress, egress,
access, general street usage, drainage, and utility
purposes, in, on, over, under, across and through
those portions of Lot 250 of Map of Carlsbad Tract
CT 00-16, Poinsettia Properties, in the City of
Carlsbad, County of San Diego, State of California,
according to Map thereof No. 14407, filed in the
Office of the County Recorder of San Diego County,
June 19, 2002, described and/or depicted on Exhibit
"A" attached hereto necessary to access the Lots.
18324.220-6024.FCM 092602
(hereinafter referred to as the "Common Area"). The Lots and the
Common Area are hereinafter sometimes collectively referred to as
the "Property" or "Phase 1".
C. Declarant is also the owner of that certain real
property located in the City of Carlsbad, County of San Diego,
State of California, more particularly described in Exhibit "B"
attached hereto ("Annexation Property"), which may, from time to
time, be annexed to and become part of the Project (as hereinafter
defined), in accordance with the Article herein entitled "Annex-
ation of Additional Property."
D. Declarant desires to develop the Property and the
Annexation Property as a common interest development, more
particularly described in Section 1351(k) of the California Civil
Code as a "planned development" (hereinafter referred to as the
"Project"), consisting of single-family detached homes, recreation
and open space areas, and other improvements, as more fully de-
scribed below. The development of the Project shall, if applicable,
be consistent with the overall plan of development submitted to and
approved by the Department of Veteran Affairs and/or the Federal
Housing Administration (hereinafter referred to as the "VA/FHA").
E. Declarant deems it desirable to impose a general
plan for the development, maintenance, improvement, protection,
use, occupancy, and enjoyment of the Project, and to establish,
adopt, and impose covenants, conditions, and restrictions upon the
Project for the purpose of enforcing, protecting, and preserving
the value, desirability, and attractiveness of the Project.
F. Declarant deems it desirable for the efficient en-
forcement, protection and preservation of the value, desirability
and attractiveness of the Project to create a corporation which
shall be delegated and assigned the powers of administering and
enforcing said covenants, conditions and restrictions.
G. The Waters End Homeowners Association, a California
nonprofit, mutual benefit corporation, has been or will be incor-
porated under the laws of the State of California for the purpose
of exercising the aforesaid powers.
H. Declarant intends to convey the Property subject to
the covenants, conditions, and restrictions set forth hereinbelow.
NOW, THEREFORE, Declarant agrees and declares that it has
established, and does hereby establish, a plan for the development,
maintenance, protection, improvement, use, occupancy, and enjoyment
of the Project, and has fixed, and does hereby fix, the covenants,
conditions, restrictions, easements, reservations, equitable
servitudes, liens, and charges (hereinafter collectively referred
18324.220-6024.FCM 092602 -2-
to as the "Protective Covenants") upon the Project. Each and all of
the Protective 'Covenants shall run with the land, shall be
enforceable, and shall inure to the benefit of and be binding upon
Declarant, its successors and assigns, all subsequent owners of all
or any portion of the Project, together with their grantees,
successors, heirs, executors, administrators, devisees, and
assigns, and may be enforced by any Owner or the Association.
ARTICLE I
DEFINITIONS
Section 1. "Annexation Propertv" shall mean and refer
to that certain real property described in Exhibit "B" attached
hereto (hereinafter referred to as "Annexation Property"), includ-
ing all Improvements (as defined below) constructed thereon, all or
any portion of which may be annexed into the Project as set forth
in the Article herein entitled "Annexation of Additional Property."
Section 2. "Architectural Review Committee" shall
mean and refer to the architectural committee created pursuant to
the Article herein entitled "Architectural Review - Approval."
Section 3. "Architectural Guidelines" shall mean and
refer to those certain architectural standards, landscape standards
and other general policies, procedures and criteria which may be
adopted by the Board pursuant to this Declaration for use by the
Architectural Review Committee in reviewing plans and specifica-
tions for proposed Improvements to an Owner's Lot. The Architec-
tural Guidelines are general guidelines and may be amended from
time to time by a majority of the Board. A copy of the Architec-
tural Guidelines may be obtained from the Architectural Review
Committee.
Section 4. "Articles" shall mean and refer to the Ar-
ticles of Incorporation of Waters End Homeowners Association, as
filed in the Office of the Secretary of State of the State of
California, as such Articles may be amended, from time to time.
Section 5. "Assessments" shall be used as a generic
term which shall mean and refer to the following:
(a) "Regular Assessment" shall mean and refer to an
annual charge against each Owner and his respective Lot rep-
resenting a portion of the Common Expenses of the Association;
(b) "Compliance Assessment" shall mean and refer to
the charge against an Owner representing (i) the costs incur-
red by the Association in the repair of any damage to the
18324.220-6024.FCM 092602
Common Area or any Improvement for which the Association or an
Owner (or any member of his/her family, or his/her guests,
invitees, tenants or lessees) was responsible, (ii) the costs
incurred by the Association in bringing such Owner and his Lot
into compliance with this Declaration, (iii) any amount due
the Association based upon disciplinary proceedings against an
Owner in accordance with this Declaration, and/or (iv) any
amount due the Association to reimburse the Association for
administrative costs attributable to an Owner as provided
herein;
(c) "Special Assessment" shall mean and refer to
the charge against fnOwnerandhis respective Lot repre-
senting a portion of the cost of reconstructing any damaged or
destroyed portion or portions of the Common Area, of con-
structing or installing any capital improvements to the Common
Area, or of taking any extraordinary action for the benefit of
the Common Area (e.g., including but not limited to funding
the reserve accounts) or the membership of the Association
pursuant to the provisions of this Declaration; and
(d) "Special Benefit Assessment" shall mean and
refer to a charge levied by the Association against an Owner
and his respective Lot to cover the expenses incurred by the
Association in the operation, maintenance, repair and/or
funding of reserves for a portion of the Project designated by
Declarant or the Association as a "Special Benefit Area,"
which expenses are allocable only to the Owners and their Lots
within such an Area.
Section 6. "Association" shall mean and refer to
Waters End Homeowners Association, a California nonprofit, mutual
benefit corporation, in which all Owners shall have a membership
interest as more particularly described hereinbelow, provided that
membership shall be limited to Owners.
Section 7. "Board" shall mean and refer to the Board
of Directors of the Association, elected in accordance with the By-
Laws of the Association and this Declaration.
Section 8. "By-Laws" shall mean and refer to the By-
Laws of the Association which have been, or will be, adopted by the
Board, as such By-Laws may be amended, from time to time.
Section 9. "CAS" shall mean and refer to Construction
Arbitration Services, Inc., including any successors thereto.
Section 10. "Citv" shall mean and refer to the City of
Carlsbad, California, a legal subdivision of the State of Califor-
18324.220-6024.FCM 092602 •4-
nia, and its various departments, divisions, employees, and
representatives.'
Section 11. "Common Area" is used herein as a generic
term to mean and refer to: (a) all real and personal property, and
to all Improvements thereon, which are owned by the Association;
and (b) all real property, and Improvements thereon, over which the
Association has an easement (e.g., the street easements depicted on
Exhibit "A" - notwithstanding the depiction of multiple phases of
access and maintenance easement areas thereon, .Owners shall
initially only be granted easements over those portions of the
streets applicable to their respective DRE Phase of development;
likewise, the Association will only have the maintenance obligation
for those portions of the streets associated with that certain DRE
Phase of development where assessments have commenced against the
Lots in such Phase. As additional phases of development are annexed
into the Project, the easement rights of the Owners shall expand to
such additional Common Area and the Association's maintenance
responsibilities shall also expand to include such additional
Common Area), lease and/or which the Association is otherwise
responsible pursuant to this Declaration to manage, control and/or
maintain for the common use, benefit and enjoyment of all Owners in
the Project. The Common Area may also include, without limita;tion,
private streets and paseos, private street lights, a private sewer
pump station (currently it is anticipated that the City will own
and maintain the sewer pump station servicing the Project), if any,
private- storm drains, public trails, open space areas, recreational
facilities (e.g., swimming pools, spas, restrooms, parks, basket-
ball and volleyball courts, play areas for children, a recreational
vehicle storage lot, vehicular entry gates, clustered mailboxes.
Project perimeter fences, walls, sound walls, retaining walls, and
such other Improvements as may be designated, from time to time,
and set forth in one (1) or more Notices of Annexation recorded in
the Office of the County Recorder, pursuant to the Article herein
entitled "Annexation of Additional Property." The Common Area in
Phase 1 of the Project generally consists of that certain real
property described in Paragraph B of the recitals and described
and/or depicted in Exhibits "A", "C", "D", "G" and "H" attached
hereto (notwithstanding such exhibits, the maintenance obligations
for the Association shall commence only with respect to those areas
and Improvements which are within a DRE Phase where Assessments
have commenced against the Lots located therein).
Section 12. "Common Expenses" shall mean and refer to
the actual and estimated costs to be paid by the Association for
the following: (a) owning, maintaining, managing, operating,
painting, repairing, and replacing the Common Area, one bus stop
(if required by the City in the Project Conditions of Approval) and
trash receptacle at one bus stop (see Exhibit "H" hereto) ; (b)
managing and administering the Association, including, but not
18324.220-6024.FCM 092602
limited to, compensation paid by the Association to managers,
accountants, attorneys and any Association employees; (c) providing
utilities and other services to the Common Area; (d) providing
insurance as provided for herein; (e) paying that portion of any
Assessment attributable to Common Expenses not paid by the Owner
responsible for payment; (f) paying taxes for the Association; and
(g) paying for all other goods and services designated by, or in
accordance with, other expenses incurred by the Association for the
benefit of all Owners, and reasonably required for the Association
to perform its powers and duties as set forth in this Declaration.
Additionally, the Common Expenses shall include adequate reserves,
as the Board shall determine to be appropriate, for the repair and
replacement of those elements of the Common Area which must be
repaired or replaced on a periodic basis, rather than on a regular
annual basis.
Section 13 . "County" shall mean and refer to the Coun-
ty of San Diego, California, a legal subdivision of the State of
California, and its various departments, divisions, employees, and
representatives.
Section 14. "Declarant" shall mean and refer to WL
HOMES LLC, a Delaware limited liability company, its successors,
and to any person or entity acquiring all of Declarant's interest
in the Project (including all of Declarant's rights and obligations
as created and established herein) pursuant to a written assignment
from Declarant which is recorded in the Office of the County Re-
corder.
Section 15. "Declaration" shall mean and refer to this
Declaration of Covenants, Conditions and Restrictions, and Reser-
vation of Easements, and to all amendments to this Declaration as
may be recorded, from time to time, in the Office of the County
Recorder, in accordance with Section 1351(h) and Section 1353 of
the California Civil Code.
Section 16. "Dispute" shall have the meaning set forth
in Section 14 of Article VI.
Section 17. "DRE" shall mean and refer to the Depart-
ment of Real Estate of the State of California, which administers
the sale of subdivided lands pursuant to Sections 11000, et seg. ,
of the California Business and Professions Code, or any similar
California statute hereinafter enacted.
Section 18. "Entitlements From City" shall mean the
disposition and development agreement, including any and all
amendments thereto, if any, all building permits and related
permits, conditions of approval, and all documents, instruments or
18324.220-6024.FCM 092602 -6-
similar writings which regulate or relate to utilization of real
property in the Project.
Section 19. "FHLMC" shall mean and refer to the
Federal Home Loan Mortgage Corporation (The Mortgage Corporation)
created by Title III of the Emergency Home Finance Act of 1970, as
amended, from time to time, including any successors thereto.
Section 20 . "FNMA" shall mean and refer to the Federal
National Mortgage Association, a government-sponsored private
corporation established pursuant to Title VIII of the Housing and
Urban Development Act of 1968, as amended, from time to time,
including any successors thereto.
Section 21. "GNMA" shall mean and refer to the Govern-
ment National Mortgage Association administered by the United
States Department of Housing and Urban Development, including any
successors thereto.
Section 22 . "Limited Warranty" shall, mean and ref er to
the express written limited warranty commonly known as the "Home
Builder's Limited Warranty," which is to be administered by "PWC"
(as defined below) and provided to Owners at the time of acquisi-
tion of a Lot.
Section 23 . "Improvements" shall mean and refer to all
structures and appurtenances thereto of every kind, including, but
not limited to. Residences, street lights, buildings, awnings,
shades, screens, screen doors, skylights, side yard and rear yard
fencing, mail kiosks, swimming pools, spas, garages, pavement,
driveways, walkways, parking areas, perimeter fences, walls,
retaining walls, flag poles, monument signs, patios, grading of a
Lot or disturbing the existing grade in any manner, irrigation
equipment and all related facilities, exterior air conditioning
units, solar panels and related facilities, greenbelts, drainage
swales, streetscapes, antennas and related facilities, exterior
lighting and any landscaping which, if left in its natural state,
would grow to a height in excess of twenty-five feet (25') .
Section 24. "Lot" shall mean and refer to a plot of
land as shown upon the recorded final map or subdivision map of the
Project (as same may be adjusted from time to time by a Lot Line
adjustment or Certificate of Compliance recorded in the office of
the County Recorder) , and to all Improvements, including the
Residence, constructed thereon. Only those plots of land which are
designed and intended for the construction of a Residence and
ownership by an individual Owner shall be deemed "Lots." "Lot"
shall not mean or refer to any plot of land owned in fee by the
Association as Common Area.
18324.220-6024.FCM 092602 •7-
Section 25. "Member" shall mean and refer to every
person or entity' who holds membership in the Association, as more
particularly set forth in the Article herein entitled "The Asso-
ciation, " and shall be synonymous with the term "Owner."
Section 26. "Mortgage" shall mean and include any
mortgage or deed of trust, or other conveyance of a Lot to secure
the performance of an obligation, which conveyance will be recon-
veyed upon the completion of such performance, including an in-
stallment land sales contract (as defined in Sections 2 985 through
2985.6 of the California Civil Code, as same may be amended, from
time to time). The term "Deed of Trust," when used herein, shall be
synonymous with the term "Mortgage."
Section 27. "Mortgagee" shall mean and refer to a per-
son or entity to whom a Mortgage is made, and shall include the
beneficiary of a Deed of Trust or the vendor under an installment
land sales contract, as the case may be, and the assignor of a
Mortgagee, beneficiary or vendor.
Section 28. "Mortgagor" shall mean and refer to a per-
son or entity who mortgages his or its property to another, i.e.,
the maker of a Mortgage, and shall include the trustor of a Deed of
Trust and the vendee under an installment land sales contract.
Section 29. "Notice and Hearing" shall mean and refer
to written notice and a hearing before the Board or the Architec-
tural Review Committee of the Association, or other tribunal
created by the Board in the manner provided in the By-Laws, at
which the affected Owner shall have an opportunity to be heard in
the manner provided herein and in the By-Laws.
Section 30. "Notice of Annexation" shall mean and
refer to that certain instrument utilized to a,nnex all or any
portion of the Annexation Property, in accordance with the provi-
sions of this Declaration, thereby subjecting said subsequent Phase
to the provisions of this Declaration and to the jurisdiction of
the Association.
Section 31. "Owner" shall mean and refer to the record
Owner, or Owners if more than one (1) , or the purchaser under a
conditional sales contract of fee title to, or an undivided in-
terest in, any Lot in the Project. The term "Owner" shall include
the Declarant, the vendee under an installment land sales contract
(as described in Sections 2985 through 2985.6 of the California
Civil Code, as same may be amended, from time to time) and the
holder of a leasehold estate having a term of twenty (20) or more
years, including renewal periods. The foregoing is not intended to
18324.220-6024.FCM 092602 -8-
include persons or entities who hold an interest in a Lot merely as
security for the" performance of an obligation.
Section 32. "Phase" shall mean and refer to: (a) the
Lots and the Common Area; and (b) one (1) or more lots within the
Annexation Property which are annexed to the Project by the
recordation of a Notice of Annexation in the Office of the County
Recorder and, if Lots are included therein rather than merely
Common Area, for which a Final Subdivision Public Report has been
issued by the DRE.
Section 33. "Proiect" shall mean and refer to the
Property and to all Improvements, including the Residences, con-
structed thereon and the Common Area and all Annexation Property
which is made subject to this Declaration in accordance with the
applicable provisions of this Declaration.
Section 34. "PWC" shall mean and refer to Professional
Warranty Service Corporation, including any successors thereto.
Section 35. "Property" shall mean and refer to all of
that certain real property described in Paragraphs A and B of the
recitals hereinabove.
Section 36. "Residence" shall mean and refer to the
individual dwelling and the related Improvements which are con-
structed upon a separate Lot and which are designed and intended
for use and occupancy as a residential residence.
Section 37. "Rules and Regulations" shall mean and re-
fer to the Rules and Regulations adopted by the Board pursuant to
the By-Laws and this Declaration, as they may be amended, from time
to time.
Section 3 8. "VA/FHA" shall mean and refer to the
United States Veterans Administration and/or Federal Housing Ad-
ministration, including the department or agency of the United
States government as shall succeed to the VA and/or FHA.
Section 39. Application of Definitions. The aforesaid
definitions shall be applicable to this Declaration and to any
supplements or amendments hereto, including, but not limited to,
any Notices of Annexation filed or recorded pursuant to the pro-
visions of this Declaration, unless the context shall prohibit such
application.
18324.220-6024.FCM 092602
ARTICLE II
GENERAL PLAN OF DEVELOPMENT
Section 1. Introduction. The Declarant has designed
Waters End as a multi-phase planned residential community, which,
if completed as proposed, will consist of approximately two hundred
and nineteen (219) single family Residences, together with various
Common Area improvements, related amenities, and open space. The
Project will be developed in accordance with the general plan of
development submitted to and approved by the City, VA/FHA, and the
DRE. The Association will maintain the Common Area and will be the
management body for the Project, as provided herein.
Section 2. Rights and Obligations of Owners. Each
Owner of a Lot in the Project shall automatically become a Member
of the Association and shall be obligated for the payment of
Assessments to the Association. Subject to the provisions of this
Declaration which reserve rights in favor of. the Declarant, each
Owner, his family members, tenants and invitees will be entitled to
the use and enjoyment of the Common Area of the Project.
Section 3. Description of Common Area. The Common
Area associated with Phase 1 of the Project is planned to consist
generally of private streets, the street easements areas depicted
on Exhibit "A" associated with access to the Lots, private street
lights, landscape areas, private storm drains, open space and
recreational areas, and Project perimeter walls and fences. Each
Owner of a Lot in the Project shall have a nonexclusive easement
appurtenant to his Lot for use and enjoyment of all Common Area
within the Project, in accordance with the terms and provisions of
this Declaration. Except as otherwise provided herein, the Asso-
ciation shall be responsible for the ownership, if applicable,
maintenance, and operation of all Common Area within the Project.
Section 4. Membership in the Association. As more
particularly set forth in this Declaration, each Owner of a Lot in
the Project shall automatically become a member of the Association,
and shall be obligated for the payment of Assessments to the
Association. In addition, each Owner, his family, members, lessees,
tenants, guests and invitees, will be entitled to the use and
18324.220-6024.FCM 092602 •10-
enjoyment of the Common Area within the Project, in accordance with
this Declaration; the By-Laws and Rules and Regulations adopted by
the Board.
Section 5. Annexation of Subsequent Phases. At such
time as subsequent Phases are developed, if ever. Declarant shall
annex such Phases to the Project in accordance with the provisions
of the Article herein entitled "Annexation of Additional Property."
Section 6. Declarant's Use of Streets and Utilities.
For as long as Declarant owns a Lot in Carlsbad Tract CT 00-16,
Declarant hereby reserves, together with the right to grant and
transfer all or a portion of the same, easement rights to use the
private street system and any private utilities within the Project
for, including, but not limited to, construction, access and
connection of utilities by Declarant for purposes of developing the
real property comprising the Carlsbad Tract CT 00-16.
Section 7. Declarant's Control of Development. In
order that the Project be completed and established as a planned
residential community, for as long as Declarant owns any interest
in Carlsbad Tract CT 00-16 or five years from the recordation of
this Declaration, Declarant shall have sole discretion and control
over all aspects of construction of Residences and Improvements
owned by itself, and over the selling and marketing of Lots in the
Project, subject to all applicable governmental regulations and the
City's Municipal Code. Such discretion and control shall include,
but shall not be limited to, the right and ability to:
(a) Install, construct, modify, alter or remove any
Improvements in the Project;
(b) Redesign or otherwise alter the style (e.g.
architectural), size (e.g., adding additional square footage
or reducing the square footage of the Residences), color or
appearance of any Improvements in any portion of the Project
owned by Declarant;
(c) Construct such additional Improvements on any
portion of the Project owned by Declarant;
(d) Subdivide, re-subdivide, grade or regrade any
portion of the Property and/or Annexation Property owned by
Declarant; and/or
(e) Otherwise control all aspects of designing and
constructing the Improvements in the Project and regulating
the marketing of Lots in the Project.
18324.220-6024.FCM 092602 •11-
In furtherance thereof. Declarant hereby reserves unto itself, and
its successors and assigns, a nonexclusive easement for ingress and
egress on, over and across the Project as necessary to construct
Improvements, and further reserves for itself the right, (a) until
all Lots in Carlsbad Tract CT 00-16 are initially sold (and escrows
have closed), or (b) five (5) years from the recordation of this
Declaration, whichever occurs first:
i) A nonexclusive easement for ingress and egress
on, over and across the Project as necessary to construct the
Lots, Residences, and all other Improvements;
ii) ' The exclusive right to maintain one (1) or more
sales office (s), model complex(es), interior design and decor-
ator center (s) and parking area for employees, agents and pro-
spective buyers;
iii) The exclusive right to place reaisonable signs,
flags, banners, or other forms of advertising on any portion
of the Project owned or controlled by Declarant and/or Common
Area (specifically including the Project entry area), as
Declarant deems necessary, irrespective of size, color, shape
or materials of such items, except to the extent that the
exercise of said exclusive right conflicts with any provision
of the City's Municipal Code or other applicable governmental
regulations;
iv) A nonexclusive right to utilize the Common Area
and any unassigned open parking spaces in connection with its
program for the sale or leasing of Lots in the Project;
v) The right to install, place, replace, con-
struct, reconstruct, modify or remove any Improvement from any
Lot owned by Declarant, as Declarant may, in its sole discre-
tion (subject to applicable City approval), deem appropriate;
vi) The right to conduct any commercial activity
upon any Lot owned by Declarant which reasonably relates to
the development, marketing, leasing or sale of the Lots or
other property in the Project; and
vii) The right to utilize the Common Area in the
Project and exclude Owners and their guests so long as such
exclusion is not unreasonable, for marketing, sales and
promotional activities which relate to the leasing or sale of
the Lots or other property in the Project. The Declarant
agrees to pay any and all maintenance or repair costs associ-
ated with the use of the Common Area for marketing purposes
and to obtain a reasonable amount of liability insurance
18324.220-6024.FCM 092602 •12-
naming the Association as an additional insured during such
use of the Common Area.
Each Owner hereby grants, upon acceptance of his or her deed to his
or her Lot, an irrevocable special power of attorney to Declarant
to execute and record all documents and maps necessary to complete
development of the Project, and to allow Declarant to exercise its
rights under this Declaration.
Section 8. Non-Liability of Declarant. The purpose of
this Article is merely to describe the proposed general plan of
development for the Project. Without limiting the generality of the
foregoing, nothing in this Section or elsewhere in this Declaration
shall limit the right of Declarant to complete construction of the
Project, to alter same or to construct such additional Improvements
as Declarant shall deem advisable prior to the completion and sale
of all Lots in the Project. Declarant may assi.gn any or all of its
rights under this Declaration to any successor to all or any part
of Declarant's interest in the Project by an express written as-
signment recorded in the Office of the County Recorder.
ARTICLE III
RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE COMMON AREA
Section 1. Owners' Easements. Every Owner shall have
a nonexclusive right and easement of access and use in and to the
Common Area. Said right and easement shall be appurtenant to and
shall pass with title to every Lot, subject to the limitations set
forth in Section 2 below.
Section 2. Limitations on Owners' Easement Rights.
The rights and easements of access, use and enjoyment set forth in
Section 1 hereinabove shall be subject to the provisions of this
Declaration, including, but not limited to, the following:
(a) The right of the Association to reasonably
limit the number of guests of Owners using the Common Area;
(b) The right of the Association to establish and
enforce reasonable Rules and Regulations pertaining to the use
of the Common Area;
(c) The right of the Association, in accordance
with its Articles, By-Laws and this Declaration, to borrow
money with the assent of sixty-seven percent (67%) of the
voting power of the Association, excluding Declarant, and/or
to mortgage, pledge, deed in trust or otherwise hypothecate
18324.220-6024.FCM 092602 •13-
any or all of its.real or personal property as security for
money borrowed or debts incurred, for the purpose of improving
or repairing the Common Area and related facilities;
- (d) The right of the Association to suspend the
voting rights and rights and easements of use and enjoyment of
the Common Area of any Member, and the persons deriving such
rights and easements from any Member for any period during
which any Assessment against such Member's Lot remains unpaid
and delinquent (except such rights as are reasonably required
to access said Member's Residence); and after Notice and
Hearing, to impose monetary penalties or suspend such use
rights and easements for a period not to exceed thirty (30)
days for any violation of this Declaration or Rules and
Regulations, it being understood that any suspension for
either nonpayment of any Assessments or breach of such re-
strictions shall not constitute a waiver or discharge of the
Member's obligations to pay Assessments as provided herein;
(e) Subject to the terms and provisions of the
Article herein entitled "Mortgagee Protection," the right of
the Association to dedicate or transfer easements over all or
any part of the Common Area to any public agency, authority,
entity or utility for such purpose-s and subject to such
conditions as may be agreed to by the Owners. No such dedica-
tion or transfer shall be effective unless: (1) an instrument
approving said dedication or transfer is signed by Owners
representing sixty-seven percent (67%) of the voting power of
the Association, excluding Declarant, and recorded in the
Office of the County Recorder, and (2) a written notice of the
proposed dedication or transfer is sent to every Owner not
less than fifteen (15) days nor more than thirty (30) days in
advance; provided, however, that the dedication or transfer of
easements for utilities or for other public purposes consis-
tent with the intended use of the Common Area shall not
require the prior approval of the Members of the Association;
(f) The right of Declarant (and its sales agents,
representatives, customers and prospective purchasers) to the
nonexclusive use of the Common Area without charge for sales,
display access and exhibit purposes related to selling,
marketing, showing and otherwise disposing of Lots in the
Project, which rights Declarant hereby reserves; provided,
however, such use shall cease upon the date that Declarant no
longer owns any Lot in Carlsbad Tract CT 00-16. In addition,
such use shall not unreasonably interfere with the rights of
enjoyment of other Owners as provided herein;
18324.220-6024.FCM 092602 -14-
(g) The right of the Association, acting by and
through its'Architectural Review Committee, to enact uniform
and reasonable architectural standards;
(h) The right of Declarant to designate additional
Common Area, pursuant to terms of the Article herein entitled
"Annexation of Additional Property";
(i) The right of the Association to perform and
exercise its duties and powers as set forth herein;
(j) Other rights of the Association, the Architec-
tural Review Committee, the Board, the Owners and Declarant
with respect to the Common Area as may be provided for in this
Declaration;
(k) The right of Declarant to grant and transfer
easements on, over and across Carlsbad Tract CT 00-16 for the
development, installation, construction and maintenance of
electric, telephone, cable television, water, gas, sanitary
sewer lines and drainage facilities, as shown on any recorded
subdivision map covering the Project, and as may be reasonably
necessary for the proper maintenance, development and convey-
ance of Lots and/or Common Area;
(1) Any limitations, restrictions or conditions
affecting the use, enjoyment or maintenance of the Common Area
imposed by Declarant or by the City, or other governmental
agency having jurisdiction to impose any such limitations,
restrictions or conditions, including, but not limited to, the
rights of the City or such other governmental agency having
jurisdiction to use their vehicles or appropriate equipment
over those portions of the Common Area designed for vehicular
movement to perform municipal functions or emergency or
essential public services; and
(m) Any limitations or restrictions on an Owner's
right to use his/her Lot so as not to interfere with any and
all street light standards, mailboxes, improvement locations,
and utility easements affecting such Owner's Lot.
Section 3. Easements for Common Fences. There is
hereby created, established and granted an easement appurtenant to
the real property in the Project for the placement of all common
fences, where such fences were originally installed by Declarant,
regardless of whether such fences are located precisely upon the
boundary separating two (2) residential Lots or a residential Lot
and Common Area. Those Owners who have a common fence which adjoins
their Lots and effectively creates the boundary line between such
Lots (including the Association and its Common Area) shall equally
18324.220-6024.FCM 092602 -15-
have the right to use such fence and each shall have the exclusive
right to the use of the interior surface of the fence facing his
Residence or Common Area. Neither Owner shall drive nails, screws,
bolts or other objects more than halfway through any common fence,
interfere with the adjacent Owner's use and enjoyment of the common
fence, or impair, in any way, the structural integrity of the
common fence. In the event that any portion of such fence, except
the interior surface of one (1) side, is damaged or injured from
any cause, other than the act or negligence of either party, it
shall be repaired or rebuilt at their joint expense.
Section 4. Delegation of Common Area Use Rights. Any
Owner who resides within the Project may delegate, in accordance
with the By-Laws, his rights of use and enjoyment to the Common
Area to the members of his immediate family and any other persons
residing within his Residence. In the event an Owner has rented or
leased his Residence, his rights of use and enjoyment to the Common
Area shall be automatically delegated to his tenants or lessees for
the duration of their tenancy, and the Owner shall forfeit any
rights of use and enjoyment to the Common Area for the duration of
such tenancy, except those rights of ingress and egress which are
reasonably necessary to carry out the appropriate duties of a
landlord. In the event of a conditional sales contract, the seller
under the contract shall be deemed to delegate his rights of use
and enjoyment to the Common Area to the purchaser under the
contract.
Section 5. Easements for Public Services and
Pedestrian Access. In addition to the foregoing easements over the
Common Area, there is hereby created, established and granted
easements for public access and/or services, including, but not
limited to, the right of police, fire, ambulance and other public
services to enter upon any part of the Project for purposes of
serving the health and welfare of all Owners in the Project and
members of the public to utilize the pedestrian path and internal
sidewalks leading to adjoining areas to the north of the Project,
a railroad station, an open space trail that runs adjacent to the
railroad, and pedestrian walkways outside the Project. Except
during construction of the Project, there shall be unrestricted
public pedestrian access through the Project to provide public
access between the Avenida Encinas pedestrian parkway and the
mixed-use pedestrian link/corridors. In addition, there shall be
unrestricted public pedestrian access through the Project to link
the Avenida Encinas public access parkway with the railroad
pedestrian open space corridor.
