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Recording Requested By:
FIRST AMERICAN TITLE
National Commercial Services
RECORDING REQUESTED BY:
WHEN RECORDED, MAIL TO:
DZIDA, CAREY & STEINMAN (SDH)
3 Park Plaza, Suite 750
Irvine, CA92614 4684
DOC #2006-0719748
OCT10,2006 11:46 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH. COUNTY RECORDER
FEES: 463.00 WAYS: ' 2
PAGES: 74
2006-0719748-
(Space Above for Recorder's Use)
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
GREYHAWK BUSINESS CENTER
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
GREYHAWK BUSINESS CENTER
TABLE OF CONTENTS
DESCRIPTION PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION..: 2
1.1. Definitions 2
1.2. Interpretation 7
ARTICLE II GREYHAWK BUSINESS CENTER ASSOCIATION 7
2.1. General Duties And Powers 7
2.2. Specific Duties And Powers 7
2.3. Standard of Care, Nonliability...... 10
2.4. Membership 12
2.5. Voting Rights 13
2.6. Repair And Maintenance 13
2.7. Unsegregated Real Property Taxes 15
ARTICLE in DESIGN REVIEW COMMITTEE 15
3.1. Members of Committee 15
3.2. Powers And Duties 15
3.3. Review of Plans And Specifications 16
3.4. Meetings And Actions of The Committee 17
3.5. No Waiver of Future Approvals 17
3.6. Compensation of Members 18
3.7. Inspection of Work 18
3.8. Variances 18
3.9. Pre-approvals 18
3.10. Appeals 18
ARTICLE IV PROPERTY EASEMENTS AND RIGHTS 19
4.1. Easements , 19
4.2. Right to Grant Easements 20
ARTICLE V ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS 20
5.1. Personal Obligation to Pay Assessments 20
5.2. Funds of The Association 20
5.3. Purpose of Assessments 20
5.4. Waiver of Use 21
5.5. Supplemental Annual Assessments 21
5.6. Commencement And Collection of Annual Assessments 21
5.7. Capital Improvement Assessments 22
5.8. Prepayment of Assessment Upon Transfer 22
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TABLE OF CONTENTS
DESCRIPTION PAGE
ARTICLE VI INSURANCE 22
6.1. Duty to Obtain Insurance; Types 22
6.2. Waiver of Claim Against Association 23
6.3. Right And Duty of Owners to Insure 23
6.4. Notice of Expiration Requirements ; 23
6.5. Insurance Premiums 24
6.6. Trustee For Policies 24
6.7. Actions as Trustee 24
6.8. Annual Insurance Review 24
6.9. Required Waiver 24
ARTICLE VII DESTRUCTION OF IMPROVEMENTS 25
7.1. Restoration of The Properties 25
7.2. Sale of Properties And Right to Partition 26
7.3. Interior Damage 26
7.4. Notice to Owners And Listed Mortgagees 26
ARTICLE VIII USE RESTRICTIONS 27
8.1. Prohibited Uses 27
8.2. Authorized Uses 27
8.3. Parking and Vehicle Restrictions 27
8.4. Insurance Rates 27
8.5. Nuisances 28
8.6. Maintenance and Repair 28
8.7. Drainage 28
8.8. Unsightly Articles 28
8.9. Temporary Prefabricated Structures/Dumpsters 29
8.10. No Mining or Drilling 29
8.11. Hazardous Materials 29
8.12. Obligations of Tenants 29
8.13. Stgnage and Advertising 29
8.14. Antennae 30
ARTICLE IX EMINENT DOMAIN 30
9.1. Property Condemnation 30
9.2. Condemnation of Common Property 31
9.3. Condemnation of Condominiums 31
9.4. Condemnation of Portions of Condominiums 31
9.5. Portions of Awards in Condemnation Not Compensatory For Value of
Real Property 32
9.6. Notice to Owners And Mortgagees 32
ARTICLE X RIGHTS OF MORTGAGEES 32
10.1. General Protections 32
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TABLE OF CONTENTS
DESCRIPTION PAGE
10.2. Additional Rights 32
ARTICLE XI ENFORCEMENT 35
11.1. Enforcement of Restrictions 35
11.2. Violations Identified by the Association 35
11.3. Nonpayment of Assessments 36
ARTICLE XII DURATION AND AMENDMENT 39
12.1. Duration 39
12.2. Termination And Amendment 39
ARTICLE XIII GENERAL PROVISIONS 40
13.1. Mergers or Consolidations 40
13.2. No Public Right or Dedication..... 40
13.3. Notices 41
13.4. Constructive Notice And Acceptance 41
ARTICLE XIV DECLARANT'S RIGHTS AND RESERVATIONS 41
14.1. Construction Rights 41
14.2. Sales And Marketing Rights 41
14.3. Creating Additional Easements 41
14.4. Architectural Rights 42
14.5. Assignment of Rights 42
14.6. Amendments 42
14.7. Exercise of Rights 42
14.8. Use of Properties 42
14.9. Participation in Association 42
14.10. Declarant Approval of Actions 42
14.11. Marketing Name 43
14.12. Power of Attorney 43
14.13. Dispute Resolution.: 43
ARTICLE XV PROVISIONS BENEFITING PALOMAR FORUM ASSOCIATES 44
15.1. CFDNo.3 45
15.2. Amendments to and Termination of this Declaration ; 45
ARTICLE XVI ANNEXATION OF ADDITIONAL PROPERTY 45
16.1. Additions by Declarant 45
16.2. Other Additions 46
16.3. Rights And Obligations - Added Territory 46
16.4. Notice of Addition 46
16.5. Deannexation And Amendment 47
16.6. Power of Attorney 47
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TABLE OF CONTENTS
DESCRIPTION PAGE
ARTICLE XVII PROVISIONS BENEFITING LOCAL JURISDICTION 47
17.1. City Enforcement Right 47
17.2. Notice to City of Amendments 47
17.3. Failure of Association to Maintain 47
17.4. Special Assessments Levied by the City 48
17.5. Landscape Maintenance Responsibilities, 48
17.6. Parking Requirements 48
17.7. Certain Common Property Improvements 48
17.8. Common Property Easements 48
17.9. Sight Distance Corridors 49
17.10. Additional Maintenance Covenants 49
EXHIBITS
EXHIBIT "A" - ANNEXABLE TERRITORY
EXHIBIT "B" - PFA PROPERTY
EXHIBIT "C" - ALLOCATION OF ASSESSMENT UNITS/PERCENTAGE SHARE OF
COMMON EXPENSES
EXHIBIT "D" - DEPICTION OF EATING AREAS, PARKING AREAS AND
LANDSCAPED AREAS
EXHIBIT "E" - ADDITIONAL MAINTENANCE COVENANTS
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
GREYHAWK BUSINESS CENTER
THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND
RESERVATION OF EASEMENTS is made by GREYHAWK ASSOCIATES, a California
corporation ("Declarant"). The capitalized terms used in the Preamble are defined in Article I.
PREAMBLE:
A. Declarant is the owner of real property located in the City of Carlsbad, County of
San Diego, State of California, described as follows ("Phase 1"):
Units, Common Area and Association Property, as shown on the
Condominium Plan Recorded on Q^oVyg r \O 2006, as
Instrument No. QT\cnM€y , of Official Records of San
Diego County, California, consisting of Lot 5 of Carlsbad Tract No. 99-
06, in the City of Carlsbad, County of San Diego, State of California,
according to Map thereof No. 14831, filed in the Office of the County
Recorder of San Diego County, June 29, 2004.
B. Declarant intends to create a "condominium project," as defined in Section
1351 (f) of the California Civil Code, to subdivide the Properties as authorized by Section 66427
of the California Government Code into "condominiums" as defined in Section 783 of the
California Civil Code, and to impose mutually beneficial restrictions under a general plan of
improvement for the benefit of all the condominiums created pursuant to the Davis-Stirling
Common Interest Development Act.
C. Declarant hereby declares that the Properties are to be held, conveyed,
encumbered, leased, used and improved subject to the limits, restrictions, reservations, rights,
easements, conditions and covenants in this Declaration, all of which are in furtherance of a plan
for the subdivision, maintenance, improvement and sale of the Properties. All provisions of this
Declaration are imposed as equitable servitudes on the Properties. All limits, restrictions,
reservations, rights, easements, conditions and covenants in this Declaration shall run with and
burden the Properties and shall be binding on and for the benefit of all of the Properties and all
Persons having or acquiring any interest in the Properties and their successive owners and
assigns.
D. Declarant and its successors and assigns, covenant that each undivided interest in
the Common Area, the appurtenant Membership in the Association, all easements conveyed
therewith and fee title to the respective Condominium conveyed therewith shall not be separated
or separately conveyed, and each such undivided interest, Membership and easement shall be
deemed to be conveyed or encumbered with its respective Condominium even though the
description in the instrument of conveyance or encumbrance may refer only to the
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Condominium. This restriction on severability of the component interests of the Condominiums
shall not extend beyond the period for which the right to partition the Properties is suspended in
accordance with Section 1359 of the California Civil Code. Any conveyance by an Owner of a
Condominium, or any portion thereof, shall be presumed to convey the entire Condominium,
together with a Membership in the Association.
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1. Definitions. Unless otherwise expressly provided, the following words and
phrases when used in this Declaration have the following meanings.
1.1.1 Articles. Articles mean the Articles of Incorporation of the Association as
they may be amended from time to time.
1.1.2 Annexable Territory. Annexable Territory means the real property
described in Exhibit "A" which may be made subject to this Declaration pursuant to Article
XIV. Any references in this Declaration to Annexable Territory are references to the Annexable
Territory as a whole and to portions thereof.
1.1.3 Assessment. Assessment means any Annual Assessment, Capital
Improvement Assessment, Reconstruction Assessment and Special Assessment.
1.1.4 Annual Assessment. Annual Assessment means a charge levied against
the Owners and their Condominiums, representing their share of Common Expenses calculated
as provided in Article V. The Annual Assessment is a regular assessment as described in
California Civil Code Section 1366.
1.1.5 Assessment Unit. Assessment Unit(s) means the number of Assessment
Units allocated to each Condominium as shown on Exhibit "C."
1.1.6 Association. Association means GREYHAWK BUSINESS CENTER
ASSOCIATION, a California nonprofit corporation and its successors in interest. The
Association will be an "association" as defined in Section 1351 (a) of the California Civil Code.
The Association will be formed prior to the first Close of Escrow. If the foregoing name is
unavailable, the Association shall be incorporated under such name as the incorporator deems
appropriate.
1.1.7 Association Maintenance Funds. Association Maintenance Funds means
the accounts created for Association receipts and disbursements pursuant to Article V.
1.1.8 Association Property. Association Property means real or personal
property designated by the Declarant as Association Property and therefore made subject to the
restrictions on Association Property established in the Restrictions. Any references in this
Declaration to Association Property are references to the Association Property as a whole and to
portions thereof. The Association Property includes Lot 5 of Carlsbad Tract No. 99-06 (as more
fully described in Preamble Paragraph A) excluding the Units and the Common Area shown on
the Condominium Plan.
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1.1.9 Board or Board of Directors. Board or Board of Directors means the
Association's Board of Directors.
1.1.10 Budget. Budget means a written, itemized estimate of the Association's
income and Common Expenses prepared pursuant to the Bylaws.
1.1.11 Building Structure and Systems. Building Structure and Systems means
the structural portions of the building in which the Condominiums are located and/or the
mechanical, electrical, life safety, plumbing, and heating and cooling systems and components.
1.1.12 Bylaws. Bylaws means the Bylaws of the Association as adopted by the
Board and as amended from time to time.
1.1.13 Capital Improvement Assessment. Capital Improvement Assessment
means a charge levied against the Owners and their Condominiums, representing their share of
the Association's cost for installing or constructing capital Improvements on the Common
Property. Capital Improvement Assessments shall be levied in the same proportions as Annual
Assessments. Capital Improvement Assessments are special assessments as described in
California Civil Code Section 1366.
1.1.14 City. City means the City of Carlsbad, California, and its various
departments, divisions, employees and representatives.
1.1.15 Close of Escrow. Close of Escrow means the date on which a deed is
Recorded conveying a Condominium from Declarant to another Owner.
1.1.16 Common Area. Common Area means the volume of airspace described
in the Condominium Plan, which shall be owned by Owners as tenants-in-common. Any
references in this Declaration to Common Area are references to the Common Area as a whole
and to portions thereof.
1.1.17 Common Expenses. Common Expenses means those expenses for which
the Association is responsible under this Declaration, including the actual and estimated costs of
and reserves for maintaining, managing and operating the Common Property. Common
Expenses also include unpaid Special Assessments, Reconstruction Assessments and Capital
Improvement Assessments and "Assessments" for the Properties assessed by the Master
Association under the Master Declaration. Common Expenses include the cost of all utilities
metered to more than one Condominium, other commonly metered charges for the Properties,
trash collection and removal (as applicable); managing and administering the Association
including, compensation paid by the Association to managers, accountants, attorneys and other
employees; fire sprinkler and systems maintenance; security systems maintenance; gardening
and other services benefiting the Common Property, fire, casualty, liability, workers'
compensation, errors and omissions and director, officer and agent liability insurance, and other
insurance covering the Properties and the Directors, officers and agents of the Association;
bonding the members of the Board, taxes paid by the Association, including any tax assessed
against the Properties, amounts paid by the Association for discharge of any lien or encumbrance
levied against the Properties, and all other expenses incurred by the Association, for any reason
whatsoever in connection with the Properties, for the common benefit of the Owners.
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1.1.18 Common Property. Common Property means the Common Area and the
Association Property. Any references in this Declaration to Common Property are references to
the Common Property as a whole and to portions thereof.
1.1.19 Condominium. Condominium means an estate in real property consisting
of an undivided fee simple ownership interest in the Common Area, together with a separate
ownership interest in fee in one or more Units and all easements appurtenant thereto. Subject to
the provisions of Article IX, the undivided fee simple interest in the Common Area of each
Owner is appurtenant to each Condominium and is a fraction the numerator of which is the
number of Units owned by such Owner and the denominator of which is the total number of
Units shown on the Condominium Plan. The Common Area shall be held by the Owners of
Condominiums as tenants-in-common.
1.1.20 Condominium Plan. Condominium Plan means the Recorded plan, as
currently in effect, for the Properties consisting of (a) a description or survey map of the
Properties, which shall refer to or show monumentation on the ground, (b) a three-dimensional
description of the Properties, one or more dimensions of which may extend for an indefinite
distance upwards or downwards in sufficient detail to identify the Association Property,
Common Area and each Unit, and (c) a certificate consenting to the Recordation thereof signed
and acknowledged by the record owner of fee title to the Properties, and by either the trustee or
the Mortgagee of each Recorded Mortgage encumbering the Properties. :
1.1.21 County. County means San Diego County, California, and its various
departments, divisions, employees and representatives.
1.1.22 Declarant. Declarant means GREYHAWK ASSOCIATES, a California
corporation, its successors, and any Person to which it shall have assigned any of its rights under
this Declaration by an express written assignment. As used in this Section, "successor" means a
Person who acquires Declarant or substantially all of its assets, or who merges with Declarant,
by sale, merger, reverse merger, consolidation, sale of stock or assets, operation of law or
otherwise. Unless otherwise expressly provided in this Declaration, all actions that may be taken
by Declarant, may be chosen by Declarant in its sole discretion.
I.I .23 Declaration. Declaration means this instrument as amended from time to
time.
1.1.24 Design Review Committee or Committee. Design Review Committee
or Committee means the Design Review Committee created pursuant to Article III.
1.1.25 Fiscal Year. Fiscal Year means the fiscal accounting and reporting period
of the Association selected by the Board.
1.1.26 Includes, Including. Whether capitalized or not, includes and including
mean "includes without limitation" and "including without limitation," respectively.
1.1.27 Improvements. Improvements means all structures and appurtenances
thereto, including buildings, walkways, irrigation systems, roads, driveways, parking areas,
fences, all types of walls, awnings, stairs, decks, docks, all types of landscaping and plantings,
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antennae, satellite dishes, windbreaks, the exterior surfaces of any visible structure and the paint
on such surfaces, poles, signs, exterior air conditioning and water softener fixtures or equipment.
1.1.28 Maintain. Whether capitalized or not, maintain means maintain, repair
and replace.
1.1.29 Manager. Manager means the Person retained by the Association to
perform management functions of the Association as limited by the Restrictions and the terms of
the agreement between the Association and the Person.
1.1.30 Master Association. Master Association means the Palomar Forum
Owners Association, a California nonprofit mutual benefit corporation formed pursuant to the
Master Declaration.
1.1.31 Master Declaration. Master Declaration means the Declaration of
Covenants, Conditions and Restrictions for Palomar Concourse, recorded in the Official Records
of the County on January 10,'2003, as Instrument No. 2003-0035144, as it may be amended from
time to time.
1.1.32 Membership. Membership means the voting and other rights and
privileges of members of the Association, as provided in the Restrictions, together with their
correlative duties.
1.1.33 Mortgage. Mortgage means any Recorded conveyance of a
Condominium or other portion of the Properties to secure the performance of an obligation.
1.1.34 Mortgagee. Mortgagee means a Person to whom a Mortgage is made,
unless the Person has assigned his rights under the Mortgage by a Recorded assignment. If the
Person has assigned his rights under the Mortgage by a Recorded assignment, then the assignee
of the rights is the Mortgagee.
1.1.35 Mortgagor. Mortgagor means a Person who Mortgages his property to
another.
1.1.36 Notice and Hearing. Notice and Hearing means written notice and a
hearing before the Board, as provided in the Bylaws.
1.1.37 Notice of Addition. Notice of Addition means an instrument Recorded
pursuant to Article XVI to annex additional real property to the Properties.
1.1.38 Owner. Owner means the Person or Persons, including Declarant,
holding fee simple interest to a Condominium. Each Owner has a Membership in the
Association. The term "Owner" includes a seller under an executory contract of sale but
excludes Beneficiaries.
1.1.39 Person. Person means a natural individual or any entity with the legal
capacity to hold title to real property. When the word "person" is not capitalized, the word only
refers to natural persons.