Section 6. Easements for Community Cable Television,
Telecommunication Systems and Alarm System Cabling. There are
hereby reserved for the benefit of Declarant, and its successors
and assigns, nonexclusive easements for ingress, egress and access
18324.220-6024.FCM 092602 •16-
on, over, under and across the Project for purposes of installa-
tion, operation, • maintenance, repair, inspection, replacement and
removal of transmission lines and other facilities and equipment
for (a) a community antenna television system, (b) telecommunica-
tions and fiber optics systems, and (c) alarm system cabling. Such
easements shall be freely transferable to any other person(s) or
entity (ies) for the purpose of providing any or all of such
services. The exercise of all rights reserved hereunder shall not
unreasonably interfere with the Owners' use and enjoyment of the
Proj ect.
Section 7. Easements Over Sidewalks. Declarant hereby
covenants for itself, its successors and assigns, that each and
every Owner, his tenants and invitees shall have appurtenant nonex-
clusive reciprocal easements on, over and across all sidewalks, if
any, located on portions of Lots immediately adjacent to the
streets within the Project for pedestrian access, use and enjoy-
ment .
Section 8. Easements for Unintentional Encroachments.
Declarant reserves for its benefit, and the benefit of the Owners,
and hereby creates, establishes and grants a nonexclusive easement
appurtenant to each Lot on, over and across those portions of any
adjacent Lot (whether a residential Lot or a Common Area Lot), not
to exceed one foot (1'), for the encroachment by any foundations
and footings, and not to exceed three feet (3') for eaves or other
overhangs, wing walls and/or chimneys existing as of the date that
escrow is initially closed for the sale of said Lot from Declarant
to an Owner. Additionally, there is hereby created, established and
granted nonexclusive easements appurtenant to any Lot on, over and
across those portions of any such adjacent Lot (whether a residen-
tial Lot or a Common Area Lot), not to exceed one foot (1'), for
the encroachment by any Improvement resulting from any subsequent
settling or shifting of any Improvements. All of the aforesaid
encroachments shall be measured at the point of encroachment along
a line which is perpendicular to the common property line between
the affected Lots. Declarant further reserves reciprocal easements
for utility services and repairs, replacement, and maintenance of
the same over the Lots for the benefit of the Owners. Use of the
foregoing easements may not unreasonably interfere with each
Owner's use and enjoyment of the Owner's respective Lot.
Section 9. Easements for Utilities. The rights and
duties of the Owners of Lots within the Project with respect to
sanitary sewer, water, electricity, gas, television cable (or CATV
service) and telephone lines, and other facilities, shall be
governed by the following:
(a) Each respective utility company shall maintain
all utility facilities and connections on the Project owned by
18324.220-6024.FCM 092602 •17-
such utility company; provided, however, that if any company
shall fail to do so, it shall be the obligation of each Owner
to maintain those facilities and connections located upon such
Owner's Lot or provide service to only such Owner's Lot and it
shall be the obligation of the Association to maintain those
facilities and connections located upon and which provide
service to the Common Area;
(b) Wherever sanitary sewer, water or gas connec-
tions, television cables, electricity or telephone lines are
installed within the Project and it becomes necessary to gain'
access to said connections, cables and/or lines through a Lot
owned by someone other than the Owner of the Lot served by
said connections, cables and/or lines, the Owner of the Lot
served by said connections, cables and/or lines shall have the
right, and is hereby granted an easement to the full extent
necessary therefor, to enter upon such other Lot or to have
the utility companies enter upon such other Lot to repair,
replace and generally maintain said connections, cables and/or
lines. In the event that any damage shall be proximately
caused by such entry, said Owner or utility company shall
repair the same at its respective expense;
(c) Whenever sanitary sewer, water or gas connec-
tions, television cables, electricity or telephone lines are
installed within the Project, and said connections, cables
and/or lines serve more than one (1) Lot, the Owner of each
Lot served by said connections, cables and/or lines shall be
entitled to the full use and enjoyment of such portions of
same as service his Lot;
(d) In the event of a dispute between Owners re-
specting the repair or rebuilding of the aforesaid connec-
tions, cables and/or lines, or the sharing of the cost
thereof, upon written request of one (1) of such Owners ad-
dressed to the Association, the matter shall be submitted to
the Board who shall decide the dispute, and the decision of
the Board shall be final and conclusive on the Owners;
(e) Easements over the Project for the installation
and maintenance of electric and telephone lines, water, gas,
drainage and sanitary sewer connections and facilities, and
television antenna cables and facilities, all as shown on the
recorded map of the Project and as may be hereafter required
or needed to service the Project, are hereby reserved by
Declarant, together with the right to grant and transfer the
same;
(f) Each Lot granted to an Owner is subject to all
easements for utility installation and maintenance, storm
18324.220-6024.FCM 092602 •18-
drains and other purposes, as more particularly shown on the
recorded subdivision map(s) for the Project. Any installation
or construction of landscaping or structures within said
easement areas may be done only in accordance with the terms,
conditions and provisions of said easements; and
(g) As required by the City, all utility seirvices
shall be installed and maintained underground.
Section 10. Easements for Maintenance of the Common
Area. There is hereby created, established and granted a nonexclu-
sive easement in favor of the Association for ingress, egress and
access on, over and across those portions of the Lots in the
Project as reasonably required by the Association to perform its
maintenance obligations for the Project and Common Area, as more
particularly set forth in the Articles herein entitled "Powers and
Duties of the Association" and "Repair and Maintenance." In the
event it becomes necessary for the Association to enter upon any
Lot for purposes of: (a) maintaining the Project or the Common
Area; or (b) bringing an Owner and/or his Lot into compliance with
this Declaration in accordance with the provisions set forth
herein, the Association, and its duly authorized agents and em-
ployees, shall have the right, after reasonable notice to the Owner
and at a reasonable hour of the day, to enter upon such Owner's Lot
for the performance of such work. Such entry shall be made with as
little inconvenience to the Owner as is practicable, and in the
event that any damage shall be proximately caused by such entry,
the Association shall repair the same at its expense. Notwithstand-
ing the foregoing, no notice of entry is required in the event of
an emergency.
Section 11. Easements for Clustered Mailboxes/Light
Standards. In order to comply with the various requirements of the
City and the United States Postal Service, kiosk mailboxes and/or
light standards may be installed on certain Lots within the
Project. Easements are hereby created, granted and established on
and over the affected Lots, if any, in favor of all Owners in the
Project and the United States Postal Service for delivery and
deposit of mail, and the utility company, if any, and the Associa-
tion, for maintenance of the light standards.
Section 12. Easements for Drainage. There are hereby
created, granted and reserved over each Lot in the Project ease-
ments for drainage according to the patterns for drainage created
by the grading plans for the Project approved by the City, as well
as according to the actual, natural and existing patterns for
drainage (including, but not limited to, easements to accommodate
any "cross-lot drainage," whereby water runoff from one [1] or more
contiguous Lots [or Common Area] drains across another Owner's
Lot). Each Owner covenants and agrees that he shall not obstruct or
18324.220-6024.FCM 092602 •19-
otherwise interfere with said drainage patterns of waters from
adjacent Lots in"the Project over his Lot, or, in the alternative,
that in the event it is necessary and essential to alter said
drainage pattern for the protection and use of his Lot, he will
make adequate provisions for proper drainage and obtain all
appropriate approvals from the respective governmental authorities,
as applicable, and the Architectural Review Committee.
Section 13. Easement for Area Drains. Declarant here-.
by establishes, grants, and reserves nonexclusive reciprocal
easements over the Lots and Common Area for drainage purposes to
accommodate the drainage system, including, but not limited to area
drains and pipes, originally installed by Declarant pursuant to the
precise grading and construction plans. The Lot Owner served by
said drainage system shall be responsible to maintain and preserve
said system in an operating condition to ensure proper drainage on,
over, under, across and through the yard area of his or her Lot in
accordance with the established drainage patterns created by the
precise grading plans for the Project, and shall bear the cost of
the maintenance, repair or replacement associated with the drainage
system which affects his or her Lot. No Owner shall alter or remove
the drainage system (e.g., adding a curb core, etc.) or modify the
grade of the yard area in his or her Lot without review and
approval of the City where applicable, and without the express
written consent of the Architectural Review Committee. In the
event any portion of the drainage system is damaged, destroyed or
not properly maintained, any Lot Owner affected by such drainage
system may cause said repair, restoration or maintenance work to be
completed and shall be entitled to recover the appropriate expenses
from the Lot Owner responsible for such damage, destruction or need
for maintenance. Notwithstanding the foregoing, if any portion of
the drainage system is damaged or destroyed as a proximate result
of any act or omission of any Owner, or any member of his family,
guests, tenants, lessees and/or invitees (without regard to fault),
such Owner shall immediately repair and/or rebuild such drainage
system, and shall bear all of the costs thereof, including any cost
and/or expense related to personal injury or property damage to any
person. Residence, or Lot in the Project.
Section 14. Easements for Construction and Sales. De-
clarant hereby expressly reserves for itself, for the benefit of
its agents, employees and contractors, and for the benefit of its
successors and assigns, for a period of five (5) years from the
recordation of this Declaration, or until all Lots in Carlsbad
Tract CT 00-16 are initially sold (and escrows closed), whichever
occurs first, nonexclusive easements for access, ingress and egress
in, on, over, and across Carlsbad Tract CT 00-16 as necessary to
construct the Improvements, and further reserves the exclusive
right to carry on normal sales activity, including the operation of
a models complex and sales office, and the display of promotional
18324.220-6024.FCM 092602 •20-
signs and exhibits in connection with the sale or lease of Lots in
the Project.
Section 15. Reservation of Construction Rights by De-
clarant . In order that the Project be completed and established as
a planned residential community, nothing in this Declaration shall
limit the right of Declarant to: (a) complete construction of any
Improvements in the Project; (b) redesign or otherwise modify the
Improvements owned by Declarant; (c) construct such additional
Improvements on any portion of the Project owned by Declarant; or
(d) otherwise control all aspects of constructing the Project or
selling or leasing of Lots in the Project. Furthermore, nothing in
this Declaration shall limit the right of Declarant to establish
additional licenses, easements and rights-of-way in favor of
Declarant, utility companies or others as may, from time to time,
be reasonably necessary for the development of the Project. The
foregoing rights established and reserved by Declarant shall be
subject only to the applicable regulations and requirements of the
City and the DRE. The foregoing rights of Declarant may be
assigned to any successor to all or part of Declarant's interest in
the Property and Annexation Property by an express assignment re-
corded with the County Recorder.
Section 16. Title to the Common Area.
(a) Transfer of Title to Common Area. Declarant
hereby covenants, for itself and its successors and assigns,
that it will convey to the Association fee simple title to, or
a nonexclusive easement in, as appropriate, the Common Area,
free and clear of all liens and encumbrances (i.e., if the
Common Area title being conveyed is fee simple) , subject to
the Protective Covenants set forth in this Declaration or
which are of record at the time of the conveyance. Declarant
will similarly convey to the Association, from time to time,
in fee simple or by easement, any Common Area located in the
Annexation Property which is designated in this Declaration or
in any Notice of Annexation for conveyance to the Association.
(b) Completion of Common Area. In the event that
Improvements proposed to be constructed on any portion of the
Common Area so annexed to the Project have not been completed
prior to the first close of escrow for a Lot in the property
being annexed, as evidenced by a "Notice of Completion"
recorded, in the Office of the County Recorder, then the
completion of such Improvements shall be assured in accordance
with Section 11018.5 of the California Business and Profes-
sions Code, or any similar statute hereafter enacted.
(c) Commencement of Association Responsibilities.
Except as may otherwise be provided herein and/or in the grant
18324.220-6024.FCM 092602 -21-
deed conveying Common Area, the Association's responsibility
to maintain"the Common Area conveyed to the Association shall
commence concurrently with the le"vy of assessments by the
Association for maintenance of such Common Area but not later
than the first day of the first month following the first
close of escrow for the sale of a Lot to a bona fide purchaser
for the Phase which includes such Common Area. The Associa-
tion shall not interfere with the performance of any warranty
or other contractual maintenance obligations which the
contractor or subcontractors of Declarant may be bound to
perform. Notwithstanding the foregoing, maintenance performed
by such contractors and subcontractors of Declarant shall not
serve to postpone the commencement of Regular Assessments
pursuant to this Declaration, nor entitle an Owner to claim
any offset or reduction in the amount of such Regular Assess-
ments .
(d) Character of Improvements to Common Area. The
nature, design, quality and quantity of all Improvements to
the Common Area shall be determined by Declarant, and subject
to City review and approval, if required. The Association
shall be obligated to accept title to the Common Area, as
appropriate, and undertake all maintenance responsibilities
for the Common Area when title is conveyed and/or maintenance
responsibilities are tendered by Declarant to the Association,
pursuant to Subparagraphs (a) and (c) above.
(e) Formation of Landscape Maintenance District.
Notwithstanding any provision contained herein to the con-
trary, the Board shall have the power and authority to convey
the Common Area, or any portion thereof, to the City upon
request of the City to include the Common Area, or any such
portion, in a landscape maintenance district and/or delegate
its maintenance obligations to the City or to such landscape
maintenance district. Each Owner of a Lot shall pay all
assessments, special taxes and other charges levied against
such Lot in connection with any such landscape maintenance '
district. Each Owner of a Lot in the Project, by acceptance of
a deed from Declarant for such Lot, agrees to refrain from
taking any action which would in any way interfere with the
formation of or annexation into a landscape maintenance
district, or other special district or community facilities
district, the operation of either district, or decisions made
or actions taken by the City with respect to such districts,
including, without limitation, the timing of commencement,
amount, spreading or use of the assessments, special taxes or
other charges collected by such districts.
(f) Disputes. In the event that a dispute arises
between Declarant and the Association with respect to the
18324.220-6024.FCM 092602 •22-
nature, design, quality or quantity of the Improvements, or
the acceptance of maintenance responsibilities therefor,
resolution of the dispute shall be submitted to arbitration in
accordance with the applicable provisions below.
Section 17. Reservation of Common Area Easements.
Declarant hereby reserves the right to grant nonexclusive easements
over the Common Area in favor of Owners of any Annexation Property
which is annexed to the Project pursuant to this Declaration, and,
upon the recordation of a Notice of Annexation affecting the
Annexation Property, the Owners described in this Declaration shall
automatically obtain nonexclusive easements over all Common Area
which is a part of said Annexation Property.
ARTICLE IV
THE ASSOCIATION
Section 1. Membership. Every person or entity who or
which is an Owner as defined hereinabove shall be a Member of the
Association. The foregoing, however, is not intended to include
persons or entities who hold an interest in a Lot in the Project
merely as security for the performance of an obligation. All
memberships in the Association shall be appurtenant to the Lot
owned by each Member, and memberships in the Association shall not
be assignable, except to the person or entity to whom the title to
the Lot has been transferred, as provided in Section 6 hereinbelow.
Ownership of such Lot shall be the sole qualification for member-
ship in the Association. The memberships in the Association shall
not be transferred, pledged or alienated in any way, except upon
the transfer of title to said Lot, and then only to the purchaser
or Mortgagee of such Lot. Any attempt to make a prohibited member-
ship transfer shall be void and will not be reflected in the books
of the Association.
Section 2. Voting Rights. The Association shall have
two (2) classes of voting membership, as follows:
(a) Class A. Class A Members shall be all Owners,
with the exception of the Declarant until such time as the
Class B Membership terminates, and shall be entitled to one
(1) vote for each Lot owned. When more than one (1) person
holds an interest in any Lot, all such persons shall be Mem-
bers. The vote for such Lot shall be exercised as they de-
termine among themselves, but in no event shall more than one
(1) vote be cast with respect to any Lot.
(b) Class B. The Class B Member shall be the
Declarant and shall be entitled to three (3) votes for each
18324.220-6024.FCM 092602 •23-
Lot owned in the Project upon which Declarant is then paying
the appropriate monthly Assessments provided for hereinbelow.
The Class B membership shall cease and be converted to Class
A membership upon the happening of either of the following
events, whichever occurs earlier:
(1) The second anniversary of the first close
of escrow for the sale of a Lot pursuant to the original
issuance by the DRE of the most recently issued Final
Subdivision Public Report for a Phase of the Project;
(2) The fourth anniversary of the first close
of an escrow for the sale of a Lot pursuant to the
original issuance by the DRE of a Final Subdivision
Public Report for Phase 1; or
(3) December 31, 2 006.
Any action by the Association which must have the ap-
proval of the membership of the Association before being under-
taken, shall require the vote or written assent of both a majority
of the Class B membership as well as a majority of the Class A
membership, so long as there are two (2) outstanding classes of
membership, unless a specific provision of this Declaration or the
By-Laws or Articles of the Association requires (i) the approval of
a greater percentage of the voting membership, or (ii) a vote by
Members other than Declarant, or (iii) a specific approval
percentage of all the members. Notwithstanding the foregoing, any
action by the Association pursuant to the Article contained herein
entitled "Enforcement of Bonded Obligations" shall only require a
majority of the voting power of the Owners, other than Declarant.
Section 3. Vesting of Voting Rights. The voting
rights attributable to any given Lot in the Project as provided for
herein shall not vest until the Assessments provided for herein-
below have been levied by the Association against said Lot.
Section 4. Adiustment of Voting Rights. The voting
rights in the Association shall be adjusted on the first day of the
month immediately following the first close of an escrow for the
sale of a Lot in a subsequent Phase of the Project.
Section 5. Suspension of Voting Rights. The Board
shall have the authority to suspend the voting rights of any Member
to vote at any meeting of the Members for any period during which
such Owner is delinquent in the payment of any Assessment,
regardless of type, it being understood that any suspension for
nonpayment of any Assessment shall not constitute a waiver or
discharge of the Member's obligation to pay the Assessments pro-
vided for in this Declaration.
18324.220-6024.FCM 092602 -24-
Section 6. Transfer. The Association membership held
by any Owner of a Lot shall not be transferred, pledged or alien-
ated in any way, except as incidental to the sale of such Lot, and
the membership shall be automatically transferred upon the sale of
such Lot. In the event of such sale, the Association membership may
only be transferred, pledged or alienated to the bona fide
purchaser or purchasers of the Lot, or to the Mortgagee (or third
party purchaser) of such Lot upon a foreclosure sale, deed in lieu
or other remedy set forth in the mortgage. Any attempt to make a
prohibited transfer is void and will not be reflected upon the
books and records of the Association. The Association may le"vy a
reasonable transfer fee against new Owners and their Lots (which
fee shall be a Compliance Assessment chargeable to such new Owner)
to reimburse the Association for the actual administrative cost of
transferring the memberships to the new Owners on the records of
the Association.
Section 7. Proxies. Votes may be cast in person or by
proxy. Proxies must be filed with the Secretary before the ap-
pointed time for each meeting. Every proxy shall be revocable and
shall automatically terminate upon the earliest of the following:
(a) the conveyance by the Owner of his Lot; (b) the date of auto-
matic termination, if any, specified in the proxy, but not to ex-
ceed three (3) years from the date of issuance of the proxy; or (c)
eleven (11) months from the date of issuance of the proxy, if no
automatic termination date is specified in the proxy. Any form of
proxy or written ballot distributed to the membership of the
Association shall afford an Owner the opportunity to specify a
choice between approval and disapproval of each matter or group of
matters to be acted upon at the meeting for which said proxy was
distributed, except it shall not be mandatory that a candidate for
election to the Board be named in the proxy or written ballot. The
proxy or written ballot shall provide that, where the Owner
specifies a choice, the vote shall be cast in accordance with that
choice. In addition, the proxy shall also identify the person or
persons authorized to exercise the proxy and the length of time it
shall be valid.
Section 8. Record Dates. For the purposes of
determining Members entitled to notice of any meeting, to vote or
to exercise any other rights with respect to any lawful action, the
Board may fix in advance record dates as provided in the By-Laws.
Section 9. Notices. All notices and demands shall be
given in writing by personal delivery, express mail, or by
certified mail, postage prepaid, and return receipt requested.
Notices shall be considered given on the earlier of (a) receipt, if
personally delivered or express mailed to the addressee, or to a
partner or an officer of the addressee if the addressee is a
partnership or corporation, or (b) forty-eight (48) hours following
18324.220-6024.FCM 092602 •25-
deposit in the United States mail, or (c) verified delivery by
facsimile, provided any such "fax" or facsimile is followed by
delivery in accordance with (a) or (b) herein. Notices shall be
addressed as determined by the Board and shall continue until
changed by the Board in the form of a written notice.
ARTICLE V
POWERS AND DUTIES OF THE ASSOCIATION
Section 1. Management Body. The Association is hereby
designated as the management body of the Project. The Members of
the Association shall be the Owners in the Project, as provided
herein, and the affairs of the Association shall be managed by a
Board of Directors, as more particularly set forth in the By-Laws,.
The initial Directors shall be appointed by the Declarant.
,Thereafter, the Board shall be elected as provided in said By-Laws.
Section 2. Powers. The Board, for and on behalf of
the Association, shall have the right and power to do all things
necessary to conduct, manage and control the affairs and business
of the Association. Subject to the provisions of the Articles, the
By-Laws and this Declaration, the Board shall have all general
powers authorized under the California Corporations Code for non-
profit, mutual benefit corporations, and shall have, but not be
limited to, the following specific powers:
(a) Enforce the provisions of this Declaration
(including but not limited to the ability to record a notice
of noncompliance or violation), including any amendments
thereto, and all contracts or any agreements to which the
Association is a party.
(b) Acquire title, manage, maintain, repair and
replace all Common Area and Improvements located thereon,
including all personal property, in a neat, clean, safe and
attractive condition at all times, and to pay all utilities,
gardening and other necessary services for the Common Area,
all as more specifically set forth in the Article herein
entitled "Repair and Maintenance".
(c) Maintain fire, casualty, liability and worker's
compensation coverage, fidelity bond coverage and other
insurance coverage pursuant to the terms of that Article
herein entitled "Insurance".
(d) Obtain, for the benefit of the Common Area, all
commonly metered water, gas and electric services, and may
18324.220-6024.FCM 092602 •26-
provide for refuse collection and cable (or CATV) television
service.
(e) Grant easements or licenses, where necessary,
for utilities and sewer facilities over, on and across the
Common Area to seirve the Project.
(f) Pay all taxes and special assessments which
would be a lien upon the entire Project or the Common Area,
and to discharge any lien or encumbrance levied against the
entire Project or the Common Area.
(g) Levy and collect Assessments on the Owners of
all Lots in the Project in which Assessments have commenced,
and enforce payment of such Assessments in accordance with the
terms and provisions set forth in the Article herein entitled
"Effect of Nonpayment of Assessments: Remedies of the Associa-
tion".
(h) Pay for reconstruction of any portion of the
Common Area damaged dr destroyed.
(i) Employ and retain a professional manager and/or
management company to perform all or any portion of the duties
and responsibilities of the Board and engage such other
personnel (including attorneys, budget preparers, and accoun-
tants) as necessary for the operation of the Project and
administration of the Association.
(j) Enter into any Lot when necessary in connection
with maintenance or construction for which the Association is
responsible.
(k) Contract with Declarant, its successors or
assigns, for the purpose of entry into a maintenance and/or
subsidy agreement, made by and between Declarant and the
Association, for the purpose of temporarily reducing and/or
abating the financial obligations of Owners in the Project.
(1) Purchase such other labor, services, materials,
supplies and the like, as needed for the proper maintenance of
the Common Area and/or proper operation of the Association.
(m) Adopt reasonable Rules and Regulations con-
cerning the maintenance, improvement, use and/or occupancy of
any portion of the Project (including, without limitation.
Rules and Regulations concerning the leasing and use of the
recreational vehicle storage lot within the Project).
18324.220-6024.FCM 092602 •27-
(n) Grant exclusive easements to Owners over por-
tions of the Common Area.
(o) Execute lot line adjustments (and corresponding
deeds), enter into a maintenance and/or other agreement with
Declarant or a third party, grant fee title to or easements
over the Common Area to Declarant or a third party, and/or
receive fee title to or an easement over real property owned
by Declarant or a third party as reasonably necessary due to
those conditions in the field where it is not readily apparent
where Lot lines are located and the respective party's
maintenance responsibilities commence and end, and such
adjustments, deeds and/or agreements will promote a clearly
defined and uniform maintenance plan by the respective
parties.
(p) Grant easements or licenses to any public
agency, governmental entity or utility, where necessary, for
utilities and sewer facilities on, over and across the Common
Area to serve the Project for purposes consistent with the use
and enjoyment of the Common Area.
(q) Subject to compliance with Section 1354 of the
California Civil Qode, as same may be amended from time to
time, to institute, defend, settle, intervene, or participate
on behalf of the Association any dispute resolution proceeding
in matters pertaining to (i) enforcement of the Declaration,
Rules and Regulations and By-Laws; (ii) damage to the Common
Area; and (iii) damage to the Lots which arises out of, or is
integrally related to, damage to the Common Area that the
Association is obligated to maintain or repair.
(r) Execute all necessary documents in order to
effectuate the Limited Warranty, including, without limita-
tion, the "Limited Warranty Validation Form".
(s) Perform any and all other acts and things that
a nonprofit, mutual benefit corporation organized under the
laws of the State of California is empowered to do, which may
be necessary, convenient or appropriate in the administration
of its affairs for the specific purposes of meeting its duties
as set forth in this Declaration.
Section 3. Duties. Notwithstanding the Association's
obligations, as more specifically set forth in the Article herein
entitled "Repair and Maintenance," the Board shall perform and
execute the following duties for and on behalf of the Association:
(a) Own, maintain and operate the Common Area, for
the common use and benefit of all Owners in the Project;
18324.220-6024.FCM 092602 •28-
(b) Provide, water, sewer, gas, electricity, gar-
bage and trash collection, and other necessary utility ser-
vices for the Common Area and, if not separately metered or
provided, for the Lots;
(c) Provide insurance for the Association and its
Members in accordance with the provisions of the Article
hereinbelow entitled "Insurance" and distribute any notices
thereof required by law, as same may be amended, from time to
t ime;
(d) Accept, as part of the Project, all property
included in or annexed to the Project, in accordance with the
terms and provisions of this Declaration, and to accept all
Owners as Members of the Association. In addition, the
Association shall accept all Common Area, conveyed, leased or
otherwise transferred to it, if any, by Declarant, its
successors or assigns, or appropriate governmental agency;
(e) ' Maintain and repair all portions of the Common
Area in a neat, clean, safe, attractive, sanitary and orderly
condition at all times and paint, maintain, repair and replace
all of the Common Area Improvements so as to keep same in a-
neat, clean, safe, attractive, sanitary and orderly condition
at all times (e.g., in a scheme and condition as initially
installed by Declarant and approved by the City). Without
limiting the generality of the foregoing, the Association
shall be responsible for maintaining: (1) any private streets
and paseos, open space areas, recreation/open space areas and
all Improvements thereon, upon the conveyance of such proper-
ties to the Association; (2) the recreational vehicle storage
lot within the Project; (3) those portions of the pedestrian
trails depicted on Exhibit "C" hereto (notwithstanding the
depiction of trails through multiple phases of development for
the Project, initially the Owners may only use those portions
of the trails completed and applicable to their respective DRE
Phase of development. Such use will expand as other phases of
development are annexed into the Project. Likewise, the
Association will only have the maintenance obligation for
those portions of the trails associated with that certain DRE
Phase of development where assessments have commenced against
the Lots in such Phase), over which the City has been granted
an easement for use by the general public; (4) one bus stop
(if required to be maintained by the Association in the
Project conditions of approval) and trash receptacle at the
one bus stop (see Exhibit "H" hereto); (5) all Project entry
gates and monumentation; (6) all mail kiosks and light
standards; (7) all private street lights; (8) the private
sewer pump station and private on-site sewer lines (excluding
laterals which only serve individual Lots) - only if such
18324.220-6024.FCM 092602 •29-
sewer pump station servicing the Project is not owned and
maintained by the City or other applicable entity other than
the Association - storm drains, drainage channels, debris
basins and/or other similar drainage facilities (including,
without limitation, all catch basin " filters, oil/water
separators, and/or other media filtration devices) originally
installed by Declarant on. storm water inlets within the
Project; (9) the structural integrity, exterior and top
portions of all Project perimeter walls, fences, sound walls,
and retaining walls depicted on Exhibit "D" hereto (notwith-
standing the depiction of multiple phases, the Association
will only have the maintenance obligation for those portions
of the fences, walls, sound walls, and retaining walls
associated with that certain DRE Phase of development where
assessments have commenced against the Lots in such Phase) ;
and (10) all related systems in a condition comparable to the
condition initially approved by the City. In the event any
maintenance or repairs to the Common Area are required due to
the willful or negligent acts or omissions of an Owner or
Owners, the Association shall le-vy the cost of such mainte-
nance and repair as a Compliance Assessment against the
responsible Owner(s);
(f) In addition to all other provisions set forth
herein respecting the maintenance of the Common Area, maintain
all private streets, until such time, if ever, that the City
accepts the public dedications thereof, private sewers, storm
drains (unless public), and Common Area lighting facilities,
in a condition comparable to the condition initially approved
by the City;
(g) Pay all real and personal property taxes and
Assessments which the Association is required to pay for
pursuant to the terms and provisions of this Declaration or by
law, unless separately assessed to Owners; provided, however,
that it shall be the obligation of each Owner to pay his
respective share of the tax assessment levied on the Project
prior to separate assessments by the Tax Assessor pursuant to
the applicable provisions of the California Revenue and
Taxation Code;
(h) Contract for any other material, supplies,
furniture, labor, services, maintenance, repairs, structural
alterations and insurance which the Association is required to
pay for pursuant to the terms and provisions of this Dec-
laration or by law;
(i) Cause financial statements for the Association
to be regularly prepared and copies distributed to each Member
18324.220-6024.FCM 092602 -30-
of the Association, regardless of the number of Members or the
amount of assets of the Association:
(1) A pro forma operating statement (budget)
for each fiscal year shall be distributed not less than
forty-five (45) days nor more than sixty (60) days prior
to the beginning of the fiscal year, and shall contain
the following information:
i) An itemized estimate of the Associa-
tion' s revenue and expenses, determined on an
accrual basis;
ii) A summary, printed in bold type, of
the current status of the Association's reserves,
based upon the most recent review or study conduct-
ed pursuant to California Civil Code Section 1365.5
("Study"), as may be amended, from time to time,
setting forth the following:
a) The current estimated replace-
ment costs, estimated remaining life and the
estimated useful life of the Common Area,
together with an explanation of the methods of
funding being utilized by the Association to
defray the costs of future repairs, replace-
ments or additions to the Common Area;
b) As of the end of the fiscal
year for which the Study was prepared, the
current estimate of the amount of cash re-
serves necessary to repair, replace, restore
or maintain the major Improvements to the
Common Area;
c) As of the end of the fiscal
year for which the Study was prepared, the
accumulated cash reserves actually set aside
to repair, replace, restore or maintain such
major Improvements to the Common Area; and
d) The percentage that the current
amount of accumulated cash reserves which have
been set aside is of the current estimated
amount of cash reserves which will be neces-
sary.
iii) A general statement setting forth
the procedures utilized by the Association to cal-
culate and establish reserves to defray the costs
18324.220-6024.FCM 092602 •31-
of future repairs, replacements or additions to the
Common Area Improvements; and
iv) A statement as to whether the Board
has determined or anticipates that the levy of one
(1) or more Special Assessments will be required to
repair, replace or restore any major Improvements
to the Common Area, or to provide adequate reserves
therefor.