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1.1.40 Phase. Phase means Phase 1 and any portion of the Properties covered by
a Notice of Addition, unless otherwise defined in the applicable Notice of Addition.
1.1.41 Properties. Properties means the property described in Paragraph A of
the Preamble. The Properties are a "condominium project" as defined in Section 1351(f) of the
California Civil Code. The Properties are a "common interest development" as defined in
Section 1351(c) of the California Civil Code. Any references in this Declaration to the
Properties are references to the Properties as a whole and to portions thereof.
1.1.42 Reconstruction Assessment. Reconstruction Assessment means a charge
levied against the Owners and their Condominiums, representing their share of the Association's
cost to reconstruct any Improvements on the Common Property. Such charge shall be levied
among all Owners and their Condominiums in the same proportions as Annual Assessments.
Reconstruction Assessments are special assessments as described in California Civil Code
Section 1366.
1.1.43 Record, File, Recordation. Record, File, or Recordation means, with
respect to any document, entry of such document in official records of the County Recorder.
1.1.44 Restrictions. Restrictions mean this Declaration, the Articles, the
Bylaws, and the Rules and Regulations.
1.1.45 Rules and Regulations. Rules and Regulations mean the current rules
and regulations for the Properties adopted by the Board in accordance with the Restrictions.
1.1.46 Special Assessment. Special Assessment means either (a) a charge
against an Owner reimbursing the Association for costs incurred for corrective action, or (b) a
reasonable fine or penalty, plus interest and other charges on such Special Assessment as
provided for in this Declaration. Special Assessments do not include any late payment penalties,
interest charges or costs (including attorneys' fees) incurred by the Association in the collection
of Annual, Capital Improvement or Reconstruction Assessments.
1.1.47 Unit. Unit means a separate interest in space as defined in Section 1351(f)
of the California Civil Code. Each Unit is a separate freehold estate, as separately shown,
numbered and designated in the Condominium Plan. The windows and doors of any Unit are
portions of such Unit. In interpreting deeds, declarations and plans, the existing physical
boundaries of the Units and Condominiums or a Condominium constructed or reconstructed in
substantial accordance with the Condominium Plan and the original plans thereof, if such plans
are available, shall be conclusively presumed to be its boundaries, rather than the description
expressed in the deed, Condominium Plan or Declaration, regardless of settling or lateral
movement of the building and regardless of minor variances between boundaries, as shown on
the Condominium Plan or defined in the deed and Declaration, and the boundaries of a building
as constructed or reconstructed. The electrical boxes and heating, ventilation and air condition
systems serving each Unit are appurtenant to such Unit.
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1.2. Interpretation.
1.2.1 General Rules. This Declaration shall be liberally construed to effectuate
its purpose of creating a uniform plan for the creation and operation of a commercial
condominium development and for the maintenance of Common Property. As used in this
Declaration, the singular includes the plural and the plural the singular; and the masculine,
feminine and neuter each includes the other, unless the context dictates otherwise.
1.2.2 Articles, Sections and Exhibits. The Article and Section headings have
been inserted for convenience only, and may not be considered in resolving questions of
interpretation or construction. Unless otherwise indicated, any references in this Declaration to
Articles, Sections or exhibits are to Articles, Sections and exhibits of this Declaration. Exhibits
attached to this Declaration are incorporated herein by this reference.
1.2.3 Priorities and Inconsistencies. If there are conflicts or inconsistencies
between this Declaration and the Articles, Bylaws, Rules and Regulations, or Condominium
Plan, then the provisions of this Declaration shall prevail.
1.2.4 Severability. The provisions of this Declaration are independent and
severable. A determination of invalidity or partial invalidity or unenforceability of any one
provision of this Declaration by a court of competent jurisdiction does not affect the validity or
enforceability of any other provisions of this Declaration.
1.2.5 Statutory References. All references made in this Declaration to statutes
are to those statutes as currently in effect or to subsequently enacted replacement statutes.
ARTICLE II
GREYHAWK BUSINESS CENTER ASSOCIATION
2.1. General Duties And Powers. The Association has the duties and powers listed
in the Restrictions and also has the general and implied powers of a nonprofit mutual benefit
corporation, generally to do all things that a corporation organized under the laws of the State of
California may lawfully do which are necessary or proper in operating for the peace, health,
comfort, safety and general welfare of the Owners, subject only to the limits on the exercise of
such powers listed in Restrictions. Unless otherwise indicated in the Articles, Bylaws or this
Declaration, the powers of the Association may be exercised by the Board.
2.2. Specific Duties And Powers. In addition to its general powers and duties, the
Association has the following specific powers and duties.
2.2.1 Common Property. The power and duty to accept, maintain and manage
the Common Property in accordance with the Restrictions. The Association may install or
remove capital Improvements on the Common Property. The Association may reconstruct,
replace or refinish any Improvement on the Common Property.
2.2.2 Common Utilities. The power and duty to obtain, for the benefit of the
Properties, all commonly metered water and electric services.
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2.2.3 Granting Rights. The power to grant exclusive or nonexclusive
easements, licenses, rights of way or fee interests in the Common Property, to the extent any
such grant is reasonably required for either (a) utilities and facilities to serve the Common
Property and the Condominiums, (b) purposes of conformity with the as-built location of
Improvements installed by Declarant or (c) other purposes consistent with the intended use of the
Properties. The Association shall also be entitled to grant exclusive or non-exclusive easements
over the Common Property to Owners and their employees, patrons and invitees, if the granting
of such easements is reasonable and in the best interest of the Association or has no material
adverse impact on the Association and/or other Owners.
2.2.4 Employ Personnel. The power to employ Persons necessary for the
effective operation and maintenance of the Common Property, including legal, management and
accounting services.
2.2.5 Insurance. The power and duty to maintain insurance for the Common
Property in accordance with this Declaration.
2.2.6 Sewers and Storm Drains. The power and duty to maintain any private
sewer systems, private storm drains, or private drainage facilities within the Common Property in
accordance with the Restrictions.
2.2.7 Right of Entry. The Association has a limited right of entry in and on the
interior of all Condominiums to inspect the Properties, and may take whatever corrective action
it determines to be necessary or proper, consistent with this Declaration, which may be exercised
if authorized by two-thirds (2/3) of the Board. Entry on the interior of a Condominium by the
Association under this right of entry or by the Board, Declarant, or their representatives pursuant
to Civil Code Section 1375(d) may only be made (except in an emergency) after three (3) days
advance written notice to the Owner of the Condominium. The Association has no duty to
maintain any property or Improvements required to be maintained by the Owners. Nothing in
this Article limits the right of an Owner to exclusive occupancy and control over the interior of
his Condominium. However, an Owner shall permit a right of entry to the Association or any
person authorized by the Board to be exercised in any emergency originating in or threatening
his Condominium, whether the Owner is present or not. Any damage to a Condominium caused
by such entry shall be repaired by the Association as a Common Expense. On no less than
fifteen (15) days nor more than thirty (30) days' notice, each Owner and the occupants of such
Owner's Condominium shall vacate such Owner's Condominium to accommodate Association
efforts to perform any other maintenance or repairs pursuant to the Declaration. Each Owner
shall bear his own costs of temporary relocation. The Association has the right of entry to the
Condominiums and the right to remove Owners from their Condominiums, as necessary, to
accomplish its duties as provided in this Declaration.
2.2.8 Rules and Regulations. The power but not the duty to establish, amend,
restate, delete, and create exceptions to, the Rules and Regulations.
(a) Effective Date. All changes to the Rules and Regulations will
become effective fifteen (15) days after they are either (i) posted in a conspicuous place in the
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Association Property or (ii) sent to the Owners via first class mail or by any system or
technology designed to record and communicate messages.
(b) Areas of Regulation. The Rules and Regulations may concern
use of the Properties, signs, parking restrictions, minimum standards of property maintenance,
and any other matter within the Association's jurisdiction; however, the Rules and Regulations
are enforceable only to the extent they are consistent with the Restrictions and applicable laws.
(c) Limits on Regulation. The Rules and Regulations must apply
uniformly to all Owners. The Rules and Regulations shall not regulate the content of political
signs; however, they may regulate the time, place and manner of posting of such signs. No
modification to the Rules and Regulations may require an Owner to dispose of personal property
that was in a Condominium prior to the adoption of such modification if such personal property
was in compliance with all rules previously in force; however, this exemption shall apply only
during the period of such Owner's ownership of the Condominium and shall not apply to (i)
subsequent Owners who take title to the Condominium after the modification is adopted, or (ii)
clarifications to the Rules and Regulations. ' •
2.2.9 Borrowings. The power, but not the duty, to borrow money for purposes
authorized by the Articles, Bylaws and this Declaration, and to use the Association Property as
security for the borrowing.
2.2.10 Contracts. The power but not the duty to enter into contracts. This
includes contracts with Owners or other Persons to provide services or to maintain
Improvements in the Properties and elsewhere which the Association is not otherwise required to
provide or maintain pursuant to this Declaration.
2.2.11 Indemnification.
(a) For Association Representatives. To the fullest extent authorized
by law, the Association has the power and duty to indemnify Board members, Association
officers, Design Review Committee members, and all other Association committee members for
all damages, pay all expenses incurred, and satisfy any judgment or fine levied as a result of any
action or threatened action brought because of performance of an act or omission within what
such person reasonably believed to be the scope of the Person's Association duties ("Official
Act'9). Board members, Association officers, Design Review Committee members, and all other
Association committee members are deemed to be agents of the Association when they are
performing Official Acts for purposes of obtaining indemnification from the Association
pursuant to this Section. The entitlement to indemnification under this Declaration inures to the
benefit of the estate, executor, administrator and heirs of any person entitled to such
indemnification.
(b) For Other Agents of the Association. To the fullest extent
authorized by law, the Association has the power, but not the duty, to indemnify any other
Person acting as an agent of the Association (including, without limitation, the Manager) for
damages incurred, pay expenses incurred, and satisfy any judgment or fine levied as a result of
any action or threatened action because of an Official Act.
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(c) Provided by Contract. The Association also has the power, but
not the duty, to contract with any Person to provide indemnification in addition to any
indemnification authorized by law on such terms and subject to such conditions as the
Association may impose.
2.2.12 Participation of Violating or Affected Owners. Any Owner that is on
the Board or Design Review Committee that has made an application or request to the Board
and/or Design Review Committee shall not be entitled to participate in the decision respecting
same made by the Board and/or Design Review Committee. In such case the Board and/or
Design Review Committee shall be entitled to appoint another Owner as a temporary member of
the Board or Design Review Committee to break any tie vote.
2.2.13 Prohibited Functions.
(a) Off-site Nuisances. The Association shall not use any Association
funds or resources to abate any annoyance or nuisance emanating from outside the physical
boundaries of the Properties.'
(b) Political Activities. The Association shall not (i) participate in
federal, state or local political activities or activities intended to influence a governmental action
affecting areas outside the boundaries of the Properties (e.g. endorsement or support of (A)
legislative or administrative actions by a local governmental authority, (B) candidates for elected
or appointed office, or (C) ballot proposals), or (ii) conduct, sponsor, participate in or expend
funds or resources or any activity, campaign or event, including any social or political campaign,
event or activity which is not directly and exclusively pertaining to the authorized activities of
the Association.
2.3. Standard of Care, Nonliability.
2.3.1 Scope of Powers and Standard of Care.
(a) General Scope of Powers. Rights and powers conferred on the
Board, the Design Review Committee or other committees or representatives of the Association
by the Restrictions are not duties, obligations or disabilities charged upon those Persons unless
the rights and powers are explicitly identified as including duties or obligations in the
Restrictions or law. Unless a duty to act is imposed on the Board, Design Review Committee or
other committees or representatives of the Association by the Restrictions or law, the Board and
the committees have the right to decide to act or not act. Any decision to not act is not a waiver
of the right to act in the future.
(b) Business Affairs. This Section 2.3.l(b) applies to Board member
actions in connection with management, personnel, maintenance and operations, insurance,
contracts and finances and Design Review Committee member actions. Each Board member
shall perform the duties of a Board member in good faith, in a manner such Board member
believes to be in the best interests of the Association and with such care, including reasonable
inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
When performing his duties, a Board member is entitled to rely on information, opinions, reports
or statements, including financial data prepared or presented by:
SDHVJ0387.000 IV552523.10 9/22/2006 -10-
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(i) One or more officers or employees of the Association
whom the Board member believes to be reliable and competent in the matters presented;
(ii) Counsel, independent accountants or other Persons as to
matters which the Board member believes to be within such Person's professional or expert
competence; or
(iii) A committee of the Board upon which the Board member
does not serve, as to matters within its designated authority, which committee the Board member
believes to merit confidence, so long as, in any such case, the Board member acts in good faith,
after reasonable inquiry when the need therefore is indicated by the circumstances and without
knowledge that would cause such reliance to be unwarranted.
(iv) This Section 2.3.1(b) is intended to be a restatement of the
business judgment rule established in applicable law as it applies to the Association. All
modifications and interpretations of the business judgment rule applicable to the Association
shall be interpreted to modify and interpret this Section 2.3.1(b).
(c) Association Governance. Actions taken by Board and Design
Review Committee members, including actions in connection with interpretation and
enforcement of the Restrictions, architectural and landscaping control, regulation of uses within
the Properties, rule making and oversight of committees shall be reasonable, fair and
nondiscriminatory.
2.3.2 Nonliability.
(a) General Rule. No Person is liable to any other Person (other than
the Association or a 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 the Person's willful or malicious misconduct. No Person is 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. The Association is not liable for
damage to property in the Properties unless caused by the negligence of the Association, the
Board, the Association's officers, the manager or the manager's staff.
(b) Nonliability of Volunteer Board Members and Officers. A
volunteer Board member or volunteer Association officer shall not be personally liable to any
Person who suffers injury, including bodily injury, emotional distress, wrongful death or
property damage or loss as a result of the tortious act or omission of the volunteer.officer or
Board member if all applicable conditions specified in Section 1365.7 of the California Civil
Code are met.
(c) Nonliability of Owners. Pursuant to California Civil Code
Section 1365.9, no Owner shall be liable for any cause of action in tort which can be brought
against the Owner solely because of the Owner's undivided interest in the Common Area so long
as the Association keeps one or more policies of insurance which include coverage for general
SDHU0387.0001X352523.10 9/22/2006
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liability of the Association in the amount required by California Civil Code Section 1365.9 and
that insurance is in effect for the cause of action being brought.
2.4. Membership.
2.4.1 Generally. Every Owner shall automatically be a member of the
Association and shall remain a member of the Association until such Owner's Condominium
ownership ceases, at which time such Owner's Membership shall automatically cease. Except
for Class C Membership, ownership of a Condominium is the sole qualification for Membership.
Memberships are not assignable except to the Person to whom title to the Condominium is
transferred, and every Membership (other than Class C Membership) is appurtenant to and may
not be separated from the fee ownership of such Condominium. The rights, duties, privileges
and obligations of all Owners are as provided in the Restrictions.
2.4.2 Transfer. The Membership of any Owner may not be transferred,
pledged or alienated in any way, except on the transfer or encumbrance of such Owner's
Condominium, and then only to the transferee or Mortgagee of such Condominium. A
prohibited transfer is void and will not be reflected in the records of the Association. Any Owner
who has sold a Condominium to a contract purchaser under an agreement to purchase may
delegate the Owner's Membership rights to the contract purchaser. The delegation must be in
writing and must be delivered to the Association before the contract purchaser may vote. The
contract seller shall remain liable for all charges and Assessments attributable to the contract
seller's Condominium which accrue before title to the Condominium is transferred. If an Owner
fails or refuses to transfer his Membership to the purchaser of such Owner's Condominium on
transfer of title thereto, the Association may record the transfer in the Association's records.
Until satisfactory evidence of such transfer is presented to the Association, the purchaser will not
be entitled to vote at Association meetings. The Association may levy a reasonable transfer fee
against a new Owner and such Owner's Condominium (which fee shall be paid through escrow
or added to the Annual Assessment chargeable to such new Owner) to reimburse the Association
for the administrative cost of transferring the Membership to the new Owner on the
Association's records. Such fee may not exceed the Association's actual cost involved in
changing its records.
2.4.3 Classes of Membership. The Association classes of voting Membership
are as follows:
Class A. The Class A Members are all Owners other Declarant. Class A
Members are assigned one (1) vote for each Assessment Unit allocated to such Owner's
Condominium(s).
Class B. The Class B member is Declarant. The Class B member is assigned two
(2) votes for each Assessment Unit allocated to the Condominiums, irrespective of the number of
Condominiums owned by Declarant. Class B Membership shall terminate at such time as
Declarant no longer owns a Condominium.
Class C. The Class C Member shall be Declarant irrespective of whether
Declarant is or is not an Owner. The Class C Membership shall not be considered a part of the
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voting power of the Association and Declarant is not entitled to exercise any Class C vote except
for the purpose of electing those members of the Board which the Class C Membership is
entitled to elect hereunder. Notwithstanding anything to the contrary in this Declaration, the
Class C Member is entitled to solely elect a majority of the members of the Board until the Class
C Termination Date. The "Class C Termination Date" shall be the later to occur of (i) the date
no portion of the Properties or the Annexable Territory is owned by Declarant or any person or
entity controlling, controlled by or under common control with Declarant, or (ii) the date which
is seven (7) years after the date this Declaration is recorded in the Official Records of San Diego
County, California. Notwithstanding the foregoing, Declarant shall have the right, in its sole
discretion, to accelerate the Class C Termination Date by delivering written notice specifying the
Class C Termination Date to the Board.
2.5. Voting Rights.
2.5.1 Joint Ownership. When more than one (1) Person holds an interest in
any Condominium ("co-owners"), each co-owner may attend any Association meeting, but only
one (1) such co-owner shall be entitled to exercise the votes to which the Condominium is
entitled. Co-owners owning the majority interests in a Condominium shall designate in writing
one (1) of their number to vote. Fractional votes shall not be allowed, and the votes for each
Condominium shall be exercised, if at all, as a unit. Where no voting co-owner is designated or
if the designation is revoked, the vote for the Condominium shall be exercised as the co-owners
owning the majority interests in the Condominium agree. Unless the Association receives a
written objection in advance from a co-owner, it shall be conclusively presumed that the voting
co-owner is acting with his co-owners' consent. No vote may be cast for any Condominium if
the co-owners present in person or by proxy owning the majority interests in such Condominium
fail to agree to the vote or other action. The nonvoting co-owner or co-owners are jointly and
severally responsible for all obligations imposed on the jointly-owned Condominium and are
entitled to all other benefits of ownership. All agreements and determinations lawfully made by
the Association in accordance with the voting percentages established in the Restrictions are
binding on all Owners and their successors in interest.