Notwithstanding the foregoing, in lieu of
distributing the pro forma budget required hereinabove,
the Board may elect to distribute a summary of the pro
forma budget to all Members with a written notice, in at
least 10-point bold type on the front page, that the pro
forma budget is available at the business office of the
Association, or at another suitable location within the
Project, and that copies will be provided upon request
and at the expense of the Association. If any Member
requests that a copy of the pro forma budget required
herein be mailed to said Member, the Association shall
provide the copy to the Member by first-class mail at the
expense of the Association, and mailed within five (5)
days of the receipt of said request;
(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 for the first sale of
a Lot, and an operating statement for the period from the
date of the first closing to the said accounting date,
shall be distributed within sixty (60) days after the
accounting date. This operating statement shall include
a schedule of Assessments received, and receivable,
identified by the number of the Lot and the name of the
person or entity assessed;
(3) An annual report consisting of the fol-
lowing shall be distributed within one hundred twenty
(120) days after the close of the fiscal year:
i) A balance sheet as of the last day
of the Association's fiscal year;
ii) An operating (income) statement for
the fiscal year;
iii) A statement of changes in financial
position for the fiscal year; and
18324.220-6024.FCM 092602 -32-
iv) Information, if any, required to be
reported pursuant to Sections 8322 and 1365 of the
California Corporations and Civil Codes, respec-
tively, as same may be amended from time to time.
This annual report shall ordinarily be prepared by a
licensee of the California Board of Accountancy, in
accordance with generally accepted accounting principles,
for any fiscal year in which the gross income of the
Association exceeds •Seventy-Five Thousand Dollars
($75,000.00). However, if for any reason the report is
not prepared by a licensee of the California Board of
Accountancy, said report shall be accompanied by a
certificate from an authorized officer of the Association
that the statements were prepared without audit from the
books and records of the Association;
(4) A statement of the Association's policies
and practices in enforcing its remedies against Members
for nonpayment of Assessments, as set forth in the
Article herein entitled "Effect of Nonpayment of Assess-
ments: Remedies of the Association," which shall be dis-
tributed within sixty (60) days prior to the beginning of
the fiscal year; and
(5) A summary of the Association's general
liability insurance policy, earthquake and flood insur-
ance policy, if one has been issued, and liability
coverage policy for the Board, which includes statements
and information required under California Civil Code'
Section 1365 (e), as same may be amended from time to
time. Currently, such items of disclosure include the
following:
i) general liability earthquake and
flood insurance policies; (1) the name of the
insurer; (2) the type of insurance; (3) the policy
limits of the insurance; and (4) the insurance
deductibles.
The Association shall, as soon as reasonably practical,
notify its Members by first-class mail if any of the
policies described in Subparagraph (i) above have lapsed,
been canceled, and are not immediately renewed, restored
or replaced, or if there is a significant change, such as
a reduction in coverage or limits, or an increase in the
deductible for any of those policies. If the Association
receives any notice of nonrenewal of a policy described
in the subparagraph above, the Association shall immedi-
ately notify its Members if replacement coverage will not
18324.220-6024.PCM 092602 •33-
be in effect by the date the existing coverage will
lapse." To the extent the information noted above is
described within the respective insurance policies, the
Association may distribute such information to the
Members and be in compliance with the disclosure require-
ments of the referenced Civil Code Section. Notification
regarding cancellation or policy renewals must comply
with Civil Code Section 1365(e) (2), as same may be
amended from time to time. Currently, the summary
distributed pursuant to Subparagraph (i) shall contain,
in at least 10-point boldface type, the following
statement: "This summary of the Association's policies
of insurance provides only certain information, as
required by Subdivision (e) of Section 1365 of the
California Civil Code, and should not be considered a
substitute for the complete policy terms and conditions
contained in the actual policies of insurance. Any
Association Member may, upon request and provision of
reasonable notice, review the Association's insurance
policies and, upon request and payment of reasonable
duplication charges, obtain copies of those policies.
Although the Association maintains the policies of
insurance specified in this summary, the Association's
policies of insurance may not cover your property,
including personal property or real property improvements
to or around your dwelling, or personal injuries or other
losses that occur within or around your dwelling. Even
if a loss is covered, you may nevertheless be responsible
for paying all or a portion of any deductible that
applies. Association Members should consult with their
individual insurance broker or agent for appropriate
additional coverage."
(j) The Board shall review on a quarterly basis,
the following:
i) A current reconciliation of the
Association's operating accounts;
ii) A current reconciliation of amounts
collected as reserves;
iii) The current year's actual amounts
collected as reserves and expenses compared to the
current year's budget;
iv) An income and expense statement for
the Association's operating and reserve accounts;
and
18324.220-6024.FCM 092602 •34-
v) The most current account statements
prepared by the financial institutions where the
Association maintains its operating and reserve
accounts.
Withdrawal of funds from the Association's reserve
account shall require the signature of either: (i) two
(2) members of the Board; or (ii) one (1) member of the
Board and an officer of the Association who is not also
a member of its Board. As used in this Section, "reserve
account" means moneys that the Board has identified from
its annual budget for use to defray the future repair or
replacement of, or additions to, those major components
of the Common Area which the Association is obligated to
repair or replace on a periodic basis, rather than on a
regular annual basis. Except as may otherwise be allowed
pursuant to Civil Code Section 1365.5(c), the Board shall
not use any funds collected and budgeted as "reserve"
moneys for any costs and/or expenses that are not related
to repair and/or replacement costs for those elements of
the Common Area that must be repaired and/or replaced on
a periodic basis. Notwithstanding the foregoing, tempo-
rary transfer of funds may occur in compliance with Civil
Code Section 1365.5, as same may be amended from time to
time. In the event reserve funds are temporarily
transferred to pay for dispute resolution proceedings,
the Board shall comply with the disclosure and notifica-
tion requirements of Civil Code Section 1365.5(d), as
same may be amended from time to time.
(k) At least once every three (3) years, cause a
study of the reserve account requirements of the Project to be
conducted if the current replacement value of the major
components which the Association is obligated to repair,
replace, restore or maintain is equal to or greater than one-
half (1/2) of the gross Association budget for any fiscal year
of the Association. In connection with such study, the Board
shall cause to be conducted, if required by law, a visual
inspection of the accessible areas of the major components of
the Common Area which the Association is obligated to repair,
replace, restore, or maintain. The Board shall consider and
implement, as the Board determines appropriate, any necessary
adjustments to the Board's analysis of the reserve account
requirements as a result of such review. The reserve study
shall consider and include, at a minimum, the requirements set
forth in Section 1365.5(e) of the California Civil Code, as
the same shall be amended, from time to time. Upon receipt of
a written or verbal request from the City, the Board shall
make the reserve study available to the City for review;
18324.220-6024.FCM 092602 -35-
(1) Assume and pay out of the Assessments provided
for hereinbelow all costs and expenses incurred by the
Association in connection with the performance and execution
of all of the aforesaid powers and duties, and any other
powers and duties the Association may assume as provided for
in Section 4 hereinbelow;
(m) Formulate, adopt and enforce such Rules and
Regulations as it may deem proper for the operation of the
Common Area, as more particularly described herein. Notice of
adoption of any such Rules and Regulations and of any change,
amendment or repeal thereof, shall be given in writing to each
Member and shall be on file in the principal office of the
Association. In the event of any conflict between such Rules
and Regulations and this Declaration, this Declaration shall
prevail;
(n) Enforce and abide by all applicable provisions
of this Declaration, the Articles, the By-Laws,' the Limited
Warranty, all Rules and Regulations of the Association and
Architectural Review Committee, and of all other documents
pertaining to the ownership, use, management and control of
the Project;
(o) Give notices in writing to FHLMC, FNMA and
GNMA, and other lenders and investors participating in the
financing of the sale of Lots in the Project, as required
herein;
(p) Within ten (10) days of the mailing or delivery
of a written request from an Owner, provide said Owner with a
copy of this Declaration and the By-Laws and the Articles for
the Association, together with the pro forma budget., an
insurance policy summary, a true statement in writing as to
the amount of any delinquent Assessments, penalties, attor-
neys' fees and other charges therein as provided by this
Declaration or other management documents of the Board as of
the date of such request, the most recent financial statement,
the Association's current Regular and Special Assessments, and
any change in the Association's current Assessments and fees
which have been approved by the Board but have not become due
and payable as of the date the disclosure is provided pursuant
to this Section. The Board may impose a fee for providing the
foregoing, but in no event shall the fee exceed the actual
cost to prepare and reproduce the requested documents. In
addition, the Board shall make available, as required by law,
during normal working business hours, upon request under
reasonable circumstance, to any prospective purchaser of a
Lot, any Owner of a Lot, any first Mortgagee and the hold-
er (s), insurer (s) and guarantor(s) of a first Mortgage of any
18324.220-6024.FCM 092602 -36-
Lot, current copies of this Declaration, the Articles, the By-
Laws, the Rules and Regulations governing the Lot, a true
statement, in writing, setting forth the amount of the
Association's current regular and special assessments and
fees, any assessments, monetary fines and/or penalties levied
upon the Member's interest in the Project that are unpaid on
the date of the statement, and information on late charges,
interest and costs of collection which, as of the date of the
statement, are or may be made a lien upon the Member's
interest in the Project, and all of the books, the membership
register, including mailing addresses and telephone numbers,
records and financing statements of the Association;
(q) Elect the officers of the Association and fill
any vacancies on the Board, except if such vacancy is created
by the removal of a Director;
(r) Appoint the Members to the various Committees
formed by the Board (e.g., the Nominating Committee, the
Architectural Review Committee, etc.) as more particularly set
forth herein or in the By-Laws;
(s) Cause a summary of the provisions of Section
1354 of the California Civil Code, as same may be amended from
time to time, regarding alternative dispute resolution prefix-
ing requirements and which specifically reference Section
1354, to be prepared and annually distributed to each Member
of the Association. The summary shall be provided either at
the time the pro forma operating budget is distributed herein
or in the manner specified in Section 5016 of the California
Corporations Code, as same may be amended from time to time;
(t) Periodically review and revise the maintenance
guidelines, if any, as the Board may deem reasonable and
prudent to adjust to the changing needs of the Project; and
(u) Comply with the provisions of California Civil
Code Section 13 75, as same may be amended from time to time,
as provided hereinbelow.
Section 4. Discretionary Powers. The Board, at its
option, may assume, perform and execute the following powers and
duties for and on behalf of the Association:
(a) Retain the services of a manager for the
Project and provide such other personnel as the Association
deems necessary and proper to assist in the operation of the
Association and/or management of the Common Area regardless of
whether such other personnel are employed directly by the
Association or otherwise, and .enforce the Entitlements From
18324.220-6024.FCM 092602 •37-
City relating directly or indirectly to the development of the
Project;
(b) Remove or replace any Improvement that extends
into the Common Area under authority of an easement when
access to a utility line underneath such Improvement is
requested by any utility company; provided, however, that the
cost shall be assessed against the Owner of the Lot involved
as a Compliance Assessment if said Owner caused the Improve-
ment to be so placed in the Common Area without legal right to
do SO;
(c) Incur any liability or pay any costs or ex-
penses for a single Lot or Owner thereof; provided, however,
that in the event the Association does incur any such lia-
bility or pay any such costs or expenses, the amount thereof
shall be specially assessed to the Owner of such Lot as a
Compliance Assessment; provided further, however, that nothing
herein shall permit the Association to assess the Owners for
any new Improvements to the Common Area, except as otherwise
provided in this Declaration; and
(d) Subject to the limitations set forth in this
Article, contract for any other material, furniture, labor,
services, maintenance, repairs, structural alterations or
insurance, or pay any taxes or Assessments which, in the
opinion of the Board, shall be necessary or proper for the
operation of the Common Area, for the benefit of the Owners or
for the enforcement of this Declaration.
Section 5. Arbitration of Disputes. Any and all
claims, controversies, breaches or disputes (each a "Dispute")
between or among the Declarant, or any director, officer, partner,
attorney, member, employee or agent of Declarant, or any contrac-
tor, subcontractor, design professional, engineer or supplier who
provided labor, services or materials to the Project (collectively,
the "Declarant Parties"), the Association, and/or any Owner,
relating to or arising out of the Project, this Declaration or any
other agreements between the Declarant Parties, the Association,
and/or an Owner, whether such Dispute is based on contract, tort,
or statute, including, without limitation, any Dispute over (1)
breach of contract, (2) negligent or intentional misrepresentation
or fraud, (3) nondisclosure, (4) breach of any alleged duty of good
faith and fair dealing, (5) allegations of latent or patent
construction defects ("Alleged Defects"), or (6) any other matter
arising from or related to the interpretation of any term or
provision of this Declaration, or any defense going to the validity
of this Declaration, or any provision of this Declaration, shall be
resolved amicably and without the necessity of time consuming and
costly litigation through arbitration pursuant to the Federal
18324.220-6024.FCM 092602 •38-
Arbitration Act and subject to the procedures set forth in this
Section 5. Any Dispute concerning the interpretation or the
enforceability of this Section 5, including, without limitation,
its revocability or voidability for any cause, any challenges to
the enforcement or the validity of this Declaration, or this
Section 5, or the scope of arbitrable issues under this Section 5,
and any defense relating to the enforcement of this Section 5,
including, without limitation, waiver, estoppel, or laches, shall
be decided by an arbitrator in accordance with this Section 5 and
not by a court of law.
(a) Notice. Any person with an Alleged Defect claim
shall notify the Declarant in writing of the claim, which writing
(i.e., by personal or mail service as authorized by Code of Civil
Procedure Sections 415.10, 415.20, 415.21, 415.30 or 415.40 to the
party to whom the Dispute is directed) shall describe the nature of
the claim and any proposed remedy (the "Claim Notice").
(b) Right to Inspect and Right to Corrective Action.
Commencing on the date the Claim Notice is delivered and continuing
until the Dispute is resolved, the Declarant and its representa-
tives shall have the right to (i) meet with the party alleging the
Dispute at a reasonable time and place to discuss the Dispute, (ii)
enter the Project to inspect any areas that are subject to the
Dispute, and (iii) conduct inspections and testing (including
destructive or invasive testing) in a manner deemed appropriate by
the Declarant. Within a reasonable period after- receipt of the
Claim Notice, which period shall not exceed sixty (60) days, the
Declarant and the claimant shall meet at a mutually acceptable
place within or near the Project to discuss the Alleged Defect
claim. At such meeting or at such other mutually agreeable time,
the Declarant and the Declarant's representatives, as noted above,
shall have full access to the property that is subject to the
Alleged Defect claim and shall have the right to conduct inspec-
tions, testing and/or destructive or invasive testing of the same
in a manner deemed appropriate by Declarant, which rights shall
continue until such time as the Alleged Defect is resolved as set
forth herein. The parties to the Alleged Defect shall negotiate in
good faith in an attempt to resolve the claim. If the Declarant
elects to take any corrective action. Declarant and Declarant's
representatives and agents shall be provided full access to the
Project to take and complete corrective action. Nothing set forth
in this Section 5 imposes any obligation on Declarant to inspect,
repair or replace any items or Alleged Defects for which Declarant
is not otherwise obligated under applicable State and federal law
or the Limited Warranty in connection with the sale of the Lots.
(c) Binding Arbitration. In the event that a Dispute is
raised, such Dispute shall be submitted to binding Arbitration by
and pursuant to the rules of CAS in effect at the time of the
18324.220-6024.FCM 092602 •39-
initiation of the arbitration. In the event an arbitration under
this provision involves PWC, as the administrator of the Limited
Warranty, and CAS is unwilling or unable to serve as the arbitra-
tor, then PWC shall be entitled to select another reputable
arbitration service, at its sole discretion, at the time the
request for arbitration is submitted. In the event that PWC
selects an alternate arbitration service, the rules and procedures
of such arbitration service in effect at the time the request for
arbitration is submitted shall be followed.
(d) General Arbitration Provisions.
(i) Each Owner, by acceptance of a deed to a Lot,
acknowledges that this Declaration involves and concerns
interstate commerce and is governed by the provisions of the
Federal Arbitration Act (9 U.S.C. §1, et seq.) now in effect
and as the same may from time to time be amended, to the
exclusion of any different or inconsistent state or local law,
ordinance, regulation, or judicial rule. Accordingly, any and
all disputes shall be arbitrated - which arbitration shall be
mandatory and binding - pursuant to the Federal Arbitration
Act. To the extent that any state or local law, ordinance,
regulation, or judicial rule shall be inconsistent with any
provision of the rules of the arbitration service under which
the arbitration proceeding shall be conducted, the latter
rules shall govern the conduct of the proceeding.
(ii) This Section 5 shall inure to the benefit of,
and be enforceable by. Declarant's subcontractors, agents,
vendors, suppliers, design professionals, warranty administra-
tor, insurers and any other persons whom any Owner contends is
responsible for any Alleged Defect in or to the Project or
such Owner's Lot or any improvement or appurtenance thereto.
(iii) In the event any Dispute is submitted to
arbitration. Declarant agrees to post the arbitration initia-
tion fees. Notwithstanding the foregoing, the arbitrator shall
have the sole authority to reallocate such arbitration fees
and costs in the arbitrators' final award; provided, however,
each party shall bear its own attorneys' fees and costs
(including expert costs) for the arbitration.
(iv) The decision of the arbitrator shall be final
and binding. Each Owner, by acceptance of a deed to a Lot
acknowledges that an application to confirm, vacate, modify or
correct an award rendered by the arbitrator shall be filed in
any court of competent jurisdiction in the County.
(v) The participation by any party in any judicial
proceeding concerning this Section 5 or any matter arbitrable
18324.220-6024.FCM 092602 •40-
hereunder shall not be deemed a waiver of the right to enforce
this Section 5 notwithstanding any provision of law to the
contrary, and shall not be asserted or accepted as a reason to
delay, to refuse to participate in, or to refuse to enforce
this Section 5.
(vi) Except as otherwise provided by the Limited
Warranty or as required by applicable law, the administration
and arbitrator fees charged by the arbitration service shall
be borne pro rata by the parties to the arbitration; provided,
however, the administration and arbitrator fees and any other
fees and'costs of the arbitration shall ultimately be borne as
determined by the arbitrator.
(vii) The arbitrator appointed to serve shall be
a neutral and impartial individual.
(viii) The venue of the arbitration shall be in the
County unless the parties to the arbitration agree in writing
to another location.
(ix) If any provision of this Section 5 shall be
determined to be unenforceable or to have been waived, the
remaining provisions shall be deemed to be severable therefrom
and enforceable according to their terms.
(x) Each Owner, by acceptance of a deed to a Lot,
agrees to have any Dispute decided by neutral arbitration in
accordance with the Federal Arbitration Act and the California
Arbitration Act, to the extent the California Arbitration Act
is consistent with the Federal Arbitration Act, and that each
Owner and Declarant are giving up any rights each Owner and
Declarant might possess to have the dispute litigated in a
court or jury trial. Each Owner and Declarant are giving up
their respective judicial rights to discovery and appeal,
unless those rights are specifically included in this Section
5. If Declarant or any Owner refuses to submit to arbitra-
tion, such Owner or Declarant may be compelled to arbitrate
under the Federal Arbitration Act and the California Arbitra-
tion Act, to the extent the California Arbitration Act is
consistent with the Federal Arbitration Act.
(xi) In the event the foregoing arbitration provi-
sion is held not to apply or is held invalid, void or unen-
forceable in its entirety for any reason, each Owner, by
acceptance of a deed to a Lot, agrees that all Disputes shall
be tried before a judge in a court of competent jurisdiction
without a jury. The judge in such court of competent juris-
diction shall have the power to grant all legal and equitable
remedies and award compensatory damages. Each Owner, by
18324.220-6024.FCM 092602 -41-
acceptance of a deed to a Lot, hereby waives and covenants not
to assert any constitutional right to trial by jury of any
Disputes, including, but not limited to. Disputes relating to
construction defects, misrepresentation or Declarant's failure
to disclose material facts.
DECLARANT, THE ASSOCIATION AND EACH OWNER SHALL USE THE PROCEDURES
ESTABLISHED IN THIS SECTION TO RESOLVE ALL DISPUTES AND SHALL BE
DEEMED TO WAIVE THEIR RIGHTS TO RESOLVE DISPUTES IN ANY OTHER
MANNER. PURSUANT TO THIS SECTION, DECLARANT, THE ASSOCIATION, AND
EACH OWNER ARE GIVING UP THEIR RIGHT TO HAVE DISPUTES TRIED BEFORE
A JURY, PURSUANT TO THE FEDERAL ARBITRATION ACT. THIS SECTION MAY
NOT BE AMENDED WITHOUT DECLARANT'S PRIOR WRITTEN CONSENT.
(e) Inspection Easements. The Declarant reserves
easements to enter any Lot, including the interior of the
residence and the yard, to inspect those areas and to conduct
destructive testing referred to in California CIVIL CODE §
1375(d). However, the Declarant shall notify the Owner of the
Lot of at least three (3) alternative dates and times when
such inspection can take place (the earliest of which shall
not be less than ten (10) days after the notification is
given) and the Declarant shall give the Owner the opportunity
to specify which date and time is acceptable to the Owner.
Should the Owner not respond affirmatively with respect to one
of the dates and times within five (5) days, then the Declar-
ant may decide which of the dates and times the inspection and
testing shall take place and so notify the Owner. Alterna-
tively, the Declarant may seek a judicial order allowing such
inspection and testing to take .place. Declarant shall be
entitled to its reasonably incurred attorneys' fees and be
deemed the "prevailing party" should such a court order be
sought and obtained. Declarant shall be obligated to fully
repair any damage caused by any such destructive testing.
(f) Miscellaneous. Any and all communications by
and between the parties, whether written or oral, which are
delivered by the parties or their attorneys or other represen-
tatives in an effort to settle the matter shall be considered
communications undertaken in the course of effecting a
settlement or compromise, as such shall not be admissible as
an admission on the part of any party or any representative or
agent of that party to be utilized for any such purpose in any
action or proceeding.
Nothing herein shall be considered to reduce or
extend any applicable statute of limitation. If at any time
an action would be barred by a statute of limitation if not
filed within sixty (60) days, then such action may be filed
notwithstanding any other provision of this Section 5.
18324.220-6024.FCM 092602 -42-
Section 6. Repair of Willful Damage to Common Area.
Notwithstanding the Association's duty to maintain the Common Area,
in the event that the maintenance, repair or replacement of any
element of such Areas becomes necessary due to the willful or
negligent acts or omissions of any Owner,, his family, guests or
invitees, after prior Notice and Hearing, the Board shall assess
the cost of such maintenance, repair and/or replacement as a
Compliance Assessment against the Lot owned by such Owner.
Section 7. Delegations of Duties. In the event that
the Association shall delegate any or all of its duties, powers or
functions to any person, corporation or firm to act as manager,
neither the Association nor the members of its Board shall be
liable for any omission or improper exercise by the manager of any
such duty, power or function so delegated.
Section 8. Right of Entry for Emergency. The Board,
any person authorized by the Board, Declarant (so long as it owns
an interest in the Project), or any Owner may enter any Lot in the
event of any emergency involving illness or potential danger to
life or property. Such entry shall be made with as little inconve-
nience to the Owner as is practicable, and in the event that any
damage shall be proximately caused by or result from said entry,
the Association and/or Owner shall repair the same at its expense.
Section 9. Right of Entry for Repairs. Except as
otherwise provided herein, the Board, or any person authorized by
the Board, shall have the right to enter, upon reasonable notice,
any Lot to effect necessary repairs which the Owner has failed to
perform or which are necessary in connection with the repairs to
the Common Area or an adjoining Lot. Such entry shall be made with
as little inconvenience to the Owner as is practicable, and in the
event that any damage shall be proximately caused by or result from
said entry, the Association shall repair the same at its expense.
Section 10. Limitations on Board Action. The Board
shall be prohibited from taking any of the following actions,
except with the vote or written assent of a majority of the voting
power of the Association and a majority of the votes residing in
Members, other than the Declarant:
(a) Entering into a contract with a third person,
wherein the third person will furnish goods or services for
the Common Area or the Association for a term longer than one
(1) year, with the following exceptions:
(1) A management contract, the terms of which
have been approved by the VA/FHA and are consistent with
provisions herein;
18324.220-6024.FCM 092602 -43-
(2) A contract with a public utility company
if the- rates charged for the materials or services are
regulated by the Public Utilities Commission; provided,
however, that the term of the contract shall not exceed
the shortest term for which the supplier will contract at
the regulated rate;
(3) Prepaid casualty and/or liability insur-
ance policies of not to exceed three (3) years duration,
provided that the policy permits for short-rate cancella-
tion by the insured;
(4) Agreements for cable television services
and equipment or satellite dish equipment and services of
not to exceed five (5) years duration, provided that the
lessor under the agreement is not an entity in which
Declarant has a direct or indirect interest of ten
percent (10%) or more; and
(5) Agreements for sale or lease of burglar
alarm and fire alarm equipment, installation and services
of not to exceed five (5) years duration provided that
the supplier or suppliers are not entities in which the
Declarant has a direct or indirect ownership interest of
ten percent (10%) or more.
(b) Incurring aggregate expenditures for capital
improvements to the Common Area in any fiscal year in excess
of five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year;
(c) Selling during any fiscal year property of the
Association having an aggregate fair market value greater than
five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year;
(d) Paying compensation to Directors 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 Director or officer to be reimbursed for expenses
incurred in carrying on the business of the Association;
(e) Filling a vacancy on the Board created by the
removal of a Director;
(f) Except as otherwise allowed under Section 13 75
of the California Civil Code, as same may be amended from time
to time, incurring dispute resolution, including without
limitation attorneys' fees, where the Association initiates
dispute resolution proceedings or is joined as a plaintiff in
18324.220-6024.FCM 092602 .44.
dispute resolution proceedings. Such approval shall not be
necessary if the legal proceedings are initiated to (i)
enforce the use restrictions contained herein, (ii) enforce
the architectural control provisions contained herein; or
(iii) collect any unpaid assessments levied pursuant to this
Declaration; or
(g) Amending or limiting the Association's duties
and obligations (and benefits) with respect to the Limited
Warranty.
Section 11. Licenses, Easements and Rights-of-Way. The
Board, for and on behalf of the Association, is authorized and
empowered to grant such licenses, easements and rights-of-way for
sewer lines, water lines, underground conduits, storm drains and
other public utility purposes over those portions' of the Common
Area upon which no building or other structure has been erected as
may be necessary and appropriate for the orderly maintenance,
preservation and enjoyment of the Common Area or for the preser-
vation of the health, safety, convenience and welfare of the Own-
ers. Such licenses, easements and rights-of-way may be granted at
any time prior to twenty-one (21) years after the death of the
individuals who have signed this Declaration and their issue who
are in being as of the date hereof, and the right to grant such
licenses, easements and rights-of-way is hereby expressly reserved.
In addition, the Board, for and on behalf of the Association, may
grant exclusive easements to Owners for use and enjoyment over
portions of the Common Area, as the Board determines is reasonable.
Section 12 . New Improvements . Except as otherwise pro-
vided in this Declaration, and subject to applicable City approval,
and the Article herein entitled "Architectural Review - Approval,"
the Association may construct new Improvements or additions to the
Common Area or demolish existing Improvements, provided that in the
case of any Improvement, addition or demolition involving a total
expenditure in excess of five percent (5%) of the budgeted gross
expenses of the Association . for that fiscal year, the written
consent or vote of the Owners in the Project as to the maximum
total cost therefor shall first be obtained in accordance with the
appropriate provisions herein, and provided that no Lot shall be
altered or damaged by any such demolition or construction without
the consent of the Owner thereof. The Board shall levy a Special
Assessment on all Owners in the Project for the cost of such work.
Section 13. ' Association Rules and Regulations. The
Board shall also have the power to adopt, amend and repeal Rules
and Regulations, as it deems reasonable, which may include the
establishment of a system of fines and penalties enforceable as
Compliance Assessments. The Rules and Regulations shall govern such
matters in furtherance of the purposes of the Association,
18324.220-6024.FCM 092602 -45-
including, without limitation, the use of the Common Area, signs,
parking restrictions and enforcement, trash collection, minimum
standards for maintenance of Lots consistent with such standards as
may be set forth in this Declaration or adopted by the Archi-
tectural Review Committee, and any other matter which is within the
jurisdiction of the Association; provided, however, that the Rules
and Regulations may not discriminate among Owners and shall riot be
inconsistent with this Declaration, the Articles or By-Laws. A copy
of the Rules and Regulations as they may, from time to time, be
adopted, amended or repealed, or a notice setting forth the
adoption, amendment or repeal of specific portions of the Rules and
Regulations, shall be delivered to each Owner. The Rules and
Regulations shall have the same force and effect as if they were
set forth in and were part of this Declaration, and shall be
binding on the Owners and their successors in interest, whether or
not actually received thereby. The Rules and Regulations, as
adopted, amended or repealed, shall be available at the principal
office of the Association to each Owner upon request. In the event
of any conflict between any such Rules and Regulations and any
other provisions of this Declaration, or the Articles or By-Laws,,
the provisions of the Rules and Regulations shall be deemed to be
superseded.
Section 14. Nonliability and Indemnification.
(a) General Limitation. Except as specifically
provided in this Declaration, or as required by law, no right,
power or responsibility conferred on the Board or the Archi-
tectural Review Committee by this Declaration, the Articles or
the By-Laws, shall be construed as a duty or obligation
charged upon the Board, the Architectural Review Committee,
any member of the Board or the Architectural Review Committee,
or any other officer, employee or agent of the Association.