2.6. Repair And Maintenance.
2.6.1 By Owners.
(a) The Unit. Each Owner shall maintain, at his sole expense, such
Owner's Unit, including all windows (including glass, frame, weather stripping, panes and
sheathing), doors (including hardware, weather-proofing, sheathing, frame and any glass), light
fixtures actuated from switches controlled from, or separately metered to, such Owner's Unit(s),
and the interior surfaces of the walls, ceilings, floors and fixtures, in a clean, sanitary and
attractive condition, in accordance with the Condominium Plan and the original construction
design of the Improvements in the Properties and Restrictions. Each Owner shall pay when due
all charges for any utility service which is separately metered to such Owner's Unit.
(b) Other Responsibilities. Subject to any required approval of the
Design Review Committee, each Owner shall maintain, repair and replace, as necessary, any
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heating and cooling equipment exclusively serving such Owner's Unit(s) and those portions of
such other utilities which are located in or which exclusively serve such Owner's Unit(s).
(c) Limitations on Owners. Notwithstanding anything to the
contrary in this Section 2.6.1, no Owner shall pierce or otherwise alter, repair or replace any
portion of any bearing walls, demising walls between Units, ceilings, floors, roofs or other
structural or utility bearing portions of the buildings housing the Unit(s) without the prior written
approval of the Design Review Committee.
2.6.2 By Association.
(a) Commencement of Obligations. The Association's obligation to
maintain Common Property in a Phase commences on the date Annual Assessments commence
on Condominiums in that Phase. Until commencement of Annual Assessments on
Condominiums, Declarant shall maintain the Common Property.
(b) Maintenance Items. The Association shall repair and pay for all
centrally metered utilities and mechanical and electrical equipment serving the Common
Property; pay all charges for utilities which serve individual Units but which are subject to a
common meter (subject to inclusion in assessments of each Units share of such utility costs
based on actual usage and if actual usage cannot be measured then on an alternative equitable
basis); maintain all Common Property, including all walks, driveways and parking areas and
other means of ingress and egress in the Properties, and all outdoor employee eating areas within
the Common Property. The Association may, but is not required to, perform all corrective
janitorial and repair work in any Unit if the Owner thereof fails to do so after Notice and
Hearing. The Association is not responsible for performing those items of maintenance, repair or
Improvement of the Condominiums, the maintenance of which is the responsibility of the
Owners pursuant to Section 2.6.1. The Association shall maintain the Common Property and
Improvements thereon or shall contract to assure the Common Property and Improvements
thereon are maintained in a clean, sanitary and attractive condition in accordance with the
requirements of this Declaration. The Board shall determine, in its sole discretion, the level and
frequency of maintenance of the Common Property
(c) Additional Items. The Association shall also be responsible for
maintaining any Improvements a majority of the voting power of the Association designates for
maintenance by the Association. Such property shall be deemed to be Association Property and
subject to the Restrictions applicable to the Association Property.
(d) Charges to Owners. All costs of maintenance, repairs and
replacements for the Properties shall be paid for as Common Expenses out of the Association
Maintenance Funds as provided in this Declaration.
2.6.3 Inspection of the Properties. The Board shall have the authority, among
other things, to (1) enforce strict compliance with the provisions of this Declaration and (2) cause
the Design Review Committee to have the Properties inspected from time to time for violations
of this Declaration.
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4703
2.6.4 Damage by Owners. Each Owner is liable to the Association for any
damage to the Common Property if the damage is sustained due to the act of an Owner, his
guests, tenants or invitees, or any other persons deriving their right to use the Common Property
from the Owner, or such Owner's respective family, tenants and guests. The Association may,
after Notice and Hearing, (a) determine whether any claim shall be made on the Association's
insurance, and (b) levy a Special Assessment equal to the cost of repairing the damage or any
deductible paid and the increase, if any, in insurance premiums directly attributable to the
damage caused by such Owner or the person for whom such Owner may be liable as described in
this Declaration. If a Condominium is jointly owned, the liability of its Owners is joint and
several, except to the extent that the Association has previously contracted in writing with the
joint owners to the contrary. After Notice and Hearing, the cost of correcting the damage shall
be a Special Assessment against such Owner.
2.7. Unsegregated Real Property Taxes. To the extent not assessed to or paid by the
Owners, the Association shall pay all real and personal property taxes and Assessments levied on
the Properties. If any Condominiums are taxed under a tax bill covering more than one
Condominium, then each Owner shall pay his share of any installment due under the tax bill to
the Association at least ten (10) days before the delinquency date. The Association shall transmit
the taxes to the appropriate tax collection agency on or before the delinquency date. The
Association shall allocate taxes among the Owners and their Condominiums, based on the
Assessment Units allocated to each Condominium as compared to the total number of
Assessment Units allocated to all Condominiums subject to the unsegregated tax bill. The
Association shall, at least forty-five (45) days before the delinquency date of any tax installment,
deliver to each Owner a copy of the tax bill, along with a written notice setting forth the Owner's
obligation to pay his share of the tax installment and the potential additional charges to the
Owner for failure to comply. The Association shall pay the taxes on behalf of any Owner who
does not pay his share. The Association shall add to the Annual Assessment of a delinquent
Owner the amount of any sum advanced, plus interest at the rate often percent (10%) per annum
and any amount necessary to reimburse the Association for any penalty or late charge actually
assessed in connection with the tax bill, which late charge results from the failure of the
delinquent Owner to make timely payment of his share of the taxes.
ARTICLE III
DESIGN REVIEW COMMITTEE
3.1. Members of Committee. The Design Review Committee shall be composed of
three (3) members all of whom may be appointed by the Declarant until the Declarant no longer
owns a Condominium in the Properties.
3.2. Powers And Duties.
3.2.1 General Powers and Duties. The Committee shall consider and act upon
all plans and specifications submitted for its approval, including inspection of work in progress
to assure conformance with plans approved by the Committee, and shall perform such other
duties as the Board assigns to it.
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3.2.2 Issuance of Standards. The Committee shall issue and regularly update
its design guidelines. The design guidelines shall include rules or guidelines setting forth
procedures for the submission of plans for approval, may require a fee to accompany each
application for approval, or may identify additional factors which the Committee will consider in
reviewing submissions. The Committee may provide that fees it imposes be uniform, or that fees
be determined in any other reasonable manner. The Committee may require such detail in plans
and specifications submitted for its review as it deems proper, including landscape plans, floor
plans, site plans, drainage plans, elevation drawings and descriptions or samples of exterior
material and colors.
3.2.3 Retaining Consultants. The Committee has the power but not the duty to
retain Persons to advise the Committee in connection with decisions; however, the Committee
does not have the power to delegate its decision-making power.
3.3. Review of Plans And Specifications.
3.3.1 Improvements Requiring Approval. No construction, installation or
alteration of any of the following Improvements may be commenced until the plans and
specifications therefore showing the nature, kind, shape, height, width, color, materials and
location thereof have been submitted to and approved in writing by the Committee: (a) any
Improvements that would be visible from outside a Unit, (b) any Improvements that would affect
the Building Structure and Systems or any demising wall between Units, (c) any Improvements
that would increase the floor area of any Unit (e.g. the installation or extension of any
mezzanine) from the floor area (in square feet) of such Unit ("Original Floor Area") as of the
Close of Escrow for the sale of such Unit from Declarant to the original purchaser, and/or (d) any
Improvements that would increase the total square feet of office area within any Unit to an
amount in excess of sixty-five percent (65%) of the Original Floor Area of such Unit.
3.3.2 Application Procedure. Until changed by the Board, the address for the
submission of such plans and specifications is the Association's principal office. The form of
application used by the Committee may include spaces allowing the Owner of adjacent Units to
sign or initial the application confirming that they have been notified of the application.
Applications will be complete and may be approved or disapproved by the Committee even if all
of the Adjacent Owners do not initial the applications so long as the Applicant certifies that the
Applicant requested that the Adjacent Owners sign the applications. If the Committee receives
plans and specifications it determines are not complete, the Committee may reject the application
for approval. The Committee shall transmit its decision and the reasons therefor to the Owner
submitting the plans and specifications ("Applicant") at the address listed in the application for
approval within forty-five (45) days after the Committee receives all required materials. Any
application submitted pursuant to this Section shall be deemed approved unless the Committee
transmits written disapproval or a request for additional information or materials to the Applicant
within forty-five (45) days after the date the Committee receives all required materials.
3.3.3 Standard for Approval. The Committee shall approve plans and
specifications submitted for its approval only if it determines that (a) installation, construction or
alterations of the Improvements in the locations indicated will not be detrimental to the
appearance of the surrounding area of the Properties as a whole, (b) the appearance of any
SDHY50387.0001 \352523.10 9/22/2006 -1 6-
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structure affected by the proposed Improvements will be in harmony with the surrounding
structures, (c) installation, construction or alteration of the proposed Improvements will not
detract from the attractiveness and function of the Properties or the enjoyment thereof by the
Owners, (d) maintenance of the proposed Improvements will not become a burden on the
Association, and (e) the proposed Improvements are consistent with the Restrictions. The
Committee may consider the impact the proposed Improvements may have on parking
requirements applicable to the Properties. The Committee may condition its approval of
proposals or plans and specifications for any Improvement on any or all of the following: (i) the
Applicant's furnishing the Association with security acceptable to the Association against any
mechanic's lien or other encumbrance which may be Recorded against the Properties as a result
of such work, (ii) such changes therein as it considers appropriate, (iii) the Applicant's
agreement to grant appropriate easements to the Association for the maintenance of the
Improvements, (iv) the Applicant's agreement to install (at its sole cost) water, gas, electrical or
other utility meters to measure any increased consumption and to pay all costs of such
consumption, (v) the Applicant's agreement to reimburse the Association for the cost of such
maintenance, (vi) the Applicant's agreement to complete the proposed work within a stated
period of time, and may require submission of additional plans and specifications or other
information before approving or disapproving material submitted, and/or (vii) such other
conditions as the Committee may reasonably determine to be appropriate under the
circumstances. The Applicant shall meet all review and permit requirements of the City before
making any construction, installation or alterations permitted under this Declaration. The .-!: :•
Committee's approval or disapproval shall be based solely on the considerations listed in this
Article. The Committee is not responsible for reviewing, nor may its approval of any plan or
design be deemed approval of, any plan or design from the standpoint of structural safety or -
conformance with building or other codes.
3.4. Meetings And Actions of The Committee. The Committee shall meet as
necessary to perform its duties. The vote or written consent of a majority of the Committee
constitutes an act of the Committee. If the Committee is acting on an application or matter in
which a Committee member (other than Declarant) is the applicant or subject, then such member
shall not participate in the decision of the Committee. If in such case the remaining two (2)
members of the Committee cannot agree on a decision in such matter the remaining members
shall select a third Member to sit on the Committee only for purposes of making such decision
and such selected Member shall cast a deciding vote in such decision. If the remaining members
cannot agree on such temporary member of the Committee, then either member may on behalf of
the Association make application to the superior court of the County for appointment of such
temporary member. All approvals issued by the Committee must be in writing. Verbal
approvals issued by the Committee or any individual Committee member are not valid, are not
binding on the Association and may not be relied upon by any Person.
3.5. No Waiver of Future Approvals. The Committee's approval of any proposals
or plans and specifications or drawings for any work done or proposed or in connection with any
other matter requiring the Committee's approval does not waive any right to withhold approval
of any similar proposals, plans and specifications, drawings or matters subsequently or
additionally submitted for approval.
SDKU0387.000I\352523.10 9/22/2006 -17-
3.6. Compensation of Members. The Committee's members shall receive no
compensation for services rendered, other than reimbursement for expenses incurred by them in
performing their duties.
3.7. Inspection of Work. The Committee or its duly authorized representative may
inspect any work for which approval of plans is required under this Article ('Work"). The right
to inspect includes the right to require any Owner to take such action as may be necessary to
remedy any noncompliance with the Committee-approved plans for the Work or with the
requirements of this Declaration ("Noncompliance").
3.7.1 Time Limit. The Committee's right to inspect the Work and notify the
responsible Owner of any Noncompliance shall terminate sixty (60) days after the Work is
completed and the Committee receives written notice from the Owner that the Work is
completed. If the Committee fails to send a notice of Noncompliance to an Owner before this
time limit expires, the Work shall be deemed to comply with the approved plans.
3.7.2 Remedy. If an Owner fails to remedy any Noncompliance within sixty
(60) days after the date of notice from the Committee, the Committee shall notify the Board in
writing of such failure. After Notice and Hearing, the Board shall determine whether there is a
Noncompliance and, if so, the nature thereof and the estimated cost of correcting or removing the
same. If a Noncompliance exists, the Owner shall remedy or remove the same within a period of
not more than forty-five (45) days after the date that notice of the Board ruling is given to the
Owner. If the Owner does not comply with the Board ruling within that period, the Association
may Record a Notice of Noncompliance (if allowed by law) and commence an action for
damages or injunctive relief, as appropriate, to remedy the Noncompliance.
3.8. Variances. The Committee may authorize variances from compliance with any
of the architectural provisions of this Declaration including restrictions on height, size, floor area
or placement of structures, or similar restrictions, when circumstances such as topography,
natural obstructions, hardship, aesthetic or environmental consideration require. Such variances
must be evidenced in writing, must be signed by a majority of the Committee, and become
effective on Recordation. After Declarant's right to appoint the Committee members expires, the
Board must approve any variance recommended by the Committee before any such variance
becomes effective. If variances are granted, no violation of the covenants, conditions and
restrictions in this Declaration shall be deemed to have occurred with respect to the matter for
which the variances were granted. The granting of a variance does not waive any of the terms
and provisions of this Declaration for any purpose except as to the particular property and
particular provision of this Declaration covered by the variance, nor does it affect the Owner's
obligation to comply with all laws affecting the use of his Condominium.
3.9. Pre-approvals. The Committee may authorize pre-approval of certain specified
types of construction activities if, in the exercise of the Committee's judgment, preapproval of
such types of Improvements is appropriate in carrying out the purposes of the Restrictions.
3.10. Appeals. For so long as Declarant has the right to appoint and remove the
Committee's members, the Committee's decisions are final, and there is no appeal to the Board.
After Declarant's right to appoint and remove the Committee's members expires, the Board may
Sr>H\30387.000l\352523.10 9/22/2006 -18-
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adopt policies and procedures for the appeal of Committee decisions to the Board. The Board
has no obligation to adopt or implement any appeal procedures, and in the absence of Board
adoption of appeal procedures, all Committee decisions are final.
ARTICLE IV
PROPERTY EASEMENTS AND RIGHTS
4.1. Easements.
4.1.1 Maintenance and Repair. Declarant reserves for the benefit of the
Association and all Association agents, officers and employees, nonexclusive easements over the
Common Property as necessary to fulfill the obligations and perform the duties of the
Association.
4.1.2 Utility Easements. Declarant reserves easements over the Association
Property for installation and maintenance of utilities for the benefit of the Owners. Declarant
reserves the right to grant additional easements and rights-of-way of any kind over the Properties
to utility companies and public agencies, as necessary, for the proper development and disposal
of the Properties. Such right of Declarant shall terminate at such time as Declarant no longer
owns a Condominium. Any Owner requiring access through an other Owner's Unit for utility
maintenance, repair and/or installation purposes shall, except in the case of emergencies, provide.
the Owner of the Unit through which such access is required at least three (3) business days
advance written notice. AH such access and related work shall be scheduled and performed at
times and in a manner so as to not unreasonably interfere with the use and enjoyment of any
Unit.
4.1.3 Encroachments. Declarant reserves for its benefit and the benefit of the
Owners a reciprocal easement appurtenant to each Condominium over the other Condominiums
and the Common Property to accommodate (a) any existing encroachment of any wall or any
other authorized Improvement, (b) any existing encroachment of any wall or any other
authorized Improvement, (c) authorized construction or repair, and (d) shifting, movement or
natural settling of the Condominiums or other Improvements. Use of the foregoing easements
may not unreasonably interfere with each Owner's use and enjoyment of the burdened
Condominiums.
4.1.4 Completion of Improvements. Declarant reserves the right and easement
to enter the Properties to complete any Improvement which Declarant considers desirable to
implement Declarant's development plan.
4.1.5 Owners'Easements in Common Property. Declarant reserves for the
benefit of every Owner, its tenants, employees and invitees, a nonexclusive easement for use of
and vehicular and pedestrian access over and use of the parking, access aisles, driveways,
walkways and eating area and landscaped portions of the Common Property, as applicable, in
connection with use and enjoyment of each Condominium. This easement is appurtenant to and
passes with title to every Condominium. This easement is subject to the restrictions, rights and
other easements in the Restrictions.
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4.1.6 Owners' Easements for HVAC Improvements. Declarant hereby
reserves for the benefit of every Owner, its tenants, employees and invitees, an easement for the
maintenance, repair, replacement and operation over those portions of the Common Property on
which Declarant has installed heating, ventilation and air conditioning systems serving each
Unit. This easement is appurtenant to and passes with title to each Condominium. This
easement is subject to the restrictions, rights and other easements in the Restrictions.
4.2. Right to Grant Easements. Declarant reserves easements over the Common
Property for the exclusive use by an Owner. The purpose of the easement, the portion of the
Common Property affected, the Condominium to which the easement is appurtenant, and any
restrictions on use of the easement area shall be identified in a Recorded grant of easement.
ARTICLE V
ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS
5.1. Personal Obligation to Pay Assessments. By acceptance of a deed to a
Condominium, each Owner is deemed to covenant to pay to the Association Assessments which
are established and collected pursuant to this Declaration. The Association shall not levy or
collect any Assessment that exceeds the amount necessary for the purpose for which it is levied.