No such person shall be liable to any party (other than the
Association or a party claiming in the name of the Associa-
tion) for injuries or damage resulting from such person's acts
or omissions within what such person reasonably believed to be
the scope of his Association duties ("Official Acts"), except
to the extent that such injuries or damage result from such
person's willful or malicious misconduct. No such person
sh,all be liable to the Association (or to any party claiming
in the name of the Association) for injuries or damage
resulting from such person's Official Acts, except to the
extent that such injuries or damage result from such person's
negligence or willful or malicious misconduct;
(b) Personal Liability Limitation. No person who
suffers injury, including, but not limited to, bodily injury
(including, without limitation, emotional distress or wrongful
death) or property damage or loss as a result of the tortious
18324.220-6024.FCM 092602 -46-
act or omission of a volunteer Board member or volunteer
Association" officer shall recover damages from such Board
member or officer if all the following conditions are satis-
fied:
(1) At the time the act or omission occurred,
the Board member or officer resided in the Project as
either a tenant or an Owner of two (2) or fewer Lots;
(2) The act or omission was performed within
the scope of the Board member's or officer's Association
duties;
faith;
(3) The act or omission was performed in good
(4) The act or omission was not willful,
wanton or grossly negligent; and
(5) The Association maintained and had in
effect at the time the act or omission occurred, and at
the time a claim was made, one (1) or more policies of
insurance which included coverage for general liability
for the Association and individual liability of officers
and Directors of the Association for negligent acts or
omissions in such capacity, and both types of coverage
were in the amount of at least One Million Dollars
($1,000,000.00) .
(c) Indemnification. The Association shall pay all
expenses incurred by, and satisfy any judgment or fine levied
against, any person as a result of any action or threatened
action against such person to impose liability on such person
for his Official Acts, provided that:
(1) The Board determines that such person
acted in good faith and in the manner such person
reasonably believed to be in the best interests of the
Association; and
(2) In the case of an action or threatened
action by or in the name of the Association, the Board
determines that such person acted with such care,
including reasonable inquiry, as an ordinary prudent
person in a like position would use under similar
circumstances.
Any determination of the Board required under this
Section must be approved by a majority vote of a quorum
consisting of Directors who are not parties to the action or
18324.220-6024.FCM 092602 •47-
threatened action giving rise to the indemnification. If the
Board fails" or refuses to make any such determination, such
determination may be made by the vote or written consent of a
majority of a quorum of the Members of the Association,
provided that the person to be indemnified shall not be
entitled to vote. The entitlement to indemnification hereun-
der shall inure to the benefit of the estate, executor,
administrator, heirs or devisees of any person entitled to
such indemnification.
ARTICLE VI
ASSESSMENTS
Section 1. Creation of the Lien and Personal Obliga-
tion of Assessments. The Declarant, for each Lot owned within the
Project, hereby covenants, and each Owner of any Lot, by acceptance
of a deed therefor, whether or not it shall be so expressed in such
deed, is deemed to covenant and agree to pay to the Association:
(a) Regular Assessments; (b) Special Assessments for capital im-
provements and such other purposes set forth herein; (c) Compliance
Assessments, including, but not limited to, costs incurred by the
Association in the repair of damage to the Common Area for which
such Owner was responsible and costs incurred by the Association in
bringing such Owner and his Lot into compliance with this Declara-
tion; (d) Special Benefit Assessments; and (e) such other assess-
ments as the Association may periodically establish. The Regular,
Special and Special Benefit Assessments, together with interest,
costs and reasonable attorneys' fees for the collection thereof,
shall be a charge on the land and shall be a continuing lien upon
the Lot against which each such Assessment is made. Each Regular
Assessment, Special Assessment and Special Benefit Assessment,
together with interest, costs and reasonable attorneys' fees for
the collection thereof, shall also be the personal obligation of
the Owner of such .property at the time when the Assessment fell
due. Each Compliance Assessment levied against an Owner, together
with interest, costs and reasonable attorneys' fees for the collec-
tion thereof, shall be the personal obligation of the Owner of the
property at the time of the Assessment. The personal obligation for
delinquent Assessments shall not pass to an Owner's successors in
title unless expressly assumed by them.
Section 2. Purpose of Regular Assessments: Le"w and
Collection. The Regular Assessments levied by the Association shall
be used exclusively to promote the health, safety and welfare of
all Owners in the Project, and to maintain and improve the Common
Area. The Association, by and through the Board, shall levy and
collect Assessments from the Owner of each Lot in the Proj ect. in an
amount sufficient to cover all of the Common Expenses incurred by
18324.220-6024.FCM 092602 •48-
the Association in connection with the performance and execution of
its powers and duties set forth in this Declaration, the By-Laws
and the Articles. Regular Assessments may be collected on a monthly
installment basis.
Section 3. Regular Assessments - Basis. Regular
Assessments payable to the Association shall be assessed equally
against all Owners of Lots. Each Owner's proportionate share of
the Common Expenses of the Association in any fiscal year shall be
a fraction, the numerator of which shall be the number of Lots
owned by such Owner, and the denominator of which shall be the
total number of Lots in the Project which are subject to assess-
ment .
(a) Range of Assessments. During the period the
Project is being built out. Declarant may annex one or more
Phases into the Project in accordance With the provisions of
this Declaration. Since Regular Assessments will typically
change in amount each time a Phase is annexed into the Project
and because the annexation of additional Phases might occur in
quick succession, in order to facilitate the orderly annex-
ation of Phases and to avoid the confusion and administrative
burden which would result from multiple changes in the amount
of the Regular Assessments as additional Phases are annexed
into the Project, Declarant, with the DRE's approval, has
established a "Range of Assessments" procedure which, subject
to the provisions set forth herein for adjustment, shall be
applicable to all Phases annexed into the Project. Unless
terminated earlier by Declarant with the DRE's approval, the
Range of Assessments procedure set forth herein shall be
effective during the period additional Phases may be annexed
into the Project without the approval of the Members of the
Association, as set forth in the Article hereinbelow entitled
"Annexation of Additional Property."
(b) Calculation of Range of Assessments. The Range
of Assessments has been established by calculating an initial
"Minimum Authorized Regular Assessment" and a "Maximum
Authorized Regular Assessment." Subject to the provisions of
subparagraph (d) below, the Minimum and Maximum Authorized
Regular Assessments constitute, respectively, the lowest
Regular Assessment and highest Regular Assessment that may be
established by the Board during the development of the
Project. The Range of Assessments has been created in
contemplation that, upon the annexation of future Phases of
the Project, the Board shall le-vy Regular Assessments that
fall within the Range of Assessments approved by the DRE and
set forth in the Final Subdivision Public Reports issued by
the DRE for such Phases. Notwithstanding the foregoing, the
initial Range of Assessments (and corresponding Minimum and .
18324.220-6024.FCM 092602 •49-
Maximum Authorized Regular Assessments) approved by the DRE
may be recalculated and adjusted with the approval of Declar-
ant and the DRE in order to account for various changes in
circumstances (including, but not limited to, construction of
additional Improvements in the Common Area, the delegation to
or assumption by the Association of additional maintenance
responsibilities, and the incurring of unanticipated extraor-
dinary expenses by the Association). Neither Declarant nor
the DRE will undertake a review of the Association Budget for
each Phase proposed to be annexed to the Project, unless the
Regular Assessment proposed to be levied by the Board falls
outside the approved Range of Assessments.
(c) Fluctuation of Regular Assessments. As
additional Phases are annexed into the Project, the Regular
Assessments may be adjusted, upwards or downwards, subject to
the limitations set forth in subparagraph (d) and (e) below.
To facilitate the orderly levy and collection of Regular
Assessments, the Board may establish a "mean" monthly install-
ment of the Regular Assessment at a level sufficient to defray
the Common Expenses of the Association during the development
of the Project.
(d) Consent of Declarant Required. So long as
Declarant is offering any Lots for sale, and pursuant to a
Final Subdivision Public Report, the Regular Assessments may
not be decreased below the Minimum Authorized Regular Assess-
ment, or increased above the Maximum Authorized Regular
Assessment without the express written consent of Declarant.
Nothing herein shall limit the Association, upon ratification
by a majority of the Board, from entering into an agreement
with Declarant, its successors or assigns, to reduce or abate
Assessments, upon such terms and conditions as may be agreed
to by the parties.
(e) Limitations on Increases in Regular Assess-
ment s. Subject to the limitations of California Civil Code
Section 1366, as same may be amended, from time to time, and
the Range of Assessment allocations noted herein, from and
after the first day of the fiscal year immediately following
the conveyance of the first Lot to an Owner, the maximum
Regular Assessment may be increased subject to the following
limitations:
(1) Increases in Regular Assessments for any
fiscal year which are less' than or equal to twenty per-
cent (2 0%) above the maximum Regular Assessment for the
immediately preceding fiscal year may be approved by the
Board, provided that the Board shall: (1) comply with the
provisions set forth in Section 1365(a) of the California
18324.220-6024.FCM 092602 -50-
Civil Code with respect to the distribution of the pro
forma operating budget of the Association for the forth-
coming fiscal year; or (2) obtain the approval of
Members, constituting a quorum, casting a majority of
affirmative votes at a meeting or an election of the
Association conducted in accordance with California
Corporations Code Sections 7510, et seq., and Sections
7613, et seq. For purposes of this entire Section 3, a
quorum means more than fifty percent (50%) of the Members
of the Association;
(2) Increases in Regular Assessments for any
fiscal year which are greater than twenty percent (20%)
above Regular Assessments for the immediately preceding
fiscal year may be approved by the Board only after the
Board obtains the approval of Members, constituting a
quorum, casting a majority of affirmative votes at a
meeting or election of the Association, conducted in
accordance with Sections 7510, et seq., and Section 7613
of the Corporations Code; and
(3) The Assessment increases limitation set
forth in Subsection (2) above does not apply to increases
in Assessments related to emergency situations, which
shall be deemed to include the following:
i) Extraordinary expenses required by
an order by a court of competent jurisdiction;
ii) Extraordinary expenses for the
maintenance or repair of Common Area that is neces-
sary to remedy any dangerous condition in the
Project that represents a threat of damage or
injury to any person or property; and
iii) Extraordinary expenses necessary to
repair or maintain the Common Area that could not
have been reasonably anticipated by the Board at
the time the most recent Association budget was
prepared. Notwithstanding the foregoing, in the
event that the Board increases the Regular Assess-
ment above twenty percent (20%) pursuant to this
Subparagraph (3), the Board shall distribute writ-
ten notice concerning such increase to all Owners
and a copy of a resolution adopted by the Board
setting forth: (i) the necessity of the extraordi-
nary expenses; and (ii) the justification why said
expenses were not reasonably foreseeable at the
time the most recent budget was prepared. For the
purpose of calculating whether an increase to
18324.220-6024.FCM 092602 •51-
Regular Assessments exceeds twenty percent (2 0%),
the term "Regular Assessments" shall be deemed to
include the amount assessed against each Lot by the
Association as a Regular Assessment, plus any
amount paid by the Declarant as a subsidy or pursu-
ant to any subsidy or maintenance agreements, to
the extent such subsidy payments offset an amount
which would otherwise be paid by Owners as Regular
Assessments.
(f) Exemptions from Regular Assessments. Notwith-
standing the commencement for payment of Regular Assessments,
or any other provisions of this Declaration, Declarant and any
other Owner of a Lot which does not include a structural Im-
provement for human occupancy shall be exempt from the payment
of that portion of any Assessment (e.g., Regular Assessment)
which is for the purpose of defraying operating expenses and
reserves directly attributable to the existence and/or use of
such structural Improvements. This exemption shall include,
but shall not necessarily be limited to, that portion of any
Assessment attributable to roof replacement, exterior mainte-
nance, exterior walkway and carport lighting, refuse disposal,
cable television and domestic water supplied to Residences.
This exemption shall be in effect only until the earliest to
occur of: (a) the recordation of a notice of completion for
the structural Improvements; (b) the occupation or use of the
Residence; or (c) the completion of all elements of the Lot
which the Association is obligated to maintain, if any.
Declarant and any Owner shall also be exempted from the
payment of that portion of any Assessment which is for the
purpose of defraying, expenses and reserves directly attribut-
able to the existence and use of any Common Area facilities
that are not complete at the time Assessments commence. This
latter exemption shall only be in effect as to a particular
Common Area facility until the earlier of: (a) the recordation
of a notice of completion for such Common Area facility; or
(b) the placement into use of the particular Common Area
facility.
Section 4. Special Assessments for Capital Improve-
ments . In addition to the Regular Assessments authorized above, the
Board may not, subject to the limitations of California Civil Code
Section 13 66, without the vote or written approval of Members
constituting a quorum (which shall mean more than fifty percent
[50%] of Owners of the Association) casting a majority of affirma-
tive votes at a meeting or election of the Association, conducted
in accordance with Sections 7510, et seq. , and 7613 of the
Corporations Code, le"vy 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
18324.220-6024.FCM 092602 •52-
of the Association for that fiscal year. The five percent (5%)
limitation shall" not apply to increases in Special Assessments
related to an emergency situation which shall be deemed to include
the following:
(a) Extraordinary expenses required by an order by
a court of competent jurisdiction;
(b) Extraordinary expenses for the maintenance or
repair of Common Area that is necessary to remedy any danger-
ous condition in the Project that represents a threat of
damage or injury to any person or property; and
(c) Extraordinary expenses necessary to repair or
maintain the Common Area that could not have been reasonably
anticipated by the Board at the time the most recent Associ-
ation budget was prepared. Notwithstanding the foregoing,,in
the event the Board levies any Special Assessment that exceeds
the five percent (5%) limitation pursuant to this Section, the
Board shall distribute written notice concerning said Special
Assessment to all Owners and a copy of a resolution adopted by
the Board setting forth: (1) the necessity of said Special
Assessment; and (2) the justification why said Special
Assessment was not reasonably foreseeable at the time the most
recent budget was prepared.
Every Special Assessment shall be levied upon the same basis as
that prescribed for the le"vying of Regular Assessments.
Section 5. Compliance Assessments. A Compliance
Assessment may not be characterized nor treated as an assessment
which may become a lien against the Owner's Lot enforceable by a
sale in accordance with the provisions of Sections 2924, 2924(b)
and 2924(c) of the Civil Code; provided, however, at such time as
sales of Lots in the Project are no longer governed by regulations
adopted by the DRE, the foregoing shall not apply to any Compliance
Assessment imposed against an Owner consisting of a reasonable late
payment penalty for delinquent Assessments and/or charges to re-
imburse the Association for the loss of interest and for costs
reasonably incurred (including attorneys' fees) in its efforts to
collect delinquent Assessments or imposed for costs incurred by the
Association in the repair of damage to Common Area and facilities
for which the Member or the Member's guests or tenants were
responsible.
Section 6. Special Benefit Assessments . Special Bene-
fit Assessments shall mean and refer to a charge levied by the
Association against an Owner and his respective Lot to cover the
expenses incurred by the Association in the operation, maintenance,
repair, and/or funding of reserves as to a portion of the Project
18324.220-6024.FCM 092602 •53
designated herein or in a Notice of Annexation as a "Special
Benefit Area" or" which is identified or referred to as an area or
facility benefitting primarily the Owners within such an Area.
These expenses shall be chargeable only to Owners in a Special
Benefit Area, and may include, without limitation, the following:
(a) Maintenance, management, operation, repair and
replacement of particular Improvements within the Special
Benefit Area;
(b) Utilities or services for the benefit of Owners
within the Special Benefit Area;
(c) Reasonable reserves, as deemed appropriate by
the Board, for repair and replacement of any Improvements
maintained by the Association within a Special Benefit Area;
and
(d) Unpaid Special Benefit Assessments.
The Association shall distribute to Owners within any Special
Benefit Area a pro forma operating statement and budget for the
upcoming fiscal year which shall estimate the expenses attributable
to the Special Benefit Area, and shall set forth the amount and
payment schedule of the Special Benefit Assessments. Increases in
Special Benefit Area Assessments for any fiscal year which are less
than or equal to twenty percent (20%) above the maximum Special
Benefit Area Assessment for the immediately preceding fiscal year
may be approved by the Board, provided that the Board shall obtain
the approval of Members affected by such Assessment, constituting
a quorum, casting a majority of affirmative votes. For purposes of
this Section, a quorum means more than fifty percent (50%) of the
Members of the Association affected by the Special Benefit Area
Assessment. The Assessment increase limitation set forth herein-
above does not apply to increases in Special Benefit Area Assess-
ments related to emergency situations that could not have been
reasonably anticipated by the Board at the time the most recent
Association budget was prepared which determined the amount of the
Special Benefit Area Assessments.
Section 7. Date of Commencement of Regular Assess-
ments: Due Dates. Subject to the terms of any maintenance and/or
subsidy agreement entered into by the Association and Declarant,
the Regular Assessments provided for herein shall commence as to
all Lots in each Phase on the first day of the month following the
first close of escrow for the sale of a Lot in such Phase, or on
the first day of the month following the first occupancy of a Lot
in such Phase pursuant to a rental or lease agreement with the
Declarant, or its authorized agent, whichever occurs first. Except
as otherwise provided in this Article, the first Regular Assess-
18324.220-6024.FCM 092602 •54-
ments shall be adjusted according to the number of months remaining
in the fiscal year as set forth in the By-Laws. The Board shall fix
the amount of the Regular Assessment against each Lot at least
thirty (3 0) days in advance of each Regular Assessment period.
Written notice of the Regular Assessment shall be sent to every
Owner subject thereto at least thirty (30) days in advance of each
Assessment period. The due dates shall be established by the Board.
Notwithstanding any other provisions of this Declaration, until the
earlier to occur of: (a) the recordation of a Notice of Completion
of an Improvement to the Common Area; or (b) the placement into use
of the Common Area, each Owner (including Declarant) may be
declared by the Board to be exempt from paying that portion of the
Regular Assessment which is directly attributable to expenses and
reserves to be incurred by the Association in the maintenance,
operation and repair of such Common Area.
Section 8. Collection of Assessments. Except as oth-
erwise provided above or in any subsequent Notice of Annexation,
Regular and Special Assessments shall be levied at a uniform rate
for all Lots and may be collected on a monthly basis. If any
installment of a Regular Assessment is less than the amount
assessed and the payment does not specify the Association funds or
fund into which it should be deposited, the receipt by the-
Association from that Member shall be credited in order of priority
first to the operating fund, until that portion of the Regular
Assessment has- been satisfied, and second to the reserve fund.
Compliance Assessments and Special Benefit Assessments shall be due
thirty (30) days after such Assessment has been levied.
Section 9. Notice of Increase in Assessments. The
Board shall provide to the Owners, by first class mail to the
address on file with the Association, notice of any increase in
Regular, Special, and/or Special Benefit Assessments not less than
thirty (30) nor more than sixty (60) days prior to such increase
becoming due.
Section 10. Certification of Payment. The Association
shall, upon demand and for a reasonable charge, furnish a cer-
tificate signed by an officer or agent of the Association setting
forth whether the Assessments on a specified Lot have been paid. If
a certificate states that Assessments have been paid, such certif-
icate shall be conclusive evidence of such payment.
Section 11. Delivery by Owner. Each Owner of a Lot
shall, as soon as practicable prior to the transfer of title to the
Lot or the execution of a real property sales contract, as defined
in California Civil Code, Section 2985, or as may be amended, from
time to time, give to the prospective purchaser a copy of this
Declaration and copies of the By-Laws and Articles of the Associa-
tion, and a true statement, in writing, from the Board as to the
18324.220-6024.FCft 092602 -55-
amount of the Association's current Regular and Special Assessments
and fees, as well as any delinquent Assessments and information
relating to penalties, attorneys' fees and other charges authorized
by this Declaration on the Lot as of the date the statement is
issued, and any change in the Association's current Assessments and
fees which have been approved by the Board but have not become due
and payable as of the date disclosure is provided pursuant to this
Section.
Section 12. Delivery by Declarant. Within ninety (90)
days following the first close of escrow for the sale of a Lot in
the Project, or as soon as reasonably obtainable, the Declarant
shall provide the Association with copies of the (1) recorded tract
map for the project; (2) Common Area grant deeds; (3) this
Declaration; (4) filed Articles of Incorporation; (5) the Associat-
ion' s by-laws; (6) rules and regulations or architectural guide-
lines adopted by the Association, if any; (7) notice of completion
certificates for Common Area, if any; (8) completion bond(s) naming
the Association as a beneficiary, if any; (9) warranties for Common
Area equipment or fixtures, if any; (10) insurance policies
obtained for the Association; and (11) membership register, to the
extent it is available and if required by law.
Section 13. Reserves. The Regular Assessments shall
include reasonable amounts, as determined by the Board, collected
as reserves for the future periodic maintenance, repair and re-
placement of all or a portion of the Common Area or any such other
purpose determined by the Board. All amounts collected as reserves
shall be deposited by the Board in a separate bank account for the
purposes for which they were collected, and are to be segregated
from and not commingled with any other funds of the Association.
The expenditure of such funds shall be limited to the repair and
replacement of those elements of the Common Area which must be
repaired or replaced according to a reserve study as permitted by
Section 13 65.5 of the California Civil Code, as same may be amended
from time to time.
Section 14. Offsets and Waiver Prohibited. No Owner
may waive or otherwise avoid liability for the Assessments provided
for herein for any reason whatsoever, including, but not limited
to, non-use of the Common Area or abandonment of his Lot, nor shall
any Owner be entitled to any offset against any Assessment provided
for herein for any reason whatsoever, including, but not limited
to, any expenditure made by such Owner for or on behalf of the
Association.
Section 15. Exempt Property. The following property
subject to this Declaration shall be exempt from the Assessments
herein:
18324.220-6024.FCM 092602 -56-
(a) All property dedicated to and accepted by any
public authority;
(b) All property owned by a charitable or nonprofit
organization exempt from taxation by the laws of the State of
California. However, no land or Improvements devoted to
dwelling use shall be exempt from said Assessment; and
(c) All Common Area owned in fee by the Associa-
tion.
ARTICLE VII
EFFECT OF NONPAYMENT OF ASSESSMENTS:
REMEDIES OF THE ASSOCIATION
Section 1. Effect of Nonpayment of Assessments: Reme-
dies of the Association. Any installment of a Regular, Special,
Special Benefit, or Compliance Assessment not paid within fifteen
(15) days after it is due and payable, shall be deemed delinquent
and the Owner shall be required tO' pay: (a) reasonable costs of
collection, including reasonable attorneys' fees; (b) a reasonable
late charge not exceeding ten percent (10%) of the delinquent
Assessment or Ten Dollars ($10.00), whichever is greater, or as
may,.from time to time, be established by the Board in accordance
with California law; and (c) interest on all sums imposed under
this Section at an annual percentage rate not to exceed twelve per-
cent (12%), commencing thirty (30) days after the Assessment was
due. The Association need not accept any tender of a partial
payment of an assessment installment and all costs and attorneys'
fees attributable thereto, and any acceptance of any such tender
does not waive the Association's right to demand and receive full
payments thereafter. Payments for Assessments shall first be
applied to the principal owed for the Assessments and only after
such principal amount is paid in full, shall such payments be
applied to interest or collection expenses for such Assessments.
The Board, for and on behalf of the Association, may commence legal
action against the Owner personally obligated to pay the same, or,
in the case of a Regular, Special or Special Benefit Assessment,
may foreclose the lien against his Lot. Such lien may also be fore-
closed by a power of sale or other nonjudicial procedure provided
for by the laws of the State of California. In furtherance thereof,
each Owner hereby vests in the Association, its successors or
assigns, the right and power to bring all actions at law or to
pursue lien foreclosure against any Owner for purposes of col-
lecting such Delinquent Assessments. To the extent permitted by
law, each Owner waives, with respect to the extent of any liens
created pursuant to this Article, the benefit of any homestead or
18324.220-6024.FCM 092602 •57-
exemption laws of California in effect at the time any Assessment,
or installment thereof becomes delinquent or any lien is imposed.
Section 2. Notice of Delinquent Assessments. No ac-
tion shall be brought to foreclose a lien for delinquent Assess-
ments, or to proceed under the power of sale herein, unless (1) the
Association notifies the Owner in writing by certified mail of the
fee and penalty procedures of the Association provides an itemized
statement of the charges owed by the Owner, including items on the
statement which indicate the principal owed, any late charges and
the method of calculation, any attorneys' fees, and the collection
practices used by the Association, including the right of the
Association to the reasonable costs of collection; and (2) at least
thirty (3 0) days has expired following the date a "Notice of
Delinquent Assessments" is deposited in the United States mail,
certified or registered, postage prepaid, to the Owner of said Lot,
and a copy of the Notice is recorded by the Association in the
Office of the County Recorder. Said Notice of Delinquent Assess-
ments must recite or include the name and street address of the
record Owner, a good and sufficient legal description of any such
Lot, an itemized statement of the amount claimed due and payable
(including any reasonable late charges as may, from time to time,
be established by the Board in accordance with California law [and
the method of calculation], interest on the unpaid Assessment, plus
reasonable attorneys' fees and expenses of collection incurred in
connection with the debt secured by said lien), a copy of the
Association's collection practices, and the name and address of the
principal office of the Association, and, in the event of a non-
judicial, foreclosure, as provided in Section 3 below, the name and
address of the trustee authorized by the Association to enforce the
lien by sale. The Notice shall be signed and acknowledged by the
President, or Vice President, and the Secretary, or assistant
Secretary, of the Association and mailed in the manner set forth in
Section 2924(b), to all record Owners of the Owner's interest in
the Project no later than ten (10) calendar days after recordation.
The lien shall continue until fully paid or otherwise satisfied.
Section 3. Foreclosure Sale. Any foreclosure sale
provided for above is to be conducted by the Board, its attorney or
other persons authorized by the Board in accordance with the
provisions of Sections 2924, 2924a, 2924b and 2924c of the Cali-
fornia Civil Code, as same ma'y be amended, from time to time,
applicable to the exercise of powers of sale in Mortgages and deeds
of trust, or in any other manner permitted by law. The Association,
through duly authorized agents, shall have the power to bid on the
Lot at a foreclosure sale, and to acquire, hold, lease, mortgage
and convey the same. Any Owner, by acceptance of a deed for his
Lot, hereby expressly waives any objection to the enforcement and
foreclosure of the lien in this manner.
18324.220-6024.FCM 092602 •58-
Section 4. Curing of Default. Upon the timely curing
of any default for which a Notice of Delinquent Assessments or lien
was filed by the Association, the officers thereof are hereby
authorized to file or record, as the case may be, an appropriate
release of such Notice upon payment by the defaulting Owner of a
reasonable fee to be determined by the Association to cover the
costs of preparing and filing or recording such release.
Section 5. Cumulative Remedies. The Association's
remedies for nonpayment of Assessments, including, but not limited
to, an action to recover a money judgment. Assessment lien and
right of foreclosure and sale, are cumulative and in addition to
and not in substitution of any other rights and remedies which the
Association and its assigns may have hereunder or at law.
Section 6. Mortgagee Protection. Notwithstanding all
other provisions hereof, no lien created hereunder, nor any breach
of the terms and provisions of this Declaration, nor the en-
forcement of any term or provision hereof, shall defeat or render
invalid the rights of any Mortgagee under any recorded Mortgage or
deed of trust upon a Lot made in good faith and for value;
provided, that after such Mortgagee or other person or entity
obtains title to such Lot by judicial or nonjudicial foreclosure,
such Lot shall remain subject to this Declaration and the payment
of Assessments which fall due subsequent to the date of taking
title.
ARTICLE VIII
USE RESTRICTIONS
The Lots and Common Area shall be occupied and used only
as set forth below.
Section 1. Private Residential Dwelling. Each Lot
shall be used as a private residential dwelling and for no other
purpose, subject to limitations set forth in the Entitlements From
City, and except such temporary uses as shall be permitted by
Declarant while the Project is being developed and Lots are being
sold by Declarant; provided, however, the Declarant reserves the
right, for a period of five (5) years from recordation of this
Declaration, or until all Lots in Carlsbad Tract CT 00-16 are sold
(and escrows closed), whichever shall first occur, to carry on
normal sales activity on the Project, including the operation of
models and sales offices, provided Declarant shall not unreasonably
interfere with any other Owner's use of the Common Area. All Owners
may be required by the City to certify such Owner's intent to
occupy the Residence as said Owner's primary Residence as a year-
round occupant. No Owner shall use his or her Lot or the Common
18324.220-6024.FCM 092602 •59-
Area in violation of any local, state, or federal law and any such
violation shall "be remedied within thirty (30) days of written
notice to the Owner from the Association.
Section 2 . Common Area Use. Use of the Common Area
shall be subject to the provisions of this Declaration, the Rules
and Regulations and to any additional limitations imposed by the
Association.
Section 3 . Conduct Affecting Insurance. Nothing shall
be done or kept in any Lot or in the Common Area which will in-
crease the rate of insurance on the Common Area without the ap-
proval of the Association. No Owner shall permit anything to be
done or kept in his Lot or in the Common Area which will result in
the cancellation of insurance on the Common Area or which would be
in violation of any law. If, by reason of the occupancy or use of
said premises by the Owner, the rate of insurance to the Common
Area shall be increased, the Owner shall become personally liable
for the additional insurance premiums.
Section 4. Liability for Damage. Each Owner shall be
liable to the Association, pursuant to the laws of the State of
California, for any and all costs and expenses which may be in-
curred by the Association to repair any damage to the Common Area
which be sustained by reason of the negligence or willful miscon-
duct of said Owner or of his family, tenants, lessees or contract
purchasers, or their respective guests or invitees, whether minor
or adult. After approval by a majority of the Board, any such costs
and expenses shall be levied by the Board as a Compliance Assess-
ment against such Owner's Lot.
Section 5. Signs. Subject to the provisions of Cali-
fornia Civil Code, Sections 712 and 713, as same may be amended
from time to time, no sign of any kind shall be displayed to the
public view on or from any Lot or the Common Area without the
approval of the Association, except such signs as may be used by
Declarant for a period of five (5) years from recordation of this
Declaration or until all Lots in Carlsbad Tract CT 00-16 are sold
(and escrows closed), whichever is first to occur, in connection
with the development of the Project and sal.e of Lots, and except
one (1) "for sale," "for lease" or "for exchange" sign of reason-
able size (but not exceeding three [3] square feet) on any Lot. The
foregoing restrictions shall not apply to any sign of customary and
reasonable dimensions displayed on the Owner's Lot (or another
Owner's Lot with consent) which states that the Residence is for
sale, lease or exchange, or advertising directions to the Residence
by the Owner or his or her agent, and which is reasonably located
in plain view of the public, so long as it is consistent with any
standards promulgated by the Architectural Review Committee. All
signs permitted under this Section shall conform with the City's
18324.220-6024.FCM 092602 -60-
sign ordinance, if any, and with all applicable governmental
regulations.
Section 6. Maintenance of Animals. No animals of any
kind shall be raised, bred or kept in any Lot or in the Common
Area, except that common household pets, including dogs, cats, fish
or birds, may be kept in each Lot; provided, however, that no
animal shall be kept, bred or maintained for any commercial purpose
or in unreasonable numbers as determined by the Board. As used
herein, "unreasonable numbers" shall ordinarily mean more than two
(2) animals (excluding fish and birds) per Lot. Each Owner shall be
responsible for cleaning up any excrement or other unclean or
unsanitary condition caused by said animal in the Project. While
walking or exercising an animal in the Project, the owner thereof
shall, at all times, comply with any applicable City ordinances and
have readily available means to cleanup any excrement or other
unclean or unsanitary conditions caused by said animal. The
Association, upon the approval of a majority of the Board, shall
have the right to prohibit maintenance of any animal within the
Project which constitutes a private nuisance to any other person.
Every person bringing an animal upon or keeping an animal in the
Project shall be liable pursuant to the laws of the State of
California to each and all persons for any injury or damage to
persons or property caused by such animal. All animals maintained
in a Lot must be kept either within an enclosure, yard or patio, or
on a leash being held by a person capable of controlling the
animal.
Section 7. Quiet Eni o-ymaent. No Owner shall permit or
suffer anything to be done or kept upon such Owner's Lot which will
obstruct or interfere with the rights of quiet enjoyment of the
other occupants, or annoy them by unreasonable noises or otherwise,
nor will any Owner commit or permit any nuisance on the premises or
commit or suffer any immoral or illegal act to be committed
thereon. Notwithstanding the foregoing, for as long as Declarant
owns an interest in the Project, the Declarant's efforts in selling
the Lots may interfere with the Owners' quiet enjoyment of the
Lots, however, each Owner acknowledges this and waives any claims
against the Declarant for nuisance due to any activity related to
constructing, selling or marketing the Lots. Each Owner shall
comply with all of the requirements of the Board of Health and of
all other governmental authorities with respect to said premises,
and shall remove all rubbish, trash and garbage from his Lot. All
clotheslines, refuse containers, woodpiles, storage boxes, tools
and equipment shall be prohibited from any Lot unless obscured from
view by a fence or appropriate screen approved by the Architectural
Review Committee provided for hereinbelow.
Section 8. Grading/Irrigation. No Owner shall permit
any act to be performed on such Owner's Lot which would result in
18324.220-6024.FCM 092602 -61-
erosion of the Common Area or Lots in the Project, including, but
not limited to, changing the grading of his Lot or over-irrigating
same. If the Owner permits any such act resulting in erosion of or'
other damage to the Common Area or Lots in the Project, said Lot
Owner will be personally liable to the Association or the respec-
tive Lot Owner for such damage. If the Common Area is damaged, a
Special Assessment shall be levied against such Lot Owner's'Lot to
recover all costs and expenses incurred to repair or reconstruct
that portion of the Common Area damaged by such Lot Owner.
Section 9. Structural Changes. There shall be no
structural alteration, construction or removal of any Residence,
fence, wall, or other structure whatsoever in the Project without
the prior written approval of the Board or its designated Architec-
tural Review Committee (including ahy necessary City approval), as
required herein, except such works of construction by Declarant
during the development of the Project.
Section 10. Improvements. There shall be no construc-
tion, alteration or removal of any Improvement in the Project
(other than those repairs or rebuilding permitted under the Article
entitled "Damage" or Destruction'to the Common Area") without the
approval of the Architectural Review Committee, as set forth
hereinbelow. No Improvement shall be constructed upon any portion
of any Common Area, other than such Improvements as shall be con-
structed: (a) by the Declarant (or a person or entity to whom
Declarant assigns its rights as developer), or (b) by the Associ-
ation as provided herein. No fence or wall may be erected, altered
or maintained on any Lot except with the Architectural Review
Committee's prior approval. No projections of any type may be
placed or permitted to remain above the roof of any Residence
within the Project, except one (1) or more chimneys and vent stacks
originally installed, if at all, by Declarant. No basketball
backboard or other fixed sports apparatus (except those originally
constructed or installed by Declarant) may be constructed or
maintained in the Project without the Architectural Review
Committee's prior written approval. No patio cover, wiring or air
conditioning fixture, water softeners or other devices may be
installed on the exterior of the Residence, on a Lot, or be allowed
to protrude through the walls or roof of the Residence (with the
exception of those items installed during the original construction
of the Residence by Declarant) unless the Architectural Review
Committee's prior written approval is obtained. Any mechanical
and/or electrical equipment installed on the Project (including,
without limitation, all equipment associated with the sewer pump
station located within the Project), shall be appropriately
screened from public view in a manner acceptable to a City Planner
for the City (or as otherwise governed by applicable City municipal
codes) and approved by the Architectural Review Committee.
18324.220-6024.FCM 092602 •62-
Section 11. Height Restrictions. As required by the
City, fifty percent (50%) of all Residences within the Project have
building heights of 26 feet or less, and the remainder of the
Residences within the Project have limited use of roof elements up
to 2 8 feet high. There shall be no construction, alteration or
remodeling of any Residence within the Project which increases the
building height of the Residence without the approval of the City
and the Architectural Review Committee, as set forth hereinbelow.
Section 12. Balconies, Trellises, Decks, Patio Covers,
and Other Additions. As required by the City, no enclosed or
unenclosed addition (including, without limitation, balconies,
trellises, decks, and patio covers) shall be allowed on any Lot.
within the Project at any time by any Owner (or his/her successor
in interest) or occupant, unless such addition is within the area
of a Lot authorized under the "Balcony, Trellis, Deck, Patio Cover,
and Other Additions Exhibit" attached hereto as Exhibit "E" and the
Architectural Review Committee has approved the same, as set forth
hereinbelow.
Section 13. Grass Planting Strips in Driveways. As
required by the City, the grass planting strips originally
installed by Declarant in the driveways of the Residences within
the Project may not be altered or removed without the approval of
the Architectural Review Committee, as set forth hereinbelow. In
the event that the grass planting strips are removed, they must be
replaced with decorative paving that has been approved by the
Architectural Review Committee.
Section 14. Porches. As required by the City, no
porch associated with any Residence in the Project may be enclosed,
used to support a second-story deck, or converted to a liveable
area.
Section 15. Sewer Pump Station. As required by the
City, all equipment associated with the sewer pump station located
within the Project shall at all times be adequately screened from
public view in a manner acceptable to the City.
Section 16. Open Space Areas. As required by the
City, all trellis and gazebo structures located in the open space
areas within the Project shall be set back at least five (5) feet
from any adjacent Lot line and at least ten (10) feet from the curb
line of any street. Unless specifically approved by the City and
the Architectural Review Committee, there shall be no development
or construction of any other Improvements, including, but not
limited to, any fences, walls, decks, storage buildings, pools,
spas, stairways, or landscaping, on the property which has been
designated as open space on the map of Carlsbad Tract CT 00-16.
18324.220-6024.FCM 092602 •63-
Section 17. Sight Distance Corridors. As required by
the City, no structure, fence, wall, tree, shrub, sign, or other
object over 3 0 inches above the street level may be placed or
permitted to encroach within any area identified as a sight
distance corridor in accordance with City Standard Public Street
Design Criteria, Section 8.B.3. Each Owner of a Lot on which- a
sight distance corridor is located shall be responsible for
maintaining this condition. Those areas which have been identified
by the City as sight distance corridors within Phase 1 of the
Project are depicted on Exhibit "F" attached hereto. Any landscap-
ing (e.g., tree) canopy which is within or which may encroach into
such area, shall be maintained so that said canopy is at least six
feet (6') above the ground within the sight distance corridor.
Section 18. Post Tension Slabs. Each Owner hereby
acknowledges that the concrete slab for Owner's Residence may be
reinforced with a grid of steel cables which would be installed in
the concrete and then tightened to create very high tension. This
type of slab is commonly known as a "Post Tension Slab." Each Owner
further acknowledges cutting into a Post Tension Slab for any
reason (e.g. to install a floor safe, to remodel plumbing, etc.) is
very hazardous and may result in serious damage to the Residence
and/or personal injury. By accepting a grant deed to the Lot, and
subject to confirmation by the Owner that his/her Residence was
constructed with a post tension slab, each such Owner hereby
specifically covenants and agrees that:
(a) He/she shall not cut into or otherwise tamper
with the Post Tension Slab;
(b) He/she shall not knowingly permit any other
person to cut into or tamper with the Post Tension Slab so
long as Owner owns any interest in the Lot;
(•c) He/she shall disclose the existence of the Post
Tension Slab to any tenant, lessee, or grantee of the Resi-
dence ; and
(d) He/she shall indemnify and hold Declarant, and
its respective officers, employees, contractors and agents,
free and harmless from and against any and all claims,
damages, losses, or other liability (including attorneys'
fees) arising from any breach of this Section.
•Section 19. Windows. No window in any Residence shall
be covered in whole or in part, inside or outside, with aluminum
foil, newspaper, paint, tint or any other material reasonably
deemed inappropriate for such use by the Association.
18324.220-6024.FCM 092602 •64-
Section 20. Commercial Activity. No business, commer-
cial, manufacturing, mercantile, storage, vending or industrial
operations of any kind shall be conducted in or upon any Lot or the
Common Area, except such temporary uses as shall be permitted by
Declarant. Notwithstanding the foregoing, this Section shall not
preclude an Owner from maintaining a home-office and conducting
business activities therefrom on the following conditions: (a)
there is no external evidence of such activity; (b) such activities
are conducted in conformance with all applicable government
ordinances; (c) the patrons or clientele of such activities do not
visit the Residence or park automobiles or other vehicles within
the Project; (d) the existence or operation of such activities is
not apparent or detectable by sight, sound or smell from outside of
the boundaries of the Residence or Lot; (e) no such activity
increases the liability or casualty insurance obligation or premium
of the Association; and (f) such activities are consistent with the
residential character of the Project and conform with the provi-
sions of this Declaration. Until such time as Declarant no longer
has an ownership interest in Carlsbad Tract CT 00-16, no Owner or
the Association shall use a Residence as an office for the rental,
resale or leasing of Lots without the prior written consent of
Declarant.
Section 21. Parking. All vehicles in the Project shall
be parked in accordance with the following:
(a) Restrictions Regarding Private Streets. All
streets and parking areas within the Project are private and
are subject to all applicable laws, ordinances and regulations
of the Association and all governmental agencies having juris-
diction over the Project. Street parking is permitted on both
sides of the street within the Project, except in those areas
which have been specifically designated by the Board, Declar-
ant, and/or the City as "no parking" areas. On-street parking
spaces shall be available on a first-come, first-served basis
to all guests and visitors. Notwithstanding the foregoing, no
vehicle may be temporarily parked in any parking space in the
Common Area for more than ten (10) continuous hours unless
otherwise determined by the Board.
(b) Vehicles. No Owner shall park, store or keep
any large commercial type vehicle or any recreational vehicle
(including, but not limited to, campers, motorhomes, trailers,
boat trailers, boats, aircraft, mobile homes or other similar
vehicles) on his Lot, or any portion-of the Common Area unless
such Common Area has been designated as a recreational vehicle
storage area in this Declaration or a recorded Notice of
Annexation. Any standard passenger automobile (including
campers, vans and similar vehicles up to and including one ton
when used for everyday transportation) may be parked within an
18324.220-6024.FCM 092602 •65-
Owner's respective garage or on said Owner's driveway,
provided such automobile does not extend into or onto any
portion of the sidewalk, if any, or street. Parking may only
occur on a driveway, excluding the apron, which is equal to or
in excess of eighteen feet (18') in length. No Owner's
vehicle should be parked on a street within the Project if
available space exists in an Owner's garage or driveway for
the parking of such vehicle. The Board may adopt Rules and
Regulations regarding the use of garages and requirements for
parking therein.
(c) Repairs. No Owner shall conduct major repairs
to any motor vehicle of any kind whatsoever in his garage or
upon the Common Area, except for emergency repairs thereto and
then only to the extent necessary to enable the vehicle to be
moved to a proper repair facility. No Owner shall park or
store an inoperative vehicle on his or her Lot, other than in
the garage, for more than forty-eight (48) hours.
(d) Storage of Goods in Garages. Each Owner shall
keep his garage readily available for parking his respective
vehicle therein and shall not store any goods or materials
therein, nor use any portion of the garage for a workshop or
other use if such storage or use would prevent said Owner from
parking the number of four (4) wheel vehicles therein for
which said garage was originally designed and constructed by
Declarant (e.g., two). Unless otherwise allowed by the Board
or the City, each Owner shall maintain a minimum interior
space of his or her respective garage clear at all times to
accommodate parking of vehicles within such garage and no
business activity, day care, or garage sales shall be conduct-
ed within or from any garage in the Project.
(e) Garage Doors. All garage doors shall remain
closed at all times, except as reasonably required for entry
to and exit from the garage. Each Owner shall ensure that his
garage door opener is in proper working order at all times.
(f) Transfer of Interest. No Owner may lease, sub-
lease, sell or give any parking space (s) within his garage to
any individual who is not a resident within the Project.
Section 22. Regulation of Parking. Subject to the
rights of the Association, through its officers, committees and
agents, the Board is required to establish "parking" and "no park-
ing" areas within the Common Area, in accordance with Section
22658.2 of the California Vehicle Code, or any similar statute
hereafter enacted, as well as to enforce these parking limitations
by all means lawful for such enforcement, including, but not
limited to, the levying of fines and the citing and towing of
vehicles. The Board shall have the authority to tow away and store
any vehicle or similar equipment parked in violation of the above
18324.220-6024.FCM 092602 •66-
limitations whether the same shall belong to any Owner or a member
of his family or to any tenant, lessee, guest or invitee of any
Owner. Charges for such towing and storing shall be assessed
against the Owner of the Residence which is responsible for the
violation of such restrictions, and such assessment may be enforced
as a Compliance Assessment. Each Owner understands that the
Project has strict parking regulations that will be enforced by the
Association.
Section 23. Compliance With Management Documents. All
Owners shall be Members of the Association and shall comply with
the terms and conditions as set forth herein and in the Articles
and the By-Laws, and all Rules and Regulations of the Association
and Architectural Review Committee. No Owner shall transfer any
membership or interest in the Association, except upon the transfer
of the Lot to which it is appurtenant.
Section 24. Declarant's Improvements. Nothing in this
Article of elsewhere in this Declaration shall limit the -right of
Declarant to complete construction of any Improvements to the
Common Area and/or to any Lot owned by Declarant, or to alter the
foregoing or to construct such additional Improvements as Declarant
deems advisable prior to completion and sale of the entire Project.
The rights of Declarant under this Declaration may be assigned by
Declarant to any successor to all or any part of Declarant's
interest in the Project, as developer, by an express assignment
incorporated in a recorded deed transferring such interest to such
successor.
Section 25. Solar Heating. No solar heating panels or
other solar energy collection equipment shall be installed on any
portion of any Lot or Common Area, or any Improvement thereon, un-
less such equipment is installed in such location and in such
manner as to be obscured from the view of other persons in the
Project to the greatest degree practicable without significantly
decreasing its efficiency. No person shall install any such panels
or equipment without the prior written consent of the Architectural
Review Committee, which shall have the right to reasonably restrict
and determine the size, shape, color, style, materials or location
of any such panels or equipment within the Project, subject to the
provisions of California Civil Code Section 714, as same may be
amended, from time to time. At a minimum, any solar panels are to
be integrated with the roof design with the panels and frame
colored to match the roof or bronze anodized.
Section 26. Antennas. No radio station or shortwave
operators of any kind shall operate from any Lot. Except as
otherwise required by law, no Owner shall install, or cause to be
installed, or maintain any television, radio, "Citizens Band"
(CB.) antenna, satellite dish or other similar electronic
18324.220-6024.FCM 092602 •67-
receiving or broadcasting device (including those devices having a
diameter or diagonal measurement of one meter or less) in the
Project in such a manner as to be visible from the Common Area,
unless (1) approved by the Architectural Review Committee (which
approval for a video or television antenna, including a satellite
dish, shall not be unreasonably withheld or delayed but may include
restrictions which do not significantly increase the cost of the
installation, maintenance or use of the device or significantly
decrease its efficiency or performance or preclude reception of an
acceptable quality signal) and (2) in compliance with all applica-
ble ordinances of the City, California Statutes (e.g.. Civil Code
Section 1376), and Federal Regulations, as each may be amended or
revised.
Section 27. Leasing. No Owner shall be permitted to
rent or lease his Lot for transient or hotel purposes or for a
period of less than thirty (30) days. All rental and lease agree-
ments shall be in writing and shall provide that the terms of such
agreement shall be subject in all respects- to the provisions of
this Declaration, By-Laws and Articles, and that any failure by the
tenant or lessee to comply with the terms of such documents shall
constitute a default under such agreement.
Section 28 . Drilling. No oil drilling, oil development
operations, oil refining, quarrying or mining operations of any
kind shall be permitted upon or in any Lot or the Common Area, nor
shall oil wells, tanks, tunnels or mineral ex:cavations be permitted
upon or in any Lot or the Common Area. No derrick or other
structure designed for use in boring for oil, water or natural gas
shall be erected, maintained or permitted upon any Lot.
Section 29. Trash. No rubbish, trash, garbage or other
waste material shall be kept or permitted upon any portion of the
Project, except in covered sanitary containers approved by the City
located in appropriate areas screened and concealed from view by a
fence, wall or other screen approved by the Architectural Review
Committee, or in such portions of the Project, if any, improved
with trash receptacles provided for the use of all Owners, and no
odor shall be permitted to arise therefrom so as to render the
Project, or any portion thereof, unsanitary, unsightly, offensive
or detrimental to any other property in the vicinity thereof or to
its occupants. All such refuse which is put out for pickup, shall
be in conformance with all appropriate standards established by the
City or governing agency. In the event trash is collected from each
individual Lot, appropriate sanitary containers may be exposed to
the view of neighboring Residences only when set out on the streets
no earlier than 5:00 p.m. the night prior to the trash pick-up day
and removed from the street within ten (10) hours after pickup,
unless otherwise modified by the Board.
18324.220-6024.FCM 092602 -68-
Section 30. Drainage. There shall be no interference
with the established drainage pattern over any Lot within the
Project as to affect any other Lot or the Common Area, unless
adequate alternative provision is made for proper drainage and is
approved in writing by the Architectural Review Committee. For
purposes hereof, "established" drainage is defined as the drainage
which exists at the time such Lot is conveyed (escrow closed) to a
purchaser from Declarant, or grading patterns that are shown on
plans approved by the Architectural Review Committee. Each Owner
further agrees not to obstruct, retard or otherwise interfere with,
in any manner whatsoever, any drainage swales, or to perform any
grading or construction on his Lot which may result in creating an
excessive amount of surface water runoff (i.e., an amount of water
beyond the flow originally intended and provided for by the grading
plans prepared by Declarant for the Project) to flow into said
drainage swales. Except as may be otherwise maintained by the
Association, each Owner of a Lot shall, at his sole cost and
expense, maintain that portion of any drainage swale or other
drainage devices located on his respective Lot.
Section 31. Prohibition Against Further Subdivision.
No Owner shall make any conveyance, execute any document or map, or
enter into any contract which shall purport to further subdivide
any Lot in any manner whatsoever, including, without limitation,
subdividing such Lot into additional lots, condominiums, stock
cooperatives or timeshare uses, whether by map, deed or contract.
Any such conveyance, document, map or contract shall be void and of
no force or effect whatsoever.
Section 32. Patios and Balconies. Patios and bal-
conies, and all furniture, plants and other improvements situated
therein, shall be kept at all times in a neat, clean, safe and
attractive condition. Clothes, towels, blankets, laundry, or
clotheslines shall not be placed on or hung from any patio or
balcony, or any portion of the Common Area, where doing so would be
visible from any other Lot, the Common Area or the public. Patios
and balconies shall not be used for storage of any items deemed
inappropriate by the Architectural Review Committee.
Section 33. Exemption of Declarant. Nothing in this
Article or elsewhere in this Declaration shall limit, restrict,
abridge or control, in any manner whatsoever, the rights of De-
clarant to complete the planning, development, grading, construc-
tion, advertising, marketing, leasing and sales of the Lots, and
all other property within the Project (including any property which
may be annexed thereto pursuant to the provisions of this Declara-
tion) , including, without limitation, the following specific
rights, which may be exercised by Declarant, or by its agents and
employees, in conjunction with such development and marketing, for
a period of five (5) years from the date of recordation of this
18324.220-6024.FCM 092602 •69-
Declaration, or until all Lots in Carlsbad Tract CT 00-16 are sold
(and escrows closed), whichever shall first occur:
(a) The right to maintain and operate one (1) or
more advertising, sales or leasing office(s) located upon any
Lot(s) owned by Declarant or upon any Common Area without
payment of rent or approval of the Association;
(b) The right to post and display from any Lot(s)
owned by Declarant or from any Common Area any sign, flag,
banner, billboard or other advertising which Declarant may, in
its sole.discretion, deem appropriate, irrespective of size,
color, shape or materials of such items, except to the extent
that the exercise of said right conflicts with any provisions
of the City's Municipal Code or other applicable governmental
regulations;
(c) The right to install, place, replace, con-
struct, reconstruct, modify or remove any Improvement from any
Lot owned by Declarant or from any Common Area, as Declarant
may, in its sole discretion, deem appropriate; provided that
in the event Declarant removes any Association owned Improve-
ment from any Common Area without the express prior written
consent of the Board, Declarant shall replace such Improvement
with an Improvement of substantially similar value,. appearance
and utility within a reasonable period following completion of
any work necessitating the removal of the Improvement;
(d) The right to conduct any commercial activity
upon any Lot owned by Declarant or upon any Common Area which
reasonably relates to the development, marketing, leasing or
sales of the Lots in the Project; and
(e) The right to park vehicles upon any Lot owned
by Declarant or upon any Common Area.
All or any portion of the rights of Declarant herein and
elsewhere in this Declaration may be assigned by Declarant to any
successor-in-interest in the Project, including the Annexation
Property, by an express written assignment recorded in the Office
of the County Recorder.
Section 34. No Easements for View Purposes; Dis-
claimer . The Article herein entitled "Architectural Review -
Approval," sets forth procedures for the approval of Improvements
which may be constructed upon Lots in the Project which are con-
sistent with the architectural standards adopted, from time to
time, pursuant to said Article. The architectural standards may
have some effect on views and the passage of light and air to
individual Lots. However, by promulgation and enforcement of the
18324.220-6024.FCM 092602 -70-
architectural standards, or otherwise, neither Declarant, the Board
nor the Architectural Review Committee, or the members, employees
or consultants of any of the foregoing, have made any representa-
tions whatsoever concerning the view, if any, that a particular Lot
or other Improvement thereon will enjoy. There are no express or
implied easements or rights whatsoever appurtenant to any Lot for
view purposes, or for the passage of light and air. Each Owner, by
accepting a deed to a Lot, hereby expressly acknowledges and agrees
that further construction within the Project may impair the view
from such Owner's Lot, and each Owner hereby expressly consents to
any such impairment. The City makes no claim, warranty, or
guarantee that views from any Lot will be preserved as development
of surrounding properties occurs.
Section 35. Use of Front Entrance to Proiect. The
front entrance to the Project located near the intersection of
Avenida Encinas and Macadamia Drive is intended for the use of
pedestrians, bicyclists, motorcycles, passenger vehicles, and small
trucks only. The Board may adopt Rules and Regulations to prohibit
moving vans, delivery trucks, and other specified vehicles from
using the front entrance to the Project and require such vehicles
to use the secondary entrance to the Project located near the
intersection of Avenida Encinas and Raintree Drive.
Section 36. No Warranty of Enforceability. While
Declarant has no reason to believe that any of the Protective
Covenants contained in this Article or elsewhere in this Declara-
tion are or may be invalid or unenforceable for any reason or to
any extent. Declarant makes no warranty or representation as to the
present, or future validity or enforceability of any such Protective
Covenants. Any Owner acquiring a Lot in the Project in reliance on
one or more of such Protective Covenants shall assume all risks of
the validity and enforceability thereof and, by acquiring the Lot,
agrees to hold Declarant harmless therefrom.
ARTICLE IX
ARCHITECTURAL REVIEW - APPROVAL
Section 1. Exemptions From Architectural Review. Ex-
cept as otherwise provided herein, all Improvements to Lots shall
be subject to architectural approval by the Association in accor-
dance with the provisions of this Declaration. Notwithstanding the
foregoing. Declarant shall be exempt from compliance with any of
the provisions of this Article as they may relate to the original
construction and development of the Project by Declarant in
accordance with the plans approved by the City; provided, however,
if Declarant shall desire to construct any Improvements to the
exterior of a Residence after such Residence has been completed and
approved by the City, Declarant shall obtain approval for such
18324.220-6024.FCM 092602 -71-
Improvements from the City; and, provided further, if Declarant
shall retain a Residence for personal use, any Improvements to the
exterior of such Residence shall be subject to architectural ap-
proval pursuant to this Article.
Section 2. Architectural Review. Except as may
otherwise be permitted hereunder, no person shall install, modify,
or change any Improvement, including, without limitation, solar
heating panels, lighting, shades, screens, awnings, patio covers,
decorations, fences, screen doors, aerials, antennas, radio or
television broadcasting or receiving devices, air conditioning
units, or change or otherwise alter the exterior of any Residence,
including exterior colors or appurtenant Improvements, unless same
is approved by the Architectural Review Committee and the City, if
necessary, and/or for the purposes of proper maintenance and
repair. For the purposes of this Section, the term "exterior" shall
mean any outside wall, outside surface, roof, outside door, patio,
balcony, deck, garage or other outside structure of said Residence
which is visible to others in the Project and/or to the public.
Section 3 . Architectural Review Committee . The Archi -
tectural Review Committee is hereby authorized with the rights and
powers set forth in this Article. Said Committee shall consist of
not less than three (3) members, nor more than five (5) members,
and each initial member shall serve until the first election of the
Board. In the event of the failure or inability of any member of
the Architectural Review Committee to act, the remaining members
shall designate a successor who shall serve for the remainder of
the term of the member he replaces. The Declarant shall appoint all
of the original members of the Architectural Review Committee, and
replacements thereto as long as Declarant has such power in
accordance with the provisions herein. Further, Declarant reserves
the power to appoint a majority of the members of the Architectural
Review Committee until the fifth (5th) anniversary of the issuance
of the Final Subdivision Public Report for the first phase of the
Project. After one (1) year from the date of the issuance of the
Final Subdivision Public Report for the Project, the Board shall
have the power to appoint one (1) member to the Architectural
Review Committee until ninety percent (90%) of the Lots in Carlsbad
Tract CT 00-16 have been sold, or until the fifth anniversary date
of the issuance of the Final Subdivision Public Report for the
first Phase of the Project, whichever first occurs. Thereafter, the
Board shall have the power to appoint all of the members of the
Architectural Review Committee. All members appointed to the Archi-
tectural Review Committee by the Board shall be from the membership
of the Association, unless otherwise determined by the Board.
Members appointed to the Architectural Review Committee by the De-
clarant, however, need not be members of the Association. No
member of the Architectural Review Committee shall be liable to any
18324.220-6024.FCM 092602 -72-
person for his decisions or failure to act in making decisions as
a member of the Architectural Review Committee. Declarant may, in
its discretion and at any time, assign to the Association by
written assignment its powers of removal and appointment with
respect to the Architectural Review Committee, subject to such
terms and conditions regarding the exercise thereof as Declarant
may impose.
Section 4. Meetings of the Architectural Review Com-
mittee . The Architectural Review Committee shall meet, from time to
time, as necessary to perform its duties hereunder. The Architec-
tural Review Committee may, by a majority vote of the members
(except the right to approve any Improvement or architectural
submittal required by this Declaration) thereof, delegate any of
its rights and responsibilities hereunder to one (1) or more duly
licensed architects, who shall have full authority to act on behalf
of the Architectural Review Committee on all matters so delegated.
Section 5. Architectural Standards/Guidelines. The
Board (or Architectural Review Committee if authorized by a
majority of the Board) may, from time to time, adopt architectural
standards/guidelines to be administered through the Architectural
Review Committee for use by said Committee in reviewing plans and
specifications for proposed Improvements to an Owner's Lot (said
standards/guidelines do not eliminate the need for compliance with
Section 8 hereinbelow regarding obtaining City review and approval,
as required). The architectural standards/guidelines may include,
without limitation, those guidelines, procedures, limitations and
restrictions upon Owners set forth below:
(a) The placement, reconstruction, addition, change
or alteration of any Improvement on a Lot or the exterior of
a Residence, including the nature, kind, shape, materials, ex-
terior color, location, and height of any Improvement,
including landscaping;
(b) A description of the type of such construction,
additions, changes or alterations which, if completed in
conformity with the architectural standards, do not require
approval of the Architectural Review Committee;
(c) Conformity of completed Improvements to plans
and specifications approved by' the Architectural Review
Committee;
(d) Time limitations for the completion of the
Improvements for which approval is required pursuant to the
architectural standards;
18324.220-6024.FCM 092602 •73-
(e) Procedures for submission of plans and speci-
fications submitted for Architectural Review Committee review,
including, without limitation, floor plans, site plans,
drainage plans, elevation drawings, landscape plans and a
description or samples of exterior colors and materials;
(f) Restrictions controlling the species and place-
ment of any trees, plants, shrubbery, ground cover, etc., to
be placed, planted, irrigated and maintained in the Project
(i.e., approved landscape palettes);
(g) Restrictions controlling the placement of any
trees, plants, shrubbery, ground cover, etc., to be placed
planted, irrigated and maintained in the Project (including
requirements regarding the use of root barriers and/or other
similar devices to prevent damage to Residences, hardscape and
other Improvements); and
(h) A reasonable schedule of fees for submission of
plans and specifications or bonds (or cash deposits) to ensure
proper completion and clean up of the anticipated work and
compliance with the approved plans.
The architectural standards may be periodically updated or revised
by the Board, as the Board, in its reasonable discretion, may deem
appropriate. The Architectural Review Committee shall maintain a
copy of the then current architectural standards on file at all
times, and shall provide each Owner with a copy of the architectur-
al standards upon written request. The Board shall establish a
reasonable fee for copies of the architectural standards, and other
related materials, to cover costs of reproduction, administration
and handling.
Section 6. Architectural Approval - Review of Plans
and Specifications. The Architectural Review Committee shall comply
with the Architectural guidelines/standards adopted by the Board
(including any supplementary Rules and Regulations thereto adopted
by the Board) to examine any request made pursuant to this Article,
in order to ensure that the proposed plans are in conformance with
and are harmonious to the exterior design and existing materials of
the buildings in the Project. The Architectural Review Committee
shall consider and act upon any and all plans and specifications
submitted for its approval under this Declaration, and perform such
other duties as, from time to time, shall be assigned to it by the
Board, including the inspection of construction and progress to
ensure its conformance with the plans approved by the Architectural
Review Committee. No construction, alteration, grading, addition,
excavation, demolition, modification, decoration, redecoration or
reconstruction of an Improvement shall be commenced or maintained
by any Owner until the plans and specifications therefor showing
18324.220-6024.FCM 092602 .74.
the nature, kind, shape, height, width, color, materials and
location of the same shall have been submitted to the Architectural
Review Committee and approved in writing by the Architectural
Review Committee and approved by the City as required. Each Owner
acknowledges and agrees that approval from the City alone is not
sufficient to comply with the requirements of this Declaration. The
initial address for submission of such plans and specifications
shall be determined by the Board. The Architectural Review
Committee shall approve the plans and specifications submitted for
its approval only if it deems that: (a) the construction, alter-
ations or additions contemplated thereby and the locations
indicated will not be detrimental to the appearance of the
surrounding area of the Project as a whole; (b) the appearance of
any structure affected thereby will be in harmony with surrounding
structures; (c) the construction thereof will not detract from the
beauty, wholesomeness and attractiveness of the Common Area, or the
enjoyment thereof by the Owners; (d) the upkeep and maintenance
thereof will not become a burden on the Association; and (e) the
plans and specifications substantially comply with the Architectur-
al standards/guidelines. The Architectural Review Committee may
condition its approval of proposals or plans and specifications for
any Improvement: (i) on such changes therein as it deems ap-
propriate, (ii) upon the agreement by the person submitting the
same to grant appropriate easements to the Association for the
maintenance of the Improvement, or (iii) upon the agreement of the
person submitting the same to reimburse the Association for the
cost of such maintenance, or all of the above, and may require
submission of additional plans and specifications or other in-
formation prior to approving or disapproving the submission.