Except as provided in this Section, all Assessments, together with interest, costs, and reasonable
attorneys' fees for the collection thereof, are a charge and a continuing lien on the Condominium
against which such Assessment is made; provided, however, that the lien for Special
Assessments cannot be enforced under Section 2924,2924(b) or 2924(c) of the California Civil
Code. Each Assessment, together with interest, costs and reasonable attorneys' fees, is also the
personal obligation of the Person who was the Owner of the Condominium when the Assessment
accrued. The personal obligation for delinquent Assessments will not pass to any new Owner
("Purchaser") unless expressly assumed by the Purchaser.
5.2. Funds of The Association. The Association shall establish no fewer than two (2)
separate Association Maintenance Fund accounts into which shall be deposited all money paid to
the Association and from which disbursements shall be made, as provided in this Declaration.
The Association Maintenance Funds may be established as trust accounts at a banking or savings
institution and shall include: (a) an Operating Fund for current Common Expenses and (b) an
adequate Reserve Fund for the portion of Common Expenses allocated to (i) reserves for
Improvements which the Board does not expected to perform on an annual or more frequent
basis, and (ii) payment of deductible amounts for insurance policies which the Association
obtains.
5.3. Purpose of Assessments. The Assessments shall be used exclusively to (a)
promote the Owners' recreation, health, safety and welfare, (b) operate, improve and maintain
the Common Property, and (c) discharge any other Association obligations under the
Declaration. All amounts deposited into the Maintenance Funds must be used solely for the
common benefit of all Owners for purposes authorized by this Declaration. Disbursements from
the Operating Fund shall be made by the Association for such purposes as are necessary for the
discharge of its responsibilities in this Declaration for the common benefit of all Owners, other
than those purposes for which disbursements from the Reserve Fund are to be used.
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5.4. Waiver of Use. No Owner may exempt himself from personal liability for
Assessments duly levied by the Association, nor release such Owner's Condominium from the
liens and charges thereof, by waiving use and enjoyment of the Common Property or by
abandoning such Owner's Condominium.
5.5. Supplemental Annual Assessments. If the Board determines that the estimate of
total charges for the current year is or will become inadequate to meet all Common Expenses, it
shall immediately determine the approximate amount of the inadequacy,, the Board may levy a
supplemental Annual Assessment reflecting a revision of the total charges to be assessed against
each Condominium.
5.6. Commencement And Collection of Annual Assessments. Annual Assessments
shall commence on all Condominiums in Phase 1 on the date of the first Close of Escrow and
shall be allocated, billed and paid as provided in this Section 5.6. Annual Assessments for future
Phases (if any) shall commence on all Condominiums in such Phase on the date of the first Close
of Escrow for a Condominium in the applicable Phase.
5.6.1 Assessment Units. The Common Expenses shall be allocated among the
Owners and their respective Condominiums in accordance with the allocation of Assessment
Units set forth in Exhibit "C" attached hereto.
5.6.2 Allocation of Common Expenses. Annual Assessments shall be
allocated among all of the Condominiums and the Owners thereof based on the number of
Assessment Units allocable to each Owner. The Annual Assessment chargeable to each
Condominium and the Owner(s) thereof shall be equal to the total Common Expenses multiplied
by a fraction, the numerator of which is the number of Assessment Units allocated to such
Condominium, and the denominator of which is the total number of all Assessment Units
allocated to all Condominiums in the Properties.
5.6.3 Partial Period Prorations; Changes in Assessments; Disposition of
Reserves. Annual Assessments for fractions of a month or quarter shall be prorated. The Board
shall fix the amount of the Annual Assessment against each Condominium at least thirty (30)
days in advance of each Annual Assessment period. However, unless otherwise established by
the Board, the initial Annual Assessments shall be assessed in accordance with the most recent
Budget. Written notice of any change in the amount of any Annual Assessment, Capital
Improvement Assessment or Reconstruction Assessment shall be sent via first-class mail to
every Owner subject thereto not less than thirty (30) nor more than ninety (90) days before the
increased Assessment becomes due. Each Owner shall pay Annual Assessments in quarterly
installments in advance or in such other installments, at such frequency and in such amounts and
by such methods as are established by the Board from time to time. Each installment of Annual
Assessments must be paid to the Association in one check. If any payment of an Annual
Assessment installment is less than the amount assessed, then the amount received shall be
credited in order of priority first to the Operating Fund, until that portion of the Annual
Assessment has been satisfied, and second to the Reserve Fund. The Board may determine that
funds in the Operating Fund at the end of the Fiscal Year be retained and used to reduce the
following Fiscal Year's Annual Assessments. On dissolution of the Association incident to the
abandonment or termination of the Properties as a condominium project, any amounts remaining
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in any of the Maintenance Funds shal^be distributed to or for the benefit of the Owners in the
same proportions as such money was collected from the Owners.
5.7. Capita! Improvement Assessments. The Board may levy, in any Fiscal Year, a
Capital Improvement Assessment or Reconstruction Assessment applicable to that Fiscal Year
only to defray, in whole or in part, the cost of any construction, repair or replacement of a capital
Improvement or other such addition to the Common Property. No Capital Improvement
Assessments in any Fiscal Year which, if added to the Capital Improvement Assessments already
levied during such Fiscal Year, exceed ten percent (10%) of the Association's Budgeted gross
expenses for such Fiscal Year, may be levied without the vote or written consent of Owners
casting a majority of votes at an Increase Election. The Board may levy in any Fiscal Year, a
Capital Improvement Assessment applicable to that Fiscal Year which exceeds ten percent (10%)
of the Association's Budgeted gross expenses for such Fiscal Year if such increase is necessary
for addressing an emergency situation (e.g., an expense ordered by a court, a threat to personal
safety on the Properties, or an extraordinary circumstance that was not foreseen by the Board
when it adopted the applicable Budget).
5.8. Prepayment of Assessment Upon Transfer. Upon the transfer of any
Condominium, the Association will have the right to collect, in advance, up to one (1) year's
Annual Assessment allocable to the Condominium being transferred. Such amounts shall be due
and payable at the time of transfer and shall be applied to the Annual Assessment installments
payable with respect to the applicable Condominium for the period after the date of the transfer.
Each Owner will provide the Association with not less than thirty (30) days' prior written notice
of any contemplated transfer of a Condominium.
ARTICLE VI
INSURANCE
6.1. Duty to Obtain Insurance; Types. The Association shall obtain and maintain in
effect at all times the following insurance coverages:
6.1.1 Public Liability. Adequate public liability insurance (including coverage
for medical payments), insuring against liability for bodily injury, death and property damage
arising from the activities of the Association and the Owners, with respect to the Common
Property.
6.1.2 Fire and Casualty Insurance. Fire and casualty insurance with extended
coverage, without deduction for depreciation, in an amount as near as possible to the full
replacement value of the Common Property.
6.1.3 Fidelity Insurance. Fidelity insurance coverage for any Person handling
funds of the Association, whether or not such persons are compensated for their services, in an
amount not less than the estimated maximum of funds, including reserve funds, in the custody of
the Person during the term of the insurance. The aggregate amount of the fidelity insurance
coverage may not be less than the sum equal to one fourth (%) of the Annual Assessments on all
Condominiums in the Properties, plus reserve funds.
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6.1.4 Other Insurance. Such other insurance insuring other risks customarily
insured by associations managing condominium projects similar in construction, location and
use. Such additional insurance shall include general liability insurance and director's and
officer's errors and omissions insurance in the minimum amounts established in Section 1365.9
of the California Civil Code.
6.1.5 Beneficiaries. The Association's insurance shall be kept for the benefit of
the Association, the Owners, and the Mortgagees, as their interests may appear as named insured,
subject, however, to loss payment requirements established in this Declaration.
6.2. Waiver of Claim Against Association. As to all policies of insurance kept by or
for the benefit of the Association and the Owners, the Association and the Owners waive and
release all claims against one another, the Board, the Manager and Declarant, to the extent of the
insurance proceeds available, whether or not the insurable damage or injury is caused by the
negligence of or breach of any agreement by any of the Persons.
6.3. Right And Doty of Owners to Insure. Each Owner is responsible for insuring
his personal property and all other property and Improvements in his Condominium for which
the Association has not purchased insurance in accordance with Section 6.1. Duplicate copies of
Owners' insurance policies shall be deposited with the Association on request. If any loss
intended to be covered by the Association's insurance occurs and the proceeds payable are
reduced due to insurance carried by any Owner, such Owner shall assign the proceeds of the
Owner's insurance to the Association, to the extent of such reduction, for application to the same
purposes as the reduced proceeds are to be applied. Each Owner shall maintain insurance with
limits of insurance at least as outlined by the following schedule or greater amount required by
the Board from time to time:
General Liability $2,000,000 Each Occurrence
Medical Expense $1,000 Any one person
Personal & Advertising Injury $ 1,000,000
General Aggregate $3,000,000
Products-Completed Ops $ 1,000,000
Umbrella Liability $2,000,000 Each Occurrence
All liability policies must be occurrence form (not modified occurrence) and name the
Association and the Manager as additional insured via separate endorsement to the policies
6.4. Notice of Expiration Requirements. If available, each of the Association's
insurance policies must contain a provision that the policy may not be canceled, terminated,
materially modified or allowed to expire by its terms, without ten (10) days' prior written notice
to the Board and Declarant, and to each Owner and Mortgagee, insurer and guarantor of a first
Mortgage who has filed a written request with the carrier for such notice and every other Person
in interest who requests such notice of the insurer. In addition, fidelity insurance shall provide
that it may not be canceled or substantially modified without ten (10) days' prior written notice
to any insurance trustee named pursuant to Section 6.6.