The Architectural Review Committee may also issue rules
or guidelines setting forth procedures for submission of plans for
approval, requiring a payment of a fee to the Association to
accompany each submission of plans and specifications, or ad-
ditional factors which it will take into consideration in reviewing
submissions which are consistent with the Architectural stan-
dards/guidelines .
The Architectural Review Committee may require such
detail in plans and specifications submitted for its review as it
deems proper, including, without limitation, floor plans, site
plans, drainage plans, elevation drawings, landscape plans .and
description or samples of exterior material and colors.
Section 7. Decisions of the Architectural Review Com-
mittee . Until receipt by the Architectural Review Committee of any
required plans and specifications, and such other information as
may be required in Section 6 above, the Architectural Review
Committee may postpone review of any plans submitted for approval.
Decisions of the Architectural Review Committee and the reasons
18324.220-6024.FCM 092602 •75-
therefor should be transmitted by the Architectural Review
Committee to the applicant, at the address set forth in the ap-
plication for approval, within forty-five (45) days after receipt
by the Architectural Review Committee of all plans, specifications
and materials required. Any application submitted pursuant to the
provisions of Section 6 above shall be deemed approved, unless
written disapproval or a request for additional information or
materials by the Architectural Review Committee shall have been
transmitted to the applicant within forty-five (45) days after the
receipt by the Architectural Review Committee of all required
materials.
Section 8. Submittal to City - Right of Architectural
Review Committee to Review. Upon obtaining the written approval of
the Architectural Review Committee, the Owner shall thereafter
submit the plans and specifications to the City for review and
approval as a Planned Development Permit Amendment and/or building
permits. In the event that all necessary approvals of the City for
the issuance of a building permit or other permits required to
commence the work contemplated in the plans and specifications are
not obtained within six (6) months from the date of approval by the
Architectural Review Committee, the Architectural Review Committee
shall have the right, but not the obligation, to re-review all
previously approved plans and specifications, and approve, deny, or
modify said plans and specifications. In addition, in the event
that the City requires modifications to the plans and specifica-
tions previously approved by the Architectural Review Committee,
the Owner shall submit to the Architectural Review Committee all
modifications to the plans and specifications previously approved
by the Architectural Review Committee. In the event the Owner is
obligated to resubmit plans and specifications to the Architectural
Review Committee to reflect the modifications required by the City,
said Committee shall have the right to review and approve, deny,
and/or impose further conditions on any such modifications and the
plans and specifications.
Section 9. Approval of City. Approval of any proposed
or existing Improvement, or completion of an Improvement, by the
Architectural Review Committee or the Board shall not be construed
to warrant or represent in any way that the Improvement was
approved by or complies with the minimum standards of the City.
Similarly, approval of any proposed or existing Improvement by the
City shall not be construed to constitute approval of such
Improvement by the Architectural Review Committee or the Board.
Section 10. Conflicts Between City and Architectural
Review Committee. In the event of any conflict in the conditions of
approval of any proposed Improvements imposed by the City and the
Architectural Review Committee, the more restrictive of such
conditions shall be controlling. Further, nothing herein shall
18324.220-6024.FCM 092602 •76-
limit the Architectural Review Committee from imposing conditions
of approval of any proposed Improvements which are more restrictive
than conditions as may be imposed by the City.
Section 11. No Waiver of Future Approvals. The approv-
al of the Architectural Review Committee to any submissions for any
work done, or proposed to be done, or in connection with any other
matter requiring the approval or consent of the Architectural
Review Committee, shall not be deemed to constitute a waiver of any
right to withhold approval or consent of any similar proposals,
plans and specifications, drawings or other matters subsequently or
additionally submitted for approval.
Section 12. Compensation of Members. The members of
the Architectural Review Committee shall receive no compensation
for services rendered, other than reimbursement by the Association
for expenses incurred in the performance of such members' duties
hereunder.
Section 13 . Variances. Where circumstances such as to-
pography, location of buildings, location of landscaping or other
matters require, the Architectural Review Committee, by the vote or
written assent of a majority of the members thereof, may allow
reasonable variances as to any of the Protective Covenants con-
tained in this Declaration or provisions under the rules and
regulations promulgated by the Architectural Review Committee, on
such terms and conditions as it shall require. The granting of such
a variance shall not operate to waive any of the terms and
provisions of this Declaration for any purpose, except as to the
particular Lot and particular provision hereof covered by the
variance, nor shall it affect in any way the Owner's obligation to
comply with all governmental laws and regulations affecting the
Owner's use of his Lot, including, but not limited to, zoning
ordinances. Lot setback lines or requirements imposed by the City
or other governmental authority.
Section 14. Inspection of Work. Upon consent of the
Owner, which consent shall not be unreasonably withheld, any member
or authorized representative of the Architectural Review Committee
may, at any reasonable hour and upon reasonable notice, enter and
inspect any Lot which has been the subject matter of an approval of
a. submission for an Improvement to his Lot. Such entry shall be
made with as little inconvenience to the Owner as reasonably
possible, and any damage caused thereby shall be repaired by the
Association. If the Architectural Review Committee finds that such
work was not done in substantial compliance with the approved plans
and specifications, it shall notify the Owner in writing of_ such
noncompliance, specifying the particulars of noncompliance and
shall require the Owner to remedy the same within thirty (30) days
from the date of notification of such noncompliance. If a noncom-
18324.220-6024.FCM 092602 -77-
pliance exists, the Board, after Notice and Hearing, may le"vy a
Compliance Assessment against such Owner for the costs of removing
or remedying such noncompliance.
Section 15. Non-Liability of Architectural Review Com-
mittee Members. Neither Declarant, the Association, the Board or
the Architectural Review Committee, or the members or designated
representatives thereof, shall be liable for damages to any Owner
submitting plans or specifications to them for approval, or to any
Owner in the Project affected by this Declaration by reason of
mistake in judgment, negligence or nonfeasance, unless due to
willful misconduct or bad faith of the Architectural Review Com-
mittee. The Architectural Review Committee's approval or disap-
proval of a submission shall be based solely on the considerations
set forth in this Article, and in such rules and regulations as may
be promulgated by the Architectural Review Committee, and the
Architectural Review Committee shall not be responsible for
reviewing, nor shall its approval of any plan or design be deemed
approval of, any plans or design from the standpoint of structural
safety and conformance with building or other codes.
Section 16. Appeal. In the event plans and specifica-
tions submitted to the Architectural Review Committee are disap-
proved, the party making such submission may appeal in writing to
the Board. The written request must be received by the Board not
more than thirty (3 0) days following the final decision of the
Architectural Review Committee. The Board shall submit such request
to the Architectural Review Committee for review, and the written
recommendations of the Architectural Review Committee will be
submitted to the Board. Within forty-five (45) days following
receipt of the request for appeal, the Board shall render its
written decision. The failure by the Board to render a decision
within said forty-five (45) day period shall be deemed a decision
in favor of the party making such submission.
ARTICLE X
REPAIR AND MAINTENANCE
Section 1. Repair and Maintenance by Association.
Without limiting the generality of the Article herein entitled
"Powers and Duties of the Association," the Association shall have
the duty to maintain, in a neat, clean, safe, sanitary, attractive
and orderly condition at all times, the Common Area designated by
the Board, in this Declaration, or in any subsequent Notice(s) of
Annexation, as generally indicated hereinbelow:
(a) The Common Area (and all Improvements thereon)
to be maintained, landscaped, repaired, improved, restored and
replaced in a neat, clean, safe, attractive and orderly condi-
18324.220-5024.FCM 092602 •78-
tion at all times shall iriclude, but not be limited to, the
following:
(1) Maintaining the private streets and paseos
within Carlsbad Tract CT 00-16 upon the conveyance of
such streets (or access easement areas) to the Associa-
tion; Declarant shall be responsible for maintaining the
private streets prior to the conveyance of the streets
(or access easement areas) to the Association.
(2) Maintaining the open space areas designat-
ed as such on Carlsbad Tract CT 00-16 and/or conveyed to
the Association in fee or by easement.
(3) Maintaining the landscaped areas depicted
on Exhibit "G" attached hereto (including, without
limitation, the concrete or redwood bands that act as
demarcations between the Common Area and the Lots).
Notwithstanding the depiction of multiple phases of
landscaped areas, the Association will only have the
maintenance obligation for those portions of the land-
scaped areas associated with that certain DRE Phase of
development where assessments have commenced against the
Lots in such Phase.
(4) Maintaining the recreation/open space area
within the Project and all Improvements constructed
thereon, including, without limitation, any and all
swimming pools, spas, restrooms, basketball and volley-
ball courts, play areas for children, fire pits, and
bicycle racks, if any, located thereon.
(5) Maintaining the recreational vehicle
storage lot(s) within the Project and any and all
Improvements constructed thereon, if any, in a condition
comparable to the condition initially approved by the
City.
(6) Maintaining those portions of the pedes-
trian trails depicted on Exhibit "C" hereto, over which
the City has been granted an easement for use by the
general public, in a condition comparable to the condi-
tion initially approved by the City, unless the City
accepts the dedication of, and agrees to maintain, such
pedestrian trails. The Association shall cooperate with
the City, at no cost to the Association, if the City
desires to modify, revise, and/or remove that certain
pedestrian trail depicted on Lot 239 of the recorded
tract map.
18324.220-6024.FCM 092602 -79-
(7) Maintaining one bus stop and trash re-
ceptacle at said bus stop (see on Exhibit "H" hereto) in
a condition comparable to the condition initially
approved by the City and required by the City (i.e., only
the bus stop if required to be maintained by the Associa-
tion in the Project conditions of approval).
(8) Maintaining all Project entry gates and
monumentation in a condition comparable to the condition
initially approved by the City.
(9) Maintaining all kiosk mailboxes and
private light standards.
(10) Taking all action necessary to keep the
Common Area neat, clean and generally free of trash,
rubbish, graffiti, and debris.
(11) Cleaning any debris from Common Area
drainage swales or devices, and conducting regular
inspections of all Common Area drainage devices.
(12) Maintaining all private sewer, drainage,
and irrigation facilities, easements, and improvements in
the Common Area (excluding any private laterals servicing
only one Lot) , if any. As required by the City, such
maintenance shall include, among other things, maintain-
ing all media filtration devices (e.g., catch basin
filters, oil/water separators) originally installed by
Declarant on storm water inlets within the Project. The
private sewer pump station shall be maintained by the
City and/or other applicable entity other than the
.Association;
(13) Maintaining all private street lights and
Common.Area lighting facilities, if any, required by the
City;
(14) Unless otherwise maintained, maintaining
the exterior surfaces (defined to mean the side fronting
any public right-of-way or the Common Area), structural
integrity, and the top portion of all Project perimeter
block walls, fences, sound walls, and retaining walls
originally constructed by Declarant and approved by the
City (as depicted on Exhibit "D").
(15) Maintaining all other areas or other
Improvements of whatever nature as may, from time to
time, be set forth in any Notice of Annexation and/or
designated by the Board.
18324.220-6024.FCM 092602 •80-
(16) Performing all necessary tasks required to
conform with applicable City and/or State regulations.
(b) Maintain all other areas, facilities, furni-
ture, equipment, services or aesthetic components of whatso-
ever nature as may, from time to time, be requested by the
vote or written consent of three-fourths (3/4) of the voting
power of the Members or as required by documents recorded by
the Declarant; and
(c) Except as otherwise herein specified as being
paid by individual Owners, the costs of maintenance, repair,
restoration and replacement as provided in this Article shall
be Common Expenses and shall be paid out of the general fund
of the Association.
Section 2. Maintenance Manual. The Declarant may
deliver to the Board a "Maintenance Manual" which sets forth the
Declarant's and its consultants' recommended frequency of inspec-
tions and maintenance of various components of the Common Area.
The Board shall, during its meetings, determine whether the
recommended inspections and maintenance activities have -been
followed, and, if any such recommendations have not been followed,
what corrective steps, if any, need to be taken to assure proper
inspection and maintenance of the Common Area. The Board shall
keep a record of such determinations in the Board's minutes. The
Board shall, from time to time, make appropriate revisions to the
Maintenance Manual. The Board shall review the Maintenance Manual
for appropriate revisions at least on an annual basis after the
Board has prepared the annual pro forma budget and reserve study
required by the By-Laws.
In the absence of a Maintenance Manual, the Board may
have the Common Area inspected at least once every three (3) years
to (a) determine whether the Common Area is being maintained
adequately in accordance with the standards of maintenance
established herein, (b) identify the condition of the Common Area
and any Improvements thereon, including the existence of any
hazards or defects, and the need for performing additional
maintenance, refurbishment, replacement or repair, and (c)
recommend preventative actions which may be taken to reduce
potential maintenance costs to be incurred in the future. The
Board may employ such experts and consultants as are necessary to
perform such inspection. The Board may have a report of the
results of the inspection prepared. If determined appropriate by
the Board, the report shall be furnished to Owners within the time
set forth for furnishing Owners with the budget. The report should
include at least the following:
18324.220-6024.FCM 092602 -81-
(a) A description of the condition of the Common
Area, including a list of items inspected and the status of
maintenance, repair and need for replacement of all such
items;
(b) A description of all maintenance, repair and
replacement planned for the ensuing fiscal year and included
in the budget;
(c) If any maintenance, repair or replacement is to
be deferred, the reason for such deferral;
(d) A summary of all reports of inspections
performed by any expert or consultant employed by the Board to
perform inspections;
(e) A report of the status of compliance with the
maintenance, replacement and repair needs set forth in the
inspection report for preceding years; and
(f) Such other matters as the Board deems appropri-
ate.
Section 3. Maintenance of Phases Subiect to Construc-
tion Easement. Notwithstanding anything stated to the contrary in
this Declaration, the Association shall have no obligation to
maintain or repair any portion of a Phase until commencement of the
Association's Assessments against the Lots within such Phase.
Should any Improvements overlap between Phases, the Association
shall only be responsible to maintain that portion of such
Improvements which lie in the Phase(s) in which the Association's
maintenance obligations have commenced.
Section 4 . . Repair and Maintenance by Owner. Except as
the Association shall be obligated to maintain and repair as
provided in this Declaration (e.g., see Exhibit "G" attached
hereto), each Owner shall (at his own cost and expense):
(a) Maintain his Lot and the Residence located
thereon, including, without limitation, all landscaping
(including those portions of the Common Area adjacent to said
Owner's specific Lot as depicted on Exhibit "I" attached
hereto), fences, roofs, patios, patio covers, decks, deck
covers, balconies, windows, window frames, screens, locks and
doors of his Residence, landscaping and irrigation improve-
ments, irrigation lines, sewer laterals, and all other
Improvements located on or servicing such Owner's Lot, in a
neat, clean, safe and attractive condition at all times, and
make all repairs as they may be required. There is hereby
created, established and granted an easement appurtenant to
18324.220-6024.FCM 092602 -82-
the applicable Lots over those portions of Common Area
described and/or depicted on Exhibit "I" for purposes of
irrigation and landscape;
(b) Each Owner of a Lot shall, within six (6)
months after the close of escrow for the sale of a Lot to
Owner from Declarant, complete installation of the landscaping
in the yard areas of Owner's Lot that were not originally
installed by Declarant. Thereafter, each Owner shall maintain
his or her respective Lot and ensure the landscaping (e.g.,
trees, plants, grass, and other vegetation) is properly
maintained and periodically replaced when necessary. The Board
may adopt Rules and Regulations proposed by the Architectural
Review Committee to regulate landscaping permitted within the
Project. In the event that any Owner shall fail to install and
maintain landscaping, including all slope areas within the
Lot, if any, in conformance with the Rules and Regulations, or
shall allow his landscaping to deteriorate to a dangerous,
unsafe, unsightly or unattractive condition, the Board, after
Notice and Hearing, may enter such Owner's property for the
purpose of remedying the condition, and such Owner shall
promptly reimburse the Association for the cost thereof. Such
cost may be levied by the Board as a Compliance Assessment. No
Owner may modify, change, tamper with, or alter in any manner
the Common Area, without the prior written approval of the
Board, which approval may be withheld in the Board's sole and
absolute discretion.
Section 5. Maintenance of Public Utilities. Nothing
contained herein shall require or obligate the Association to
maintain, replace or restore the underground facilities or public
utilities which are located within easements in the Common Area
owned by such public utilities. However, the Association shall take
such steps as are necessary or convenient to ensure that such
facilities are properly maintained, replaced or restored by such
public utilities.
Section 6. Damage and Destruction Affecting a Resi-
dence - Duty to Rebuild. In the event any Residence is damaged or
destroyed by fire or other casualty, it shall be the duty of the
Owner of such Residence to repair or reconstruct said Residence in
a manner which will restore it to its condition and appearance
immediately prior in time to such damage or destruction, or as
otherwise approved by the Architectural Review Committee. The
Architectural Review Committee shall not approve such variance if
the finished Residence would be inharmonious or out of keeping with
the overall architectural theme of the Project, or with the
exterior design of any adjacent Residences. The affected Owner
shall be obligated to proceed, with all due diligence hereunder,
and shall be responsible for commencing reconstruction within four
18324.220-6024.FCM 092602 •83-
(4) months after the damage occurs, and completing such reconstruc-
tion as soon as reasonably possible thereafter.
Section 7. Owners' Cooperation for Maintenance. The
Owners of Residences which are located on adjacent Lots shall
cooperate with each other as is reasonably necessary to enable each
Owner to properly maintain and repair his respective Residence
and/or to mitigate any damage to his Residence.
ARTICLE XI
ENVIRONMENTAL AND. OTHER DISCLOSURES
AND REQUIREMENTS
Section 1. Environmental Requirements.
(a) Duties and Obligations of the Owners. To
reduce and/or eliminate negative effects on the environment
within the Project, all Owners and/or tenants, as applicable,
shall:
(1) Coordinate efforts to establish or work
with established disposal programs to remove and properly
dispose of toxic and hazardous waste products.
(2) Not discharge toxic chemicals or hydrocar-
bon compounds such as gasoline, motor oil, antifreeze,
solvents, paints, paint thinners, wood preservatives, and
other such fluids into any streets, public or private, or
into storm drain or storm water conveyance systems. Use
and disposal of pesticides, fungicides, herbicides,
insecticides, fertilizers and other such chemical
treatments shall meet Federal, State, County, and City
requirements as prescribed in their respective contain-
ers .
(3) Use best management practices, as de-
scribed in the "California Storm Water Best Management
Practices Handbook" or equivalent guidelines, to elimi-
nate or reduce surface, pollutants when planning any
changes to the landscaping and surface improvements to
the Project.
(4) Comply with the drainage requirements of
SP 210, City ordinances and standards, the Mello II
Segment of the Local Coastal Program, and all applicable
National Pollution Discharge Elimination System (NPDES)
requirements.
18324.220-6024.FCM 092602 !4-
(b) Duties and Obligations of the Association.
Notwithstanding anything to the contrary set forth herein, the
Association shall:
(1) Contract with a contractor to periodically
perform the following activities, subject to the follow-
ing limitations, to minimize the pollution of storm drain
water:
i) If applicable, maintain stenciling
on all on-site storm drain inlets, "NO DUMPING,
DRAINS TO OCEAN";
ii) Minimize irrigation runoff by
using controllers to provide several short watering
cycles;
iii) Immediately correct any irrigation
design or maintenance deficiencies which cause
excessive runoff;
iv) Prohibit application of fertiliz-
ers within three (3) days prior to an anticipated
rain;
v) Follow all fertilizer applications
with light irrigation to permit fertilizer to soak
into the landscaped area; and
vi) Dispose of waste properly.
(2) Clean out all on-site storm drains each
year, once prior to October 1 (i.e., before the rainy
season) and once in January, and conduct any additional
cleanings, as may be required by the City Engineer.
(3) Comply with the drainage requirements of
SP 210, City ordinances and standards, the Mello II
Segment of the Local Coastal Program, and all applicable
National Pollution Discharge Elimination System (NPDES)
requirements.
18324.220-6024.FCM 092602 •85-
ARTICLE XII
DAMAGE OR DESTRUCTION TO
THE COMMON AREA
Section 1. Restoration of Damaged Common Area. Except
as otherwise provided in Section 2 hereinbelow, damage to or de-
struction of all or any portion of the Common Area shall be handled
in the following manner:
(a) In the event of damage to or destruction of the
Common Area, and the insurance proceeds are sufficient to
effect total restoration, the Association shall, as promptly
as is practical, cause the Common Area to be repaired and
reconstructed in a good workmanlike manner to its condition
prior to such damage or destruction.
(b) If the insurance proceeds available are at
least ninety percent (90%) of the estimated cost of total
repair and reconstruction to the Common Area, the Association
shall, as promptly as practical, cause such Common Area to be
repaired and reconstructed in a good workmanlike manner to its
condition prior to the'damage or destruction, and the differ-
ence between the insurance proceeds and the actual cost shall
be levied by the Association as a Special Assessment against
each of the Lots on an equal basis.
(c) If the insurance proceeds available are less
than ninety percent (90%) of the estimated cost of total
repair and reconstruction to the Common Area, the Owners
shall, by the written consent or vote of a majority of the
Owners, determine whether:
(1) To restore the Common Area as promptly as
practical to its condition prior to the damage or
destruction, and to raise the necessary funds over and
above the insurance proceeds available by levying Assess-
ments against each of the Lots on an equal basis; or
(2) To restore the Common Area in a way which
utilizes all available proceeds and an additional amount
not in excess of ten percent (10%) of the estimated cost
of total reconstruction and repair to the Common Area,
and which is assessable as provided above to all Lots,
but which is less expensive than restoring the Common
Area to its condition prior to the damage or destruction.
18324.220-6024.FCM 092602 -86-
Section 2. Election by Owners Not to Restore Damaged
Common Area.
(a) Notwithstanding the provisions set forth in
Section 1 hereinabove, in the event sixty-seven percent (67%)
of the Owners, other than Declarant, and sixty-seven percent
(67%) of the first Mortgagees (based upon one [1] vote for
each first Mortgage owned) have given their prior written
approval, the Owners may not elect to rebuild or restore the
Common Area and to disburse the available insurance proceeds
to the general fund of the Association.
(b) In the event the Owners shall have so voted not
to rebuild the Common Area, the Common Area shall be cleared
a,nd landscaped in accordance with plans approved by the City,
and the cost thereof shall be paid for out of the available
insurance proceeds prior to their distribution to the general
fund of the Association.
(c) In the event the Owners shall have so voted not
to rebuild the Common Area, unless the City shall agree to the
contrary, it shall be the obligation of the Association and
each of the Owners to rebuild the private streets, if any,
utilities and open spaces, at least to the extent said
streets, utilities and open spaces were accepted initially by
the City in lieu of payment of fees due pursuant to law.
Section 3. Retention of Excess Insurance Proceeds in
General Fund. In the event any excess insurance proceeds remain
after restoring the destroyed Common Area pursuant to this Article,
the Board shall retain such sums in the general fund of the
Association.
ARTICLE XIII
CONDEMNATION
Section 1. Distribution of Awards - Common Area. A
condemnation award affecting all or any portion of the Common Area
shall be remitted to the general fund of the Association.
Section 2. Board of Directors as Attorney-in-Fact.
All Owners hereby appoint the Board as their special attorney-in-
fact to handle the negotiations, settlements and agreements per-
taining to any condemnation affecting only the Common Area.
18324.220-6024.FCM 092602 •87-
ARTICLE XIV
COVENANT AGAINST PARTITION
Section 1. Covenant Against Partition. By acceptance
of his deed, each Owner shall be deemed to covenant for himself,
and for his heirs, representatives, successors and assigns, that he
will not institute legal proceedings to effect judicial partition
of his interest in the Project, unless the Project: (a) has been in
existence in excess of fifty (50) years, (b) is obsolete and
uneconomical, and (c) the Owners of fifty percent (50%) of the
total of all Lots in the Project join in such action for partition.
ARTICLE XV
INSURANCE
Section 1. Required Insurance Coverage. The Associa-
tion, acting by and through the Board, shall obtain for the Asso-
ciation and shall maintain and pay the premiums for the following
insurance coverage:
(a) Casualty and Fire Insurance. A policy or
policies of casualty and fire insurance with extended coverage
endorsement in an amount equal to one hundred percent (100%)
of the current replacement cost (without deduction for
depreciation or co-insurance) of the Common Area, together
with all Improvements located thereon. Said policies shall be
maintained for the benefit of the Owners. The coverage does
not need to include land, foundations, excavations or other
items normally excluded from such coverage. Such policy or
policies must contain, if required and if obtainable:
(1) An Agreed Amount and Inflation Guard
Endorsement;
(2) Construction Code Endorsements (such as
Demolition Cost Endorsement);
(3) A Contingent Liability from Operation of
Building Laws Endorsement; and
(4) An Increased Cost of Construction En-
dorsement, if there is a construction code provision
which would become operative and' require changes to
undamaged portions of any Improvements or the Common
Area.
18324.220-6024.FCM 092602 •88-
(b) Public Liability Insurance. A policy or pol-
icies of full coverage public liability insurance (with cross-
liability endorsement, if obtainable) insuring the Associ-
ation, the Board, the Owners, the Declarant, and the agents
and employees of each of the foregoing against any liability
to the public or to any Owner, his family, invitees and/or
tenants, arising from or incident to the ownership, occupa--
tion, use, maintenance and/or repair of the Common Area. The
limits of liability under this Section shall be set by the
Board and shall be reviewed at least annually by the Board and
increased or decreased at the discretion of the Board;
provided, however, that said limits, unless otherwise deter-
mined by the Board and approved by 67% of the Owners, shall
not be less than Three Mill ion Dollars ($3,000,000.00) for
bodily injury, including deaths of persons and property damage
arising out of a single occurrence; and, provided further,
that if FHLMC and/or FNMA participate in the financing of Lots
in the Project, said limits shall not be less than the minimum
limits required under the then current FHLMC and/or FNMA
regulations.
(c) Fidelity Bonds . Officers' and Directors' errors
and omissions insurance, and fidelity bonds naming all persons
signing checks or otherwise possessing fiscal responsibilities
on behalf of the Association, including, but not limited to,
officers. Directors, trustees and employees of the Associa-
tion, and officers, employees and agents of any management
company employed by the Association who handle or are respon,-
sible for the administration of Association funds. Such
coverage shall be in an amount deemed reasonably appropriate
by the Association, but shall not be less than the estimated
maximum funds, in the custody of the Association, or twenty-
five percent (25%) of the estimated annual operating expenses
of the Project, plus reserves, whichever is greater. In addi-
tion, if the Association enters into an agreement for pro-
fessional management of the Project, the Association shall
require such company to submit evidence of its fidelity bond
coverage to the same extent as the Association's coverage. The
Association shall be named as an additional obligee in the
management agent's bond.
Section 2. Optional Insurance Coverage. The Associa-
tion, acting at its option and by and through the Board, may pur-
chase such additional coverage or other insurance as it may deem
necessary or appropriate, or otherwise financially beneficial for
the Owners, including, but not limited to, earthquake insurance,
flood insurance. Workers' Compensation Insurance and plate glass
insurance.
18324.220-6024.FCM 092602 •89-
Section 3. Notice of Cancellation of Insurance. All
policies of insurance maintained by the Association pursuant to
this Article shall contain a provision that coverage under said
policies may not be canceled, terminated, allowed to expire by
their own terms, or be substantially modified by any party without
at least thirty (30) days' prior written notice to the Board, to
each Owner and to such first Mortgagees who have filed written
requests with the Association for such notice. A list of the Owners
and such first Mortgagees shall be made available by the As-
sociation to the insurance carrier upon request.
Section 4. Review of Coverage. The Board shall annu-
ally determine whether the amounts and types of insurance coverage
that it has obtained pursuant to . this Article shall provide
adequate coverage for the Project, based upon the then current
construction costs, insurance practices in the area in which the
Project is located and all other factors which may indicate that
either additional insurance coverage or increased coverage under
the existing policies is necessary or desirable to protect the
interests of the Association, the Owners and their respective
Mortgagees. If the Board determines that increased coverage or
additional insurance is appropriate, it shall obtain same.
Section 5. Waiver by Owners. As to all policies of
insurance maintained by the Association which will not be voided or
impaired thereby, each Owner hereby waives and releases all claims
against the Association, the Board, the Declarant and the agents
and employees of each of the foregoing, and all other Owners, with
respect to any loss covered by such insurance, whether or not
caused by the negligence of, or breach of, any agreement by said
persons, but only to the extent of the insurance proceeds received
in compensation for such loss.
Section 6. Premiums, Proceeds and Settlement. Insur-
ance premiums for all blanket insurance coverage and any other
insurance coverage which the Board has determined is necessary to
protect the interests of the Association, the Owners and their
respective Mortgagees, shall be a Common Expense to be included in
the Regular Assessments levied by the Association. All insurance
proceeds paid to the Association shall be disbursed as follows: (a)
in the event of any damage or destruction to the Common Area, such
proceeds shall be disbursed in accordance with the provisions of
the Article herein entitled "Damage or Destruction to the Common
Area"; and (b) in the event of any other loss, the proceeds shall
be disbursed as the Board shall deem appropriate, subject to the
limitations set forth in the Article herein entitled "Mortgagee
Protection." The Association is hereby granted the authority to
negotiate loss settlements with the appropriate insurance carriers.
Any two (2) Directors may sign a loss claim form and release form
18324.220-6024.FCM 092602 -90-
in connection with the settlement of a loss claim, and such
signatures shall" be binding on the Association and its Members.
Section 7. Rights and Duties of Owners to Insure.
Nothing herein shall preclude any Owner from carrying any casualty
and fire insurance for his Residence and all personal property
within his Residence, and/or public liability insurance as he may
deem desirable to cover his individual liability for damage to
person or property occurring inside his individual Lot or elsewhere
upon the Project. Each Owner hereby acknowledges and agrees that
the Association does not maintain any property or liability
insurance for an Owner's Lot. If obtainable, any liability
insurance coverage carried by an Owner shall contain a waiver of
subrogation of claims against the Declarant, the Association, the
Board, their agents and employees, and all other Owners. Such other
policies shall not adversely affect or diminish any liability under
insurance obtained by the Association. If any loss intended to be
covered by insurance carried by the Association shall occur and the
proceeds payable thereunder shall be reduced by reason of insurance
carried by any Owner, such Owner shall assign the proceeds of such
insurance carried by him to the Association to the extent of such
reduction for application by the Board to the same purposes as the
reduced proceeds are to be applied.
Section 8. Trustee for Policies. The Association is
hereby appointed and shall be deemed trustee for the interests of
all^ insureds under the policies of insurance maintained by the
Association. All insurance proceeds under such policies shall be
paid to the Board, as trustees, and the Board shall have full power
to receive such funds on behalf of the Association, the Owners and
their respective Mortgagees, and to deal therewith as provided for
in this Declaration.
Section 9. Mortgage Clause. All insurance policies
should have the "standard mortgage clause," or equivalent en-
dorsement, providing that coverage of a Mortgagee under the in-
surance policy will not be adversely affected or diminished by an
act or neglect of the Mortgagor, which is commonly accepted by
private institutional mortgage investors in the area in which the
Project is located, unless such coverage is prohibited by ap-
plicable law. Mortgages owned by FNMA must name as a Mortgagee
either FNMA or the servicers for the Mortgages held by FNMA en-
cumbering the Residences. When a servicer is named as the Mort-
gagee, its name should be followed by the phrase "its successors
and assigns." If the Mortgage is owned in whole by FHLMC, the name
of the servicer of the Mortgage followed by the phrase "its
successors and assigns, beneficiary" should be named as Mortgagee
instead of FHLMC. The mortgage clause should be endorsed to fully
protect FHLMC's interests or the interest of FHLMC and the servicer
where applicable. If FHLMC must be named as Mortgagee, the
18324.220-6024.FCM 092602 •91-
endorsement should show the servicer's address in lieu of FHLMCs
address. A mortgage clause in favor of Mortgagees holding Mort-
gages on Residences is not required on a policy insuring the Common
Area.
Section 10. Compliance With Requirements of FHLMC,
FNMA, and VA/FHA. Notwithstanding the provisions of this Article,
the Association shall obtain and maintain in effect such policies
of insurance meeting all requirements of FHLMC, FNMA, and VA/FHA
established by those entities for planned development projects for
so long as any of such agencies continue to be a Mortgagee, Owner,
insurer or guarantor of a Mortgage in the Project, except to the
extent such coverage is not available or has been waived, in
writing, by such agencies.
Section 11. Required Waiver. All policies of hazard
and physical damage insurance may provide, only if available at a
reasonable cost to the Association as determined by the Board, in
its sole discretion, for waiver of the following rights, to the
extent that the respective insurers would have the rights without
such waivers:
(a) Any defense based on co-insurance;
(b) Any right of set-off, counterclaim, apportion-
ment, proration or.contribution by reason of other insurance
not carried by the Association;
(c) Any invalidity, other adverse effect or defense
on account of any breach of warranty or condition caused by
the Association, any Owner or any tenant of any Owner, or
arising from any act, neglect or omission of any named
insured, or the respective agents, contractors and employees
of any insured;
(d) If applicable, any right of the insurer to
repair, rebuild or replace, and, in the event the Residence is
not repaired, rebuilt or replaced following loss, any right to
pay under the insurance an amount less than the replacement
value of the improvements insured or the fair market value
thereof;
(e) If applicable, notice of the assignment of any
Owner of its interest in the insurance by virtue of a convey-
ance of any Lot; and
(f) Any right to require any assignment of any
Mortgage to the insurer.
18324.220-6024.FCM 092602 •92^
Section 12. Annual Notification of Insurance. The
Association shall, upon issuance or renewal of insurance, but not
less than annually, notify its Members as to the amount and type of
insurance carried by the Association, and it shall accompany this
notification with statements to the effect that the Association is
or is not insured to the levels specified by this Article, and that
if not so insured. Owners may be individually liable for the entire
amount of a judgment, and if the Association is insured to the
levels specified in Section 1 above, then Owners may be individual-
ly liable only for their proportional share of Assessments levied
to pay the amount of any judgment which exceeds the limits of the
Association's insurance. The Association shall further prepare and
distribute to all its Members a summary of the Association's
insurance coverage pursuant to Section 1365 of the California Civil
Code, as same may be amended from time to time.
ARTICLE XVI
MORTGAGEE PROTECTION
Section 1. Mortgagee Protection Provisions. Notwith-
standing any other provisions in this Declaration to the contrary,
in order to induce FHLMC and FNMA, and other lenders and investors,
to participate in the financing of the sale of Lots in the Project,
the following provisions contained within this Article are added
hereto, and to the extent these added provisions conflict with any
other provisions in this Declaration, these added provisions shall
control. This Declaration, the Articles and the By-Laws for the
Association are hereinafter collectively referred to in this
Article as the "constituent documents."
(a) The right of an Owner to sell, transfer or
otherwise convey his or her Lot shall not be subject to any
right of first refusal or any similar restriction in favor of
the Association;
(b) The lien of the Assessments provided for herein
shall be subordinate to the lien of any first Mortgage now or
hereafter recorded upon any Lot. The sale or transfer of any
Lot shall not affect the Assessment lien; however, the sale' or
transfer of ' any Lot pursuant to judicial or nonjudicial
foreclosure of a first Mortgage or pursuant to any remedies
provided for in the Mortgage shall extinguish the lien of such
Assessments as to payments which became due prior thereto. No
sale or transfer shall relieve such Lot from liability for
Assessments due thereafter. Any first Mortgagee who obtains
title to a Lot pursuant to the remedies provided in the
Mortgage, or foreclosure of the Mortgage, or any purchaser at
a foreclosure sale of a first Mortgage will not be liable for
18324.220-6024.FCM 092602 _93.
unpaid Assessments or charges which accrue prior to the ac-
quisition o'f title to such Lot by the Mortgagee (except for
claims for a share of such Assessments or charges resulting
from a reallocation of such Assessments or charges to all
Lots, including the mortgaged Lot);
(c) Except as provided by statute in case of con-
demnation or substantial loss to the Lots and/or Common Area,
unless sixty-seven percent (67%) of the. Owners other than
Declarant, or sixty-seven percent (67%) of the first Mortgag-
ees (based upon one [1] vote for each Lot encumbered by said
Mortgagee's first Mortgage) have given their prior written
approval, neither the Association nor the Owners shall be
entitled to:
(1) Change the method of determining the
obligations. Assessments, dues or other charges which may
be levied against an Owner's Lot;
(2) By act or omission seek to abandon, parti-
tion, subdivide, encumber, sell or transfer all or any
portion of the Common Area. The granting of easements for
public utilities or for other purposes consistent with
the intended uses of the Common Area or the residential
nature of the Project, shall not be deemed a transfer
within the meaning of this clause;
(3) Use hazard insurance proceeds for losses
to the Common Area for other than repair, replacement or
reconstruction;
(4) Effect any decision of the Association to
terminate professional management and assume self-
management of the Project, where such professional man-
agement was previously a requirement by a holder, insurer
or guarantor of any first Mortgage;
(5) By act or omission, change, waive or
abandon any provisions of this Declaration, or enforce-
ment thereof, pertaining to architectural design of the
Residences situated on a Lot or the maintenance and
operation of the Common Area within the Project, in-
cluding, without limitation, fences and landscaping
within the Project;
(6) Fail to maintain fire and extended cov-
erage on the insurable Common Area on a current re-
placement cost basis in an amount not less than one
hundred percent (100%) of the insurable value thereof;
and
18324.220-6024.FCM 092602 .94.
(7) Abandon or terminate the Association,
except' for abandonment, partition or termination as may
be provided by law.
(d) All taxes. Assessments and charges which may
become liens prior to the first Mortgage under local law shall
relate only to individual Lots, and not to the Project as a
whole;
(e) No provision of the constituent documents shall
be interpreted to give any Owner or any other party priority
over any rights of the first Mortgagee in the case of a
distribution to such Owner of insurance proceeds or condemna-
tion awards for losses to or a taking of all or any portion of
the Common Area or such Owner's Lot;
(f) The Assessments provided for in the constituent
documents shall include an adequate reserve fund for mainte-
nance, repairs and replacement of those elements of the Common
Area that must be replaced on a periodic basis, and shall be
payable in regular installments, rather than by Special
Assessments;
(g) Each holder, insurer or guarantor of a first
Mortgage who has filed with the Association a written request
for notice shall be entitled to timely written notice of:
(1) Any condemnation or eminent domain pro-
ceeding, and any loss or taking resulting from such
proceeding which affects the Project, or any portion
thereof;
(2) Any substantial damage or destruction to
the Project, or any portion thereof, when such loss
exceeds Ten Thousand Dollars ($10,000.00);
(3) Any default in the performance by an indi-
vidual Owner of any obligation under the constituent
documents which is not cured within sixty (60) days after
the Association learns of such default, which notice
shall state the length of time which such Owner has been
delinquent;
(4) Any lapse, cancellation or material
modification of any insurance policy or fidelity bond
maintained by the Association;
(5) Any abandonment or termination of the
Proj ect; and
18324.220-6024.FCM 092602 -95-
(6) Any proposed action that requires the
consent of a specified percentage of eligible Mortgagees.
(h) Any agreement for professional management of
the Project, or any contract providing for services of the
Declarant, may not exceed one (1) year, renewable by agreement
of the parties for successive one (1) year periods. Any such
agreement must provide for termination by either party with or
without cause and without payment of a termination fee on
thirty (30) days' or ninety (90) days' or less, respectively,
prior written notice;
(i) First Mortgagees of Lots may, jointly or
singly, pay taxes or other charges which are in default and
which may have become a lien on the Common Area, and may pay
overdue premiums on hazard insurance policies or secure new
hazard insurance coverage on the lapse of a policy for the
Common Area, and first Mortgagees making such payments shall
be owed immediate reimbursement therefor from the Association.
Upon demand by any first Mortgagee, the Board shall execute,
on behalf of the Association, an agreement establishing the
right of all first Mortgagees to such reimbursement;
(j) A first Mortgagee of a Lot in the Project will,
upon request, be entitled to:
(1) Examine the books and records of the
Association during normal business hours;
(2) An audited financial statement from the
Association for the previous fiscal year (without expense
to the holder, insurer or guarantor requesting said
statement), however, if an audited financial statement is
not available and until such time as the Project contains
fifty (50) Lots, any Mortgage holder may be allowed to
have an audited financial statement prepared, at its own
expense; and
(3) Receive written notice of all meetings of
the Association and be permitted to designate a rep-
resentative to attend all such meetings.
(k) Each Owner shall notify the Association in
writing within ten (10) days after the close of escrow for the
purchase of his Lot of the name and address of his first
Mortgagee, and thereafter, each Owner shall promptly notify
the Association of any changes of name or address for his
first Mortgagee;
18324.220-6024.FCM 092602 •96-
(1) If any Lot (or portion thereof) or the Common
Area (or po'rtion thereof) is made the subject matter of any
condemnation or eminent domain proceeding, or is otherwise
sought to be acquired by a condemning authority, then the
institutional holder of any first Mortgage on such Lot will be
entitled to timely written notice of any such proceeding or
proposed acquisition; and
(m) Subject to the provisions set forth herein, in
the event any portion of the Common Area encroaches upon any
Lot or any Lot encroaches upon the Common Area as a result of
the construction, reconstruction, repair, shifting, settlement
or movement of any portion of the Project, a valid easement
for the encroachment and for the maintenance of the same shall
exist so long as the encroachment exists.
Section 2. Violation of Mortgagee Protection Provi-
sions . No breach of any of the foregoing Protective Covenants shall
cause any forfeiture of title or reversion or bestow any right of
re-entry whatsoever, but in the event that any one or more of these
Protective Covenants shall be violated, the Declarant, its
successors and assigns, the Association, or any Owner in the
Project may commence a legal action in any court bf competent
jurisdiction to enjoin or abate said violation and/or to recover
damages; provided, however, that any such violation shall not
defeat or render invalid the lien of any Mortgage or deed of trust
made in good faith and for value. Said Protective Covenants shall
be binding upon and effective against any Owner whose title is
acquired by foreclosure, trustee sale or otherwise.
Section 3. Amendments to Conform With Mortgagee Re-
quirements . It is the intent of Declarant that this Declaration and
the Articles and By-Laws of the Association, and the Project in
general, meet all requirements necessary to purchase, guarantee,
insure or subsidize any Mortgage of a Lot in the Project by the
FHLMC and the FNMA. In furtherance of said intent. Declarant may
amend this Declaration without the consent of the Members at any
time after the close of escrow for the first sale of a Lot in the
Project by recording a written instrument setting forth the
amendment, provided that the amendment is necessary to cause this
Declaration to comply with the requirements of the DRE, VA/FHA,
FHLMC, FNMA, and/or GNMA; provided, however, that any such
amendment shall be effective only if Declarant mails a copy of the
amendment to all of the foregoing entities which are, or have
agreed to be, a holder, insurer or guarantor of a first Mortgage,
and does not, within thirty (3 0) days thereafter, receive a notice
of disapproval from any such entity. Said amendments shall not be
recorded by Declarant until after the expiration of such thirty
(30) day period.
18324.220-6024.FCM 092602 •97-
ARTICLE XVII
ENFORCEMENT OF BONDED OBLIGATIONS
Section 1. Enforcement of Bonded Obligations. In the
event that the improvements of the Common Area have not been com-
pleted prior to the issuance of a Final Subdivision Public Report
by the DRE, and the Association is obligee under a bond or other
arrangement (hereinafter referred to as the "Bond") to secure a
performance of the commitment of Declarant to complete such im-
provements, the following provisions shall apply:
(a) The Board shall consider and vote on the
question of action by the Association to enforce the obliga-
tions under the Bond with respect to any improvements for
which a Notice of Completion has not been filed within sixty
(60) days after the completion date specified for such im-
provements 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, the Board
shall consider and vote on the aforesaid question if a Notice
of Completion has not been filed within thirty (30) days after
the expiration of such extension.
(b) In the event that the Board determines not to
initiate action to enforce the obligations under the Bond, or
in the event the Board fails to consider and vote on such
question as provided above, the Board shall call a special
meeting of the Members for the purpose of voting to override
such decision or such failure to act by the Board. Such
meeting shall be called according to the provisions of the By-
Laws dealing with meetings of the Members, but in any event,
such meeting shall be held not less than thirty-five (35) days
nor more than forty-five (45) days after receipt by the Board
of a petition for such meeting signed by Members representing
five percent (5%) of the total voting power of the Associa-
tion.
(c) The only Members entitled to vote at such
meeting of Members shall be the Owners, other than Declarant.
A vote at such meeting of a majority of the voting power of
such Members, 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 thereaf-
ter implement such decision by initiating and pursuing
appropriate action in the name of the Association.
18324.220-6024.FCM 092602 -98-
ARTICLE XVIII
ANNEXATION OF ADDITIONAL PROPERTY
Additional property may be annexed to and become subject
to this Declaration as set forth in this Article.
Section 1. Development of the Proiect. The Declarant
intends to sequentially develop the Annexation Property on a phased
basis; however. Declarant may elect not to develop all or any
portions of said Annexation Property, to annex such portions of the
Annexation Property in Phases of any size or to develop more than
one (1) Phase in any order and at any given time, subject to the
provisions of this Article.
Section 2. Annexation Pursuant to General Plan of
Development. Declarant may, subject to the provisions of this
Article, annex all or any portions of the Annexation Property,
thereby making such Annexation Property subject to this Declaration
and to the jurisdiction of the Association, without the vote or
written assent of the Association or its Members, provided and on
condition that:
(a) Any annexation pursuant to this Section shall
be allowed when the proposed annexation is in substantial
conformance with the overall general plan of phased develop-
ment for the Project originally submitted to and approved by
the DRE and VA/FHA with the Phase 1 Final Subdivision Public
Report application, or as subsequently approved by the DRE;
and
(b) A Notice of Annexation, as described in Section
4 of this Article, shall be recorded covering the designated
portions of the Annexation Property.
Section 3 . Annexation Pursuant to Approval. Except as
otherwise allowed pursuant to Section 2 above, upon obtaining the
approval in writing of the Association pursuant to the vote or
written assent of sixty-seven percent (67%) of the total voting
power of Association Members, the owner of any property who desires
to annex said property to the scheme of this Declaration and to
subject it to the jurisdiction of the Association may file of
record a Notice of Annexation, as described in Section 4 of this
Article.
Section 4. Notice of Annexation. The annexation of
additional property authorized under this Article shall be made in
filing of record a Notice of Annexation, or similar instrument,
covering said additional property, and the Notice of Annexation
shall expressly provide that the scheme of this Declaration shall
18324.220-6024.FCM 092602 •99-
extend to such additional property. The Notice of Annexation may
contain such complementary additions to and modifications of the
Protective Covenants set forth in this Declaration which are neces-
sary to reflect the different character, if any, of the annexed
property, including, but not limited to, marketing and selling
vacant Lots, the architectural guidelines for any construction
thereon, maintenance responsibilities between the Association and
the Owners in this annexed property and payment of Assessments, and
which are fair, reasonable, and appropriate, and are not inconsis-
tent with the general scheme of this Declaration. Except as set
forth in this Section, no Notice of Annexation shall add, delete,
revoke, modify or otherwise alter the Protective Covenants set
forth in this Declaration.
Section 5. Effective Date of Annexation. Any Notice
of Annexation recorded on a subsequent Phase of the Project shall
become effective immediately upon the first close of an escrow for
the sale of a Lot in said Phase, as evidenced by the recordation of
the first instrument of conveyance for said Lot.
Section 6. Right of De-Annexation. Declarant hereby
reserves the right to delete all or any portions of the Annexation
Property which may be annexed to the Project pursuant to this
Declaration, and to delete said property from the scheme of this
Declaration and from the jurisdiction of the Association, provided
and on condition that (i) the de-annexation shall be made prior to
the first close of an escrow for the sale of a Residence in the
property to be de-annexed, (2) the de-annexation is recorded in the
same manner as the applicable Notice of Annexation, (3) the
Declarant has not exercised any vote with respect to any Residence
in such property, (4) no Assessments have commenced on any portion
of the property subject to the de-annexation, and (5) a draft of
the revocation of Notice of Annexation has been submitted to and
approved by the VA/FHA, if applicable.
Section 7. Amendments to Notice of Annexation. Not-
withstanding any other provisions in this Declaration to the con-
trary, a Notice of Annexation may be amended by the requisite
affirmative vote of Members (and first Mortgagees, if applicable),
as set forth in the Article herein entitled "General Provisions,"
in only the annexed property described in said Notice of Annex-
ation, rather than all Members (and first Mortgagees, if applica-
ble) in the Project, on the following conditions:
(a) Such amendment applies only to the annexed
property described in said Notice of Annexation; and
(b) Such amendment shall in no way contradict,
revoke or otherwise alter any of the Protective Covenants set
forth in this Declaration.
18324.220-6024.FCM 092602 -100-
Section 8. Parties to Notice of Annexation. For so
long as Declarant has the right to annex all or any portion of the
Annexation Property into the Project, each Notice of Annexation
covering property owned by Declarant shall be executed only by
Declarant. Declarant's execution of any Notice of Annexation shall
evidence Declarant's consent thereto.
ARTICLE XIX
GENERAL PROVISIONS
Section 1. Enforcement.
(a) The City, Association or the Owner of any Lot
in the Project, including the Declarant, shall have the right
(but not the duty or obligation) to enforce, by proceedings at
law or in equity, all of the Protective Covenants now or
hereafter imposed by this Declaration and the By-Laws,
respectively (and the Rules and Regulations duly adopted by
the Association), including, without limitation, the right to
record a notice of noncompliance or violation, to prosecute a
proceeding at law or in equity against the person or persons
who have violated, or are attempting to violate, any of said
Protective Covenants, to enjoin or prevent them from doing so,
to cause said " violation to be remedied and/or to recover
damages for said violation; provided, however, that with
respect to Assessment liens, the Association shall have the
exclusive right to the enforcement thereof.
(b) The result of every act or omission whereby any
of the Protective Covenants contained in this Declaration or
the provisions of the By-Laws are violated, in whole or in
part, is hereby declared to be and constitutes a nuisance, and
every remedy allowed by law or equity against a nuisance shall
be applicable against every such result and may be exercised
by any Owner, by the Association, or by their successors in
interest.
(c) The remedies herein provided for breach of the
Protective Covenants contained in this Declaration or the
provisions of the By-Laws shall be deemed cumulative, and none
of such remedies shall be deemed exclusive.
(d) The failure of the Association or any Owner tb
enforce any of the Protective Covenants contained in this
Declaration or the provisions of the By-Laws shall not
constitute a waiver of the right to enforce the same thereaf-
ter.
18324 .220-6024 .FCM 092602 -101-
(e) Prior to filing a civil action by either the
Association" or by an Owner solely for declaratory relief or
injunctive relief, or for declaratory relief or injunctive
relief in conjunction with a claim for monetary damages other
than Association Assessments, related to the enforcement of
the Association governing documents, the parties may be
required to comply with the provisions set forth herein and
Civil Code Section 1354, if applicable. Failure to comply
with the prefiling requirements of Section 1354 of the Civil
Code may result in the loss of the right to sue regarding
enforcement of the Association governing documents. Upon
motion by any party for attorneys' fees and costs as the
prevailing party, the court, in determining the amount of the
award, may consider a party's refusal to participate in
alternative dispute resolution prior to the filing of the
action and other provisions set forth herein.
(f) A breach of the Protective Covenants contained
in this Declaration or of the provisions of the By-Laws shall
not affect or impair the lien or charge of any bona fide Mort-
gage or deed of trust made in good faith and for value on any
Lot; provided, however, that any subsequent Owner of such
property shall be bound by said Protective Covenants, whether
or not such Owner's title was acquired by foreclosure, a trus-
tee's sale or otherwise.
(g) The Board, for and on behalf of the Associa-
tion, may assess monetary penalties against an Owner as a
Compliance Assessment and/or temporarily suspend said Owner's
voting rights for the period during which any Assessment
against said Owner's Lot remains unpaid; provided, however,
the requirements for Notice and Hearing set forth in the By-
Laws shall be followed with respect to the accused Owner
before a decision to impose discipline is reached.
(h) The Board, for and on behalf of the Associa-
tion, may, after Notice and Hearing, temporarily suspend an
Owner's voting rights for a period not to exceed thirty (30)
days for any infraction of the Association's published Rules
and Regulations; provided, however, the requirements for
Notice and Hearing set forth in the By-Laws shall be followed
with respect to the accused Owner before a decision to impose
discipline is reached.
(i) In addition to the above general rights of
enforcement, the City and any other governmental entity with
appropriate jurisdiction shall have the right, through its
agents and employees, to enter upon any part of the Project
for the purpose of enforcing all applicable codes and/or local
ordinances, including, but not: limited to, the California
18324 .220-6024 ,FCM 092602 -102'
Vehicle Code, and is hereby granted an easement over the
Project for'such purpose.
Section 2. Severability. Invalidation of any one of
these Protective Covenants by judgment or court order shall in no
way affect any other provisions hereof, which shall remain in full
force and effect.
Section 3. Term. The Protective Covenants set forth
in this Declaration shall run with and bind the Project, and shall
inure to the benefit of the Association and be enforceable by the
Board or the Owner of any land subject to this Declaration, their
respective legal representatives, heirs, successors and assigns,
for a term of sixty (60) years from the date this Declaration is
recorded, after which time said Protective Covenants shall be
automatically extended for successive periods of ten (10) years,
unless an instrument, signed by a majority of the then Owners
agreeing to terminate said Protective Covenants, in whole or in
part, has been recorded within one (1) year prior to the termina-
tion of the initial sixty (60) year term, or within one (1) year
prior to the termination of any successive ten (10) year period.
Section 4 . Construction. The provisions of this Dec-
laration shall be liberally construed to effectuate its purpose of
creating a uniform plan for the development and maintenance of the
Project. The Article and Section headings have been inserted for
convenience only and shall not be considered or referred to in
resolving questions of interpretation or construction.
Section 5. Singular Includes Plural. Whenever the
context of this Declaration may so require, the singular shall in-
clude the plural, and the masculine shall include the feminine and
neuter.
Section 6. Amendments.
(a) Amendments by Declarant. Prior to the sale of
a Lot to a member of the public, in accordance with a Final
Subdivision Public Report issued by the DRE, this Declaration
may be amended, restated or terminated by an instrument
executed by Declarant. Notwithstanding any other provisions of
this Declaration, for so long as Declarant owns any portion of
Carlsbad Tract CT 00-16, Declarant may unilaterally amend this
Declaration (i) to conform this Declaration to the require-
ments of VA, DRE, FNMA, FHLMC, GNMA, the County, City, State,
or any other governmental agency or entity then in effect and
(ii) correct typographical or inadvertent errors in the
Declaration and/or Exhibits attached thereto.
18324.220-6024.FCM 092602 •103-
(b) Amendments by Association. Subject to Section
6(a) above; this Declaration may be amended only by an
affirmative vote of Owners representing not less than sixty-
seven percent (67%) of the Class A voting power and the Class
B voting power of the Association. At such time when the Class
B membership shall cease and be converted to Class A member-
ship, any and all amendments to this Declaration shall be
enacted by requiring the vote or written assent of Owners
representing both: (a) sixty-seven percent (67%) of the total
voting power of the Association, and (b) sixty-seven percent
(67%) of the votes of Members, other than the Declarant;
provided, however, that the percentage of the voting power
necessary to amend a specific provision shall not be less than
the percentage of affirmative votes prescribed for action to
be taken under said provision. Any Owner or the Association
may petition the Superior Court of the City for an order re-
ducing the necessary percentage required under this Section to
amend this Declaration. The procedure for effecting this
petition is set forth in Section 1356 of the California Civil
Code, as the same may be amended, from time to time.
(c) Approval of Mortgagees. In addition to the
rights of first Mortgagees, as set forth in the Article herein
entitled "Mortgagee Protection," in the event that FNMA
participates in the financing of Lots in the Project, the
written consent of not less than fifty-one percent (51%) of
the first Mortgagees shall be required for any amendment of a
"material" nature. An amendment which affects or purports to
affect any of the following is considered material:
(1) The legal status of the Project as a
planned development;
(2) Voting rights;
(3) Increases in Assessments that raise the
previously assessed amount by more than twenty-five
percent (25%), assessment liens or the priority of
assessment liens, including the levy and collection
thereof, enforcement provisions for nonpayment and
subordination of liens for nonpayment;
(4) Reduction in reserves for maintenance,
repair and replacement of Common Area;
(5) Responsibility for Common Area maintenance
and repair;
(6) Reallocation of interests in the Common
Area or rights to use the Common Area;
18324.220-6024.FCM 092602 -104-
(7) Boundaries of any Lot;
(8) Convertibility of Common Area into Lots or
Lots into Common Area;
(9) Expansion or contraction of the Project,
or addition, annexation or de-annexation of additional
property to or from the Project;
(10) Insurance or fidelity bonds requirements;
(11) Restrictions on the leasing of Lots;
(12) Restrictions on alienation, including, but
not limited to, rights of first refusal;
(13) Any decision by the Association to es-
tablish self-management, if professional management was
previously required by an eligible first Mortgagee or
legal documents governing the Project;
(14) Restoration or repair of the Project in a
manner other than as specified in this Declaration;
(15) Any action to terminate the legal status
of the Project after substantial destruction or condem-
nation occurs; and
(16) Mortgagee protection provisions as set
forth in that Article hereinabove entitled "Mortgagee
Protection," and such other provisions in this Declara-
tion for which the consent of Mortgagees shall be re-
quired or which are expressly for the benefit of Mort-
gagees, insurers or guarantors of Mortgages.
In the event the Association is considering termination of the
legal status of the Project for reasons other than the
substantial destruction or condemnation of the Project, then
sixty-seven percent (67%) of the first Mortgagees must agree
to said termination. Notwithstanding the foregoing, in the
event any first Mortgagee receives a written request, de-
livered by certified or registered mail with return receipt
requested, from the Board to approve any amendment to this
Declaration, and such first Mortgagee does not deliver a
negative response in writing to the Board within thirty (30)
days of the mailing of such request by the Board, such first
Mortgagee shall be deemed to have approved such proposed
amendment.
18324.220-6024.FCM 092602 •105-
(d) Approval by City. Notwithstanding any other
provisions "of this Article, no amendment of a provision
affecting the rights of the City and no action by Declarant or
the Association terminating this Declaration shall be effec-
tive without the prior written consent of the City. The
Declarant or the Association shall forward, or cause to be
forwarded, to the City a written notice of any such proposed
amendment or termination. Notwithstanding the foregoing, in
the event the City receives a written request, delivered by
certified or registered mail with return receipt requested,
from the Board to approve any proposed amendment to this
Declaration, and the City does not deliver a negative response
in writing to the Board within thirty (30) days of the mailing
of such request by the Board, the City shall be deemed to have
approved such proposed amendment. The Declarant or the
Association shall transmit a copy of the final approved
amendment to the City within thirty (30) days after the final
approved amendment becomes effective.
(e) Recordation of Amendments. An amendment made in
accordance with the provisions set forth hereinabove shall be
effective when executed by the President and Secretary of the
Association, who shall certify that the amendment has been
approved by the membership and, where appropriate, by the
first Mortgages, in'the percentages set forth hereinabove, and
recorded in the Office of the County Recorder. Upon such
recordation, the amendment shall be effective and binding upon
all Owners and all Mortgagees, regardless of whether such
Owner or such Mortgagee consented to such amendment.
Section 7. Encroachments. None of the rights and ob-
ligations of the Owners created herein or by the deed shall be al-
tered in any way by encroachments due to settlement or shifting of
structures or any other cause. There shall be valid easements for
the maintenance of said encroachments so long as they shall exist;
provided, however, that in no event shall a valid easement for
encroachment be created in favor of an Owner if said encroachment
occurred due to the willful or negligent conduct of said Owner.
Section 8. Notices. Any notice permitted or required
to be delivered as provided herein shall be in writing and may be
delivered either personally or by mail. If delivery is made by
first class, registered or certified mail, it shall be deemed to
have been delivered forty-eight (48) hours after a copy of the same
has been deposited in the United States mail, postage prepaid, ad-
dressed to any person at the address given by such person to the
Association for the purpose of service of such notice, or to the
Lot of such person if no address has been given to the Association.
If such notice is not sent by first class, registered or certified
mail, it shall be deemed to have been delivered when received. Such
18324.220-6024.FCM 092602 -106-
address may be changed, from time to time, by notice in writing to
the Association.'
Section 9. Attorneys' Fees. If any Owner defaults in
making a payment of Assessments or in the performance or observance
of any provision of this Declaration, and the Association and/or an
Owner has obtained the services of an attorney in connection there-
with, the Owner covenants and agrees to pay any costs or fees
incurred, including reasonable attorneys' fees, regardless of
whether dispute proceedings are instituted.
Section 10. Mergers or Consolidations. Upon a merger
or consolidation of the Association with another association, the
Association's properties, rights and obligations may, by operation
of law, be transferred to another surviving or consolidated
association or, alternatively, the properties, rights and obliga-
tions of another association may, by operation of law, be added to
the properties, rights and obligations of the Association as a
surviving corporation pursuant to a merger. The surviving or
consolidated association may administer and enforce the Protective
Covenants established by this Declaration governing the Project,
together with the covenants and restrictions established upon any
other property as one plan.
Section 11. No Representations or Warranties. No
representations or warranties of any kind, express or implied, have
been given or made by Declarant, or its agents or employees, in
connection with the Project, or any portion thereof, its physical
condition, zoning, compliance with applicable laws, fitness for
intended use, or in connection with the subdivision, sale,
operation, maintenance, cost of maintenance, taxes or regulation
thereof as a planned development, except as specifically and
expressly set forth in this Declaration, and except as may be filed
by Declarant, from time to time, with the DRE.
Section 12. Proiect Disclosures.
(a) The Project is subject to all terms and
conditions set forth in City of Carlsbad Planning Commission
Resolution Nos. 4998, 4999, and 5000 and City Council Resolution
2001-230.
(b) The San Diego Northern Railroad and Poinsettia
Commuter. Rail Station are located in close proximity to the
Project. Residents of the Project will be exposed to noise, air
pollution, vibrations, lights, and traffic congestion relating to
the operation of the railroad and rail station. Additionally,
trains must provide' a warning upon their approach to street
crossings by use of the train's whistle and bell. The railroad may
18324.220-6024.FCM 092602 -107"
also be an attractive nuisance to children who may play in the
vicinity of the railroad.
(c) The Project is located in the vicinity of
Interstate Highway 5, Poinsettia Lane, Avenida Encinas, and
Embarcardero Way. Residents of the Project will be exposed to
noise, air pollution, and traffic congestion relating to these
highways and streets.
(d) The Project is located in the vicinity of the
Encina Wastewater Treatment facility, and a sewer pump station
will be located in the southwest corner of the Project. Residents
of the Project will be exposed to noise and unpleasant odors
associated with the wastewater treatment facility and sewer pump
station.
(e) The Project is located within the vicinity of
an airport. Residents of the Project will be exposed to noise,
odors, exhaust, dust, air pollution, vibrations, lights, and
traffic congestion relating to the operation of the airport.
(f) The Project is located within the vicinity of
the Encina power plant. Residents of the Project will be exposed
to noise, air pollution, and lights relating to the operation of
the power plant.
(g) The Project includes a public trail and
internal sidewalks leading to adjoining areas to the north of the
Project, a railroad station, an open space trail that runs adjacent
to the railroad, and pedestrian walkways outside of the Project.
Residents of the Project will be exposed to noise and pedestrian
traffic through the Project associated with the public trail and
sidewalks.
(h) The property immediately north of the Project
has been zoned as a mixed use commercial site. Residents of the
Project will be exposed to noise, lights, air pollution, and
traffic congestion associated with the use of such site.
(i) Each Owner, for and on behalf of himself and
the members of his family, his tenants, lessees, guests and
invitees, expressly approve all of the foregoing conditions and
risks, and waives all causes of action and covenants not to sue the
City, the Declarant, and their respective directors, officers,
members, employees, agents and consultants for any damages or
injuries which may arise from or relate to any of such conditions
and/or risks.
Section 13. Davis-Stirling Act. Notwithstanding the
provisions set forth in this Declaration, various laws (including.
18324.220-6024.FCM 092602 -108-
but not limited to, the Davis-Stirling Common Interest Development
Act, Sections 1350, et seq., of the California Civil Code, and the
Federal Fair Housing Act, Title 42 United States Code, Sections
3601, et seq.. as such laws may be amended, from time to time), may
supplement or override the provisions of this Declaration. This
Declaration shall be interpreted and construed to be consistent
with such applicable laws, as same may be amended, from time to
time, and, accordingly. Declarant makes no representations or
warranties regarding the future enforceability of the provisions of
this Declaration.
Section 14. Conflicts in Management Documents For the
Project. In the event of any conflict between and/or among the
provisions of any of the management documents for the Project, the
Declaration shall be deemed to supersede the' provisions of any
conflicting management documents, including, without limitation,
the By-Laws, architectural standards, if any, and the Rules and
Regulations, if any.
Section 15. Requirements of the City. In accordance
with requirements of the City:
(a) The City shall have the right, but not the
obligation, to enforce all of the Protective Covenants now or
hereafter imposed by this Declaration in favor of the City or
in which the City has an interest.
(b) The rights of the City to compel performance
shall include the following:
(1) The Declarant, the Association and Lot
Owners grant the City, its employees, agents and contrac-
tors, the right and power to enforce the Common Area use
and maintenance covenants of the Association and the
Owners with respect to the maintenance thereof as con-
tained in this Declaration; provided, however, that no
duty on the part of the City to exercise this power and
to enforce said use and maintenance covenants shall be
deemed to arise by virtue of this Declaration or any
other action of the- City. Notwithstanding any provision
of this Declaration that appears to the contrary, the
City may, by action at law or in equity, enforce the
following provisions as the governing municipality.
(2) In the event of default of any Owner or
the Association in performing their obligations to
maintain the Common Area as set forth in this
Declaration, the City shall have the same right as that
of the Association to enter the Common Area for the
purpose of discharging the obligations of the Associa-
18324.220-6024.FCM 092602 -109-
the use and maintenance of the Common Area shall be
deemed'to be a waiver of the right or power of the City
to enforce any subsequent default thereof. In the event
the City is the prevailing party in an enforcement action
under this section, the City shall have the right to
collect its reasonable attorney's fees, costs, and
expenses associated with any action or proceeding to
enforce its rights hereunder.
IN WITNESS WHEREOF, Declarant has executed this instru-
ment on the day and year first above written.
"DECLARANT"
WL HOMES, LLC, a Delaware limited liabil-
ity company
Its: Steven tobel President Southern Califomia Re^^on
STATE OF CALIFORNIA )
COUNTY OF ()(MOl^ )
on A(a(pf
Notary ^Public / m and
, 2002, before me, the undersigned, a
for said State, personally appeared
, 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 to me that he
executed the same in his authorized capacity, and that by his
signature on the instrument, the persons or the entities upon
behalf of which the person acted executed the instrument.
ITNESS my hand and official seal
ture of TSfc :ary Public
(SEAL)
18324.220-6024.FCM 032402 -110-
CONSENT OF LIENHOLDER AND
SUBORDINATION OF LIEN
The undersigned beneficiary under that certain Deed of
Trust recorded on July 1, 2002, as Instrument No. 2002-0556602 in
the Official Records of San Diego County, California, hereby
consents to the recordation of the attached Declaration of
Covenants, Conditions and Restrictions, and Reservation of
Easements for Waters End" ("Declaration"), and to any Notice of
Annexation recorded pursuant to the Article therein entitled
"Annexation of Additional Property" ("Notice of Annexation"), and
agrees that the lien of the Deed of Trust shall be junior and
subordinate and subject to the Declaration and Notice of Annexation
and to any easements to be conveyed to the Waters End Homeowners
Association in accordance with the terms of the Declaration and any
Notice of Annexation, and to any amendments or modifications to the
Declaration which may be required to comply with any law, statute
or regulation of any pxiblic agency or any requirement of FNMA or
FHLMC.
DATED: "^oi^^^uwvW^^-iUCTl "LIENHOLDER"
Residential Funding Corporation
a Delaware corporation
BY:
HOG
Its: BlRC.Ct^^
BY;
Its:
18324.220-6024.FCM 032402
STATE OF CALIFORNIA )
COUNTY OF -Lo^ QMJXty-^ )
On Jxf^M)Li^A(J ^, 2 002, before me, the undersigned, a
I^^^^Pu^lic^iru, an^ ^or said State, personally appeared
and
personally known to me -(or-p-rovod to mc on the basis uf satisfactc
Jc5Z:rE2±dsrtce) to be the personlg, whose name&> subscribed to the
within instrument and acknowledged to me that ihe^^xecuted the
same in l^fee^^authorized capacity, and that by t-iieir signature^ on
the instrument the person^ or the entities upon behalf of which the
person^ acted executed the instrument.
WITNESS my hand and official seal.
^/&7U^ (yA ^(Z4CAOC2^- ^ l^^L commission #1218811
-Signature of N^^ry Public ife^ '^S'/^^'SSs'SSr
Comm. Expires Moy9.20Ca
_• • • r \
(SEAL)
18324.220-6024.FCM 032402
CONSENT OF LIENHOLDER AND
SUBORDINATION OF LIEN
The undersigned beneficiary under that certain Deed of
Trust recorded on July 1, 2002, as Instrument No. 2002-0556604 in
the Official Records of San Diego County, California, hereby
consents to the recordation of the attached Declaration of
Covenants, Conditions and Restrictions, and Reservation of
Easements for Waters End" ("Declaration"), and to any Notice of
Annexation recorded pursuant to the Article therein entitled
"Annexation of Additional Property" ("Notice of Annexation"), and
agrees that the lien of the Deed of Trust shall be junior and
subordinate and subject to the Declaration and Notice of Annexation
and to any easements to be conveyed to the Waters End Homeowners
Association in accordance with the terms of the Declaration and any
Notice of Annexation, and to any amendments or modifications to the
Declaration which may be required to comply with any law, statute
or regulation of any public agency or any requirement of FNMA or
FHLMC.
DATED: , t,^-/y^.7^ ^0CO^ "LIENHOLDER"
GUARANTY BANK
a federainsavings bank
BY;
BY:
Its:
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
September 17, 2002 before me, Rosalinda I. Molina personally
_ personally known to me (or proved to me **Elise K. Forrest**
On
appeared.
on the basis of satisfactory evidence) to be the person(s) whose names(s) isy^efe
subscribed to the within instrument and acknowledged to me that -he/she/they
executed the same in hts/her/thcir authorized capacity(ies), and that by
hfe/her/thcir signature(s) 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
Rosalinda I. Molina
My Commission Expires: June 13, 2004
M m m m ROSALINDA I. MOUNA
Commissi 12^92
Notary Public - Carrforrfa
Son Dfego County
My Comm. Bsprei Jun
w m mi m ^ m
JNA i
692 I
iiOmio f
Tty f
U2Xi4f
EXHIBIT 'A'
WATERS END - POINSETTIA PROPERTIES P.A. 2. 3 AND 4
STREET EASEMENT AREAS FOR PHASE I
litamnl^BsiaN CONSTANTS
liflMW * MMMMDiL * mtammmm •tat
701 B StrrR, Suite 800, San Oiego, CA 9210!
6I9-235-6«7t FAX 619-234^3<9
EXHIBIT "J^"
ACCESS EASEMENT POINSETTIA PROPERTIES. PLANNING AREAS 2. 3, &: 4
LEGEND:
PHASE 2 ACCESS EASEMENT
PHASE J ACCESS EASEMENT
Pa^je 2 of io
PROJECTDESIGN CONSULTANTS
PUMflNO • BNVIRCMMENLU, • BNCINSBIUNO « SVUVBTAJPS
701 BSliM^BuiltaoOk SmDi^CAnm
<1>.2354471 FAX
EXHIBIT
MAINTENANCE EASEMENT
POINSETTIA PROPERTIES, PLANNING AREAS 2, 3. & 4
LEGEND:
^ PHASE 2 MAINTENANCE EASEMENT
PHASE 3 MAINTENANCE EASEMENT
piKOfi. 3 of b
PROJECTDBSIGN CONSULTANTS
PlMNOn < BHVaCNUBTUL • BNCBNEBUNO < SVKVBYAlfS
701BSM^ Soto MA taDkwi, CA 92101
<1M35^1 FAX SlMiUtUa
EXHIBIT " A "
MAINTENANCE &c ACCESS EASEMENT
POINSETTIA PROPERTIES. PLANNING AREAS 2. 3. &: 4
LEGEND:
PHASE 4 MAINTENANCE * ACCESS EASEMENT
PHASE 5 MAINTENANCE & ACCESS EASEMENT
PHASE 6 MAINTENANCE Jc ACCESS EASEMENT
PHASE 7 MAINTENANCE & ACCESS EASEMENT
pa^e. of (p
PROJECFDESIGN CONSULTANTS
PtANNoa « ENVDKt4ua<ca • BNCHNmiuNO • simBT/ors
61»^3M471 FAX (l»4MOM9
EXHIBIT "_AJ' MAINTENANCE &: ACCESS EASEMENT POINSETTIA PROPERTIES. PLANNING AREAS 2, 3. &: 4
LEGEND:
PHASE a MAINTENANCE Ic ACCESS EASEMENT
PHASE 9 MAINTENANCE i ACCESS EASEMENT
PHASE 10 MAINTENANCE Sc ACCESS EASEMENT
PHASE U MAINTENANCE 4 ACCESS EASEMENT
Pa^e 5 of lp
PROJECTDESIGN CONSULTANTS
PUNNN3 * ENmONUEKaL * ENOINBBIUND • SUXVBr/OfS
701B8ln<SBtai00k taDkyi, CA 92101
<1»^»4471 FAX tl^^iUOAt
EXHIBIT " A_" MAINTENANCE k ACCESS EASEMENT
POINSETTIA PROPERTIES. PLANNING AREAS 2. 3. &: 4
LEGEND:
PHASE^ 12 MAINTENANCE 4 ACCESS EASEMENT f'^::^:';\ PHASE 15 MAINTENANCE & ACCESS EASEMENT
PHASE 13 MAINTENANCE Ic ACCESS EASEMENT
PHASE 14 MAINTENANCE Ic ACCESS EASEMENT of lo
PROJECTDESIGN CONSULTANTS
PiANNwa • BNvnaoffimvu.« BNCBNmuNa • svuxwrars
701BSln<BdMHa BnDkao, CA 92101 <1»^JM471 FAX 619<tM4tM9
EXHIBIT "B"
ANNEXATION PROPERTY
The Annexation Property is more particularly described as that
certain real property located in the City of Carlsbad, County of
San Diego, State of California, more generally described as:
All of Map of Carlsbad Tract CT 00-16, Poin-
settia Properties, in the City of Carlsbad,
County of San Diego, State of California,
according to Map thereof No. 14407, filed in
the Office of the County Recorder of San Diego
County, June 19, 2002, except Phase 1.
18324.220-6024.FCM 032402
DRE PHASE LINE (TYP.)
DRE PHASE NUMBER (TYP.)
PEDESTRIAN TRIAL LEGEND
SYMBOL DESCRtPTlON
PRIMARY H0HTH-80UTH PEDESTRIAN TRAM.
PRIMARY EAST-WEST PEDESTRIAN TRAILS URBAN
itUttaf* AfctltlcJm* 1 Maailif
San Dt»go
iiai)ikii(tii.iu)i*}ti
InnCllaga.CA ttm
1ml:(llfJ 334-r444
Fas:lil'l334-1901
Hawpo/l iHch • tasaitna
0I-CD4
3-19-02
biSt UA
SHEET
1 CITY OF CARLSBAD
ENGINEERING DEPARTUENT
SHEETS
1
PEDESTRIAN TRAIL EXHIBIT FOR:
WATERS END
IPOINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: UOYD B. HUBBS
CITT BUHKSr Kt! out DATE
OWN BY: CHKD BY: PROJECT NO. DRAWING NO.
DRE PHASE LINE (TYP.)
DRE PHASE NUMBER (TYP.)
WALL & FENCE MAINTENANCE LEQEND<
SYMBOL
ititiiitntiiiiiiti
DESCRiPTION
S'-B* HIGH WOOD FENCE (HOME OWNER MAINTAINED)
WOOD FENCE ABOVE BLOCK RETAINING WALL
(HOME OWNER MAINTAINED)
MASONRY BLOCK RETAINING WA).L (PER CIVIL PLANS)
(HOME OWNER MAINTAINED!
JM.L (PER CIVIL PLANS) ^ i AI LJ£t\
C&.Q, ufs A'v*^
iiiaiii
8' HIGH SPUT FACE BLOCK WALL IH.O.A MAINTAINED)
4' TUBULAR STEEL FENCE ABOVE 2' SPUT FACE BLOCK WAU
m.O.A MAINTAINED)
6'-8- NIGH SPLIT FACE BLOCK PILASTER IH.O.A. MAINTAINED)
3'-0' HIGH CHAIN LINK FENCE m.O.A. MAINTAINED)
URBAN
,- r ' . • . 1 "
URBAN
(I •
i m:
Ttaittau Aicktltctui I tl»kl*t
San DI*ao
}|l|]lktl(i*MBi>i 111
lanDltgo.CA IHAI
tal: J4lf| 134-f 444 Fax:(4ll)21^-t3(>1
Mwpari Itoch - roMdtna
Ttaittau Aicktltctui I tl»kl*t
San DI*ao
}|l|]lktl(i*MBi>i 111
lanDltgo.CA IHAI
tal: J4lf| 134-f 444 Fax:(4ll)21^-t3(>1
Mwpari Itoch - roMdtna
K8JHI
nnn bite
DUWNiy
SHEET
1 CITY OF CARLSBAD
ENGINEERING DEPARTIIENT
SHEETS
4
WALL i FENCE MAINTENANCE EXHIBIT FOR:
WATERS END
IPOINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: LLOYD B. HUBBS
DATt
OWN BY: CHKD BY:
RVWD BY:
PROJECT NO.
cr-oo-js
DRAWING NO.
XXX-XX
WALL & FENCE MAINTENANCE LEGEND'
SYMBOL DESCRIPTION
"• S--6' HIGH WOOD FENCE (HOME OWNER MAINTAINED)
WOOD FENCE ABOVE BLOCK RETAINING WALL
(HOME OWNER MAINTAINED)
MASONRY BLOCK RETAINING WALL (PER CIVIL PLANS)
(HOtffi OWNER MAINTAINED)
I...... 5- HIQH SPUT FACE BLOCK WALL IH. 0. A. MAINTAINED)
111 • 11 •• ' 4' TUBULAR STEEL FENCE ABOVE 2' SPUT FACE BLOCK WALL
Oi 0. A. MAINTAINED)
El S'-B- HIGH SPUT FACE BLOCK PILASTER (H. 0. A. MAINTAINED)
3'-0' HIGH CHAIN UNK FENCE (H. 0. A. MAINTAINED)
DRE PHASE NUMBER (TYP.)
DRE PHASE LINE (TYP.)
URBAN
lUt.ft AfCklllcltIt
San DI«go
rtiiitbiiriti.iwitdar
lanDUgo.CA flUI Tal; lilfl 314-1444 Fax:.(4t9] 334.)]0I
Nawpod Icoch • raudcna
mmr
SHEET
3 CITY OF CARLSBAD
ENGINEERING DEPARTMENT
SHEETS
4
WALL & FENCE MAINTENANCE PLAN FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: LLOYD B. HUBBS EXMIIB U-IVOI
DAtf
DWN BY: CHKD BY:
RVWD BY:
PROJECT NO.
CT-00-18
DRAWING NO.
XXX-XX
DRE PHASE NUMBER (TYP.)
DRE PHASE LINE (TYP.)
WALL & FENCE MAINTENANCE LEGEND'
SYMBOL
liiiiiliiiiiiiiiiii
IIIHIII
SI
DESCRPTION
S'-B' HIGH WOOD FENCE (HOME OWNER MAINTAINED)
WOOD FENCE ABOVE BLOCK RETAINING WALL
(HOME OWNER MAINTAINED)
MASONRY BLOCK RETAINING WALL (PER CIVIL PUNS)
(HOME OWNER MAINTAINED)
B- HIGH SPUT FACE BLOCK WALL (aO.A MAINTAINED)
4' TUBULAR STEEL FENCE ABOVE 2' SPLIT FACE BLOCK WAU
(Rq.A MAINTAINED)
S'-B' HIGH SPUT FACE BLOCK PILASTER IH.O.A. MAINTAINED)
3'-0- HIGH CHAIN UNK FENCE (H.O.A. MAINTAINED)
URBAN
.Uicir*A(tkltlctir« IfiMitUi
Son Dlago
nilIlliIlri(l.lR)tilOI lanDlBgo.CA tllOl Ul: |i)t| 334-V444 _ FOI:jllf)a34-|]0l
III j Newport leach • PoMdena
OI-OU
OAIE UA
MAWHIV PUNIDAIEyBD/iaON KMlUie/REVISION
WALL & FENCE MAINTENANCE EXHIBIT FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: UOYD B. HUBBS
teMart
EXniEB Xl-^W
DATC
OWN BY: CHKD BY:
RVWD BY;
PROJECT NO.
CT-00-18
DRAWING HO.
XXX-XX
EXHIBITS'
WATERS END - POINSETTIA PROPERTIES P.A. 2. 3 AND 4
BALCONY. TRELLIS. DECK AND OTHER ADDITIONS
__AmmA ESONAS SHEET 1 OF 2
ISOUTHI
EXHIBIT
WATERS END - POINSETTIA PROPERTIES P.A. 2. 3 AND 4
BALCONY, TRELL AND OTHER ADDITIONS
^^^fmAmams SHEET 2 OF 2
INORTHI
m » SffKt, Sua 100, Sui Ditto. CA niOl
itt-uiMii FAX iii-23t-(a4*
EXHIBIT T
WATERS END - POINSETTIA PROPERTIES P.A. 2, 3 AND 4
SIGHT DISTANCE CORRIDORS
^^^^ PHASE I UMIT
INDICATES SIGHT
DISTANCE CORRIDOR
PtfcmnDESKJNCaNsoLTxms
701 R Sttrn, Suite 800, San r>'ego, CA 92)01
6I9-233-M71 FAX 619-234-0349
rl /' ^
MATCHLNE - SEE SHEET 3
- 1. ^
DRE PHASE NUMBER (TYP.)
DRE PHASE LINE (TYP.)
LANDSCAPE MAINTENANCE LEGEND'
SYMBOL DESCRPTION
H.O.A MAINTAINED LANDSCAPE AREA
CITY OF CARLSBAD
ENGINEERING DEPARTMENT
SHEETS
12
LAW)SCAPE MAINTENANCE EXHIBIT FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: UOYD B. HUBBS
-HfYSWlBII
EXPnEi n-suit
DAK
PROJECT NO.
CT-00-1B
DRAWING NO.
XXX-XX
LANDSCAPE MAINTENANCE LEGEND.
SYMBOL DESCRiPTION
H.O.A MAINTAINED LAIffiSCAPE AREA
DRE PHASE LINE (TYP.)
DRE PHASE NUMBER (TYP.)
CITY OF CARLSBAD
ENGINEERING DEPARTUEHT
SHEETS
12
LANDSCAPE MAINTENANCE EXHIBIT FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: LLOYD B. HUBBS
6Alt
PROJECT NO.
CT-00-16
DRAWING NO.
XXX-XX
DRE PHASE LINE (TYP.)
DRE PHASE NUMBER (TYP.)
LANDSCAPE MAINTENANCE LEGEND
SYMBOL DESCRIPTION
aO.A. MAINTAIIED LANDSCAPE AREA
I Laa<ie«pt AicMltctm i tlinnlni
San Diego
iiaiiikitiiii.uitiHi
JanDlago.CA tllDl Ut: ((tr) 234-t444 fai:(ilt)334-1301
I Newport leach - f oMdemi
01.004
m ox
CITY OF CARLSBAD
ENGINEERING DEPARTMENT
SHEETS
12
UNDSCAPE MAINTENANCE EXHIBIT FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: UOYD B. HUBBS EXniEt t2-IM)l
bATE
DWN BY: CHKD BY:
RVWD BY:
PROJECT NO.
CT-00-16
DRAWING NO.
XXX-XX
DRE PHASE NUMBER (TYP.)
DRE PHASE LINE (TYP.)
LANDSCAPE MAINTENANCE LEGEND.
SYMBOL DESCRIPTION
H.O.A MAINTAUED LANDSCAPE AREA
8BS
URBAN
LiadiMf (MciltTctri 1 *\aat\%t
San Dlogo
Jllllllillriil.KUt ISI lOADlBQo.CA MIO! Tal: (iitt 114-t444 FOI:|4I*| 334-1301
Newport IcocD - ra»dina
01.004
miea
DAIE
SHEET
5 CITY OF CARLSBAD
ENGINEERING DEPARTMENT
SHEETS
12
UNDSCAPE MAINTENANCE EXHIBIT FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: UOYD B. HUBBS EXmS t3.1VOI
DATt
DWN BY:
CHKD BY: RVWD BY:
PROJECT NO.
CT-00-18
DRAWING NO.
XXX-XX
DRE PHASE NUMBER (TYP.)
DRE PHASE LINE (TYP.)
LANDSCAPE MAINTENANCE LEGEND.
SYMBOL DESCRIPTION
H.O.A MAINTAINED UNDSCAPE AREA
URBAN
U.flCiPt Altklltcliil 1 riDMill
San DIvgo
ntlJlbllr(il.ti)l«ltl lonaiaBB.CA I11BI
til:I4l?)334-l444
Foi: lilf) 994.1301 Niwpod iMch. rotadcna
3-inn
' mmiemmi mrniumm
SHEET
6 CITY OF CARLSBAD
ENGINEERING DEPARTMENT
SHEETS
12
UNDSCAPE MAINTENANCE EXHIBIT FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2. 3 & 4)
APPROVED: UOYD B. HUBBS
M: iiUt
DWN BY: CHKD BY:
RVWD BY:
PROJECT NO.
CT-00-18
DRAWING NO.
XXX-XX
DRE PHASE LINE (TYP.)
DRE PHASE NUMBER (TYP.)
LANDSCAPE MAINTENANCE LEGEND.
SYMBOL DESCRIPTION
aO.A. MAINTAUED LANDSCAPE AREA
URBAN
San Diego
;iiiiik llllll. t<ii)i}«i
SanQiBSO-C^ >110l lalUtlf) 334-1444 fa»:|11f)334-120)
NewiMit leoch - PoHdcna
0I4»4
HOJEn S.1»4B
•Aft
UX
EMDAIE/IMOU FMOAIE/ltViSW
SHEET
7 CITY OF CARLSBAD
ENGINEERING DEPARTMENT
SHEETS
12
UNDSCAPE MAINTENANCE EXHIBIT FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: LLOYD B. HUBBS
atVEIhUBII Ufe tstn
DWN BY:
CHKD BY: RVWD BY:
PROJECT NO.
CT-00-18
DRAWING NO.
XXX-XX
LANDSCAPE MAINTENANCE LEGEND.
SYMBOL
m
DESCRiPTION
RO.A MAINTAINED LANDSCAPE AREA
0 M n
\ ! I I , . I I
lURBAN
> lantitatt Aieliltt cliiii i t\tar\t% I San Diego
! 7)ei)iiifiiiii.iiiiiiiii
laaDltae.CA fllOl lal: (419) 334-1444 Foi:li>l}334-I30l
I Newport leoch • rotacteiui
0I4>M
nOJECT 3.lf4)3
tlAlE UA.
MAWNIV WiJIBMEyiEVBlflN H*(l8AI!/»EVI!iaN
UNDSCAPE MAINTENANCE EXHIBIT FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2, 3 & 4)
APPROVED: LLOYD B. HUBBS Expwa nsun
eUVENsMen
DWN BY:
CHKD BY:
RVWD BY:
PROJECT NO.
CT-00-18
DRAWING NO.
XXX-XX
DRE PHASE LINE (TYP.1
DRE PHASE NUMBER (TYP.)
LANDSCAPE MAINTENANCE LEGEND'
SYMBOL DESCRiPTION
m
H.O.A. MAINTAINED LANDSCAPE AREA
WQl
I Ii44i£i7t 4rt4lltcliti 1 flan.Ui ' Son DIago
;ii)]itiit(i«i.iBtN»i lanOi»oa.CA 13101 1*1:(IIVJ334.f444 I FOI:|4lt)334.1301
I NowiMri hach. FoHdina
TOE—
• mrnrnmi mmsmum
CITY OF CARLSBAD
ENGINEERING DEPARTMENT
SHEETS
12
UNDSCAPE MAINTENANCE EXHIBIT FOR:
WATERS END
(POINSETTIA PROPERTIES PLANNING AREAS 2. 3 & 41
APPROVED: UOYD B. HUBBS ExniEB n-ivoi
Mi iiM
DWN BY: CHKD BY:
RVWD BY;
PROJECT NO.
CT-00-18
DRAWING NO.
XXX-XX
EXHIBIT "Jd-"
BUS STOPS
POINSETTIA PROPERTIES, PLANNING AREAS 2, 3, & 4
oni-i o^<^ ^-^^ '^^^^
Pl PROJECTDESIGN CONSULTANTS
Fusmm • BNVOtoNUEimL * ENcuNrauNa • suxvsr/CH^
701 BSkM^ Bote HOk SMDieao, CA. »2101
t)M3i^4n FAX <l»aM434»
LEGEND:
EXHIBIT ^'^j^gj^-j.
POINSETTIA PROPERTIES. PLANNING AREAS 2. 3. & 4
sH£rr) OF J
CLEARWATER STREET
206
215
205
216
\7mmm ^\mmi
126 125
127
PHASE- J LANDSCAPE AREA TO BE
MAINTAINED BY HOMEOWNERS
PHASE 3 LANDSCAPE AREA TO BE
MAINTAINED BY HDMEOWERS
PHASE 5 LANDSCAPE AREA TO BE
UmTAINED BY HOMEOWNERS
PROJECTDESIGN CONSULTANTS
ntKNOn . ENVDMOfflKDU. • BNCWBBBWO • SUKVBir/OTS
6i»^JV6«i FAX <l«^MM^
SHEET 2 OF 3
LCCENO: LM^OSCAPEm^J'^' PHASESir^^lT^i^EbmERS
EXHIBIT
LANDSCAPE EASEMENT
POINSETTIA PROPERTIES. PLANNING AREAS 2, 3. &: 4
SHEETS 0F3
lEGEND:
PHASE 6 LANDSCAPE AREA TO BE MAINTAINED BY HOMEOWNERS
PHASE 15 LANDSCAPE AREA TO BE
MAINTAINED BY HOMEOmERS
PROJECTDESIGN CONSULTANTS
PUNNNO « ENvnoraiBNUi. • BNCBNEBSIND • Sumer/CSS 701 B8liB<SiteaOOb SmJ3k^CA.nm 61».23M4n FAX a9.3M<at»