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6.5. Insurance Premiums. Premiums for insurance policies obtained by the
Association are Common Expenses.
6.6. Trustee For Policies. The Association is trustee of the interests of all named
insureds under the Association's insurance policies. Unless an insurance policy provides for a
different procedure for the filing of claims, all claims made under such policy must be sent to the
insurance carrier or agent by certified mail and be clearly identified as a claim. The Association
shall keep a record of all claims made. All insurance proceeds under any such policies provided
for in Section 6.1 must be paid to the Board as trustees. The Board has the authority to negotiate
loss settlements with insurance carriers, with participation, to the extent they desire, of first
Mortgagees who have filed written requests within ten (10) days of receipt of notice of any
damage or destruction as provided in Section 7.4. Any two (2) officers of the Association may
sign a loss claim form and release form in connection with the settlement of a loss claim, and
such signatures are binding on all the named insureds. A representative chosen by the Board
may be named as an insured, including a trustee with whom the Association may enter into an
insurance trust agreement and any successor to such trustee, who shall have exclusive authority
to negotiate losses under any insurance policy arid to perform such other functions necessary to
accomplish this purpose.
6.7. Actions as Trustee. Except as otherwise specifically provided in this
Declaration, the Board has the exclusive right to bind the Association and the Owners in respect
to all matters affecting insurance carried by the Association, the settlement of a loss claim, and
the surrender, cancellation, and modification of all such insurance, in a manner satisfactory to
Beneficiaries of seventy-five percent (75%) of the first Mortgages held by first Mortgagees who
have filed requests under Section 6.4. Duplicate originals or certificates of all policies of fire and
casualty insurance kept by the Association and of all renewals thereof, together with proof of
payment of premiums, shall be delivered by the Association to all Owners and Mortgagees who
requested them in writing.
6.8. Annual Insurance Review. The Board shall review the Association's insurance
policies at least annually to determine the amount of the casualty and fire insurance referred to in
Section 6.1. If economically feasible, the Board shall obtain a current appraisal of the full
replacement value of the Improvements on the Properties except for foundations and footings,
without deduction for depreciation, from a qualified independent insurance appraiser, before
each such annual review.
6.9. Required Waiver. All of the Association's insurance policies insuring against
physical damage must provide, if reasonably possible, for waiver of:
6.9.1 Subrogation of claims against the Owners and tenants of the Owners;
6.9.2 Any defense based on coinsurance;
6.9.3 Any right of setoff, counterclaim, apportionment, proration or contribution
due to other insurance not carried by the Association;
6.9.4 Any invalidity, other adverse effect or defense due to any breach of
warranty or condition caused by the Association, any Owner or any tenant of any Owner, or
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arising from any act or omission of any named insured or the respective agents, contractors and
employees of any insured;
6.9.5 Any right of the insurer to repair, rebuild or replace, and, if the
Improvement 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;
6.9.6 Notice of the assignment of any Owner of his interest in the insurance by
virtue of a conveyance of any Condominium;
6.9.7 Any right to require any assignment of any Mortgage to the insurer;
6.9.8 Any denial of an Owner's claim because of negligent acts by the
Association or other Owners; and
6.9.9 Prejudice of the insurance by any acts or omissions of Owners that are not
under the Association's control.
ARTICLE VII
DESTRUCTION OF IMPROVEMENTS
7.1. Restoration of The Properties. Except as otherwise authorized by the Owners,
if any portion of the Properties which the Association is responsible for maintaining is destroyed,
the Association shall restore the same to its former condition as promptly as practical. The
Association shall use the proceeds of its insurance for reconstruction or repair of the Properties
unless otherwise authorized in this Declaration. The Board shall prepare or obtain the
documents necessary for commencing such reconstruction as promptly as practical. The
Properties shall be reconstructed or rebuilt substantially in accordance with the Condominium
Plan and the original construction plans if they are available, unless changes recommended by
the Design Review Committee have been approved by at least sixty-seven percent (67%) of the
Owners and by the Beneficiaries of at least fifty-one percent (51%) of first Mortgages on the
Condominiums. If the insurance proceeds amount to at least eighty-five percent (85%) of the
estimated cost of restoration and repair, the Board shall levy a Reconstruction Assessment to
provide the additional funds necessary for such reconstruction. If the insurance proceeds amount
to less than eighty-five percent (85%) of the estimated cost of restoration and repair, the Board
may levy a Reconstruction Assessment and proceed with the restoration and repair only if both
of the following conditions ("Conditions to Reconstruction") have been satisfied: (a) the levy
of a Reconstruction Assessment to pay the costs of restoration and repair of the Properties is
approved by at least sixty-seven percent (67%) of the Owners and the Beneficiaries of at least
fifty-one percent (51%) of the first Mortgages on the Condominiums in the Properties; and (b)
within six (6) months after the date on which the destruction occurred, the Board Records a
certificate of the resolution authorizing the restoration and repair ("Reconstruction Certificate").
If either of the Conditions to Reconstruction does not occur following a destruction for which
insurance proceeds available for restoration and repair are less than eighty-five percent (85%) of
the estimated cost of restoration and repair, then the Board shall proceed as provided in Section
7.2.
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7.2. Sale of Properties And Right to Partition. No Owner shall have the right to
partition of his interest in the Condominium and there shall be no judicial partition of the
Properties, or any part thereof, except as provided in Section 1359(b) of the California Civil
Code. For purposes of Subsection 4 of Section 1359(b), partition may occur only if all of the
following conditions are satisfied: (a) either or both of the Conditions to Reconstruction
described in Section 7.1 have failed to occur, (b) within six (6) months after the date on which
destruction occurred, restoration or repair has not actually commenced; and (c) the Owners of at
least sixty-seven percent (67%) of the Condominiums in the Properties approve the partition. In
such event, the Association shall prepare, execute and Record, as promptly as practical, the
certificate stating that a majority of the Board may properly exercise an irrevocable power of
attorney to sell the Properties for the benefit of the Owners and execute such other documents
and instruments as may be necessary for the Association to consummate the sale of the
Properties at the highest and best price obtainable, either in its damaged condition, or after
damaged structures have been razed. Such certificate shall be conclusive evidence of such
authority for any Person relying thereon in good faith. The net proceeds of such sale and the
proceeds of any insurance carried by the Association shall be divided proportionately among the
Owners, such proportions to be determined in accordance with the relative appraised fair market
valuation of the Condominiums as of a date immediately before such destruction (or
condemnation), expressed as percentages, and computed by dividing such appraised valuation of
each Condominium by the total of such appraised valuations of all Condominiums in the
Properties. The Board is authorized to hire one (1) or more appraisers for such purpose and the
cost of such appraisals shall be a Common Expense of the Association. However, the balance
then due on any valid Mortgage of Record shall be first paid in order of priority before the
distribution of any proceeds to an Owner whose Condominium is so encumbered. Nothing in
this Declaration prevents partition of a co-tenancy in any Condominium. Except as provided
above, each Owner and the successors of each Owner, whether by deed, gift, devise, or by
operation of law, for their own benefit and for the Condominiums and for the benefit of all other
Owners, specifically waive and abandon all rights, interests and causes of action for a judicial
partition of the tenancy in common ownership of the Properties and do further covenant that no
action for such judicial partition shall be instituted, prosecuted or reduced to judgment.
7.3. Interior Damage. With the exception of any casualty or damage covered by
insurance maintained by the Association, restoration and repair of any damage to the interior of
any individual Condominium, including all fixtures, equipment and improvements therein,
together with restoration and repair of all interior paint, wall coverings and floor coverings, must
be made by and at the individual expense of the Owner of the Condominium so damaged. If a
determination to rebuild the Properties after partial or total destruction is made, as provided in
this Article, such interior repair and restoration shall be completed as promptly as practical and
in a lawful and workmanlike manner, in accordance with plans approved by the Design Review
Committee as provided in this Declaration.
7.4. Notice to Owners And Listed Mortgagees. The Board, immediately on having
knowledge of any damage or destruction affecting a Condominium or a material portion of the
Common Property, shall promptly notify all Owners and Beneficiaries, insurers and guarantors
of first Mortgages on Condominiums in the Properties who have filed a written request for such
notice with the Board.
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ARTICLE VIII
USE RESTRICTIONS
Subject to the exemptions of Declarant, the Properties shall be held, used and enjoyed
subject to the following restrictions.
8.1. Prohibited Uses. Units shall not be used for any permanent or temporary
residential purposes. Further, no part of the Properties shall be used or caused to be allowed or
authorized in any way directly or indirectly for any purpose not authorized for the Properties by
the zoning ordinances, special use permit(s), planned industrial permit(s) and other governmental
regulations applicable to the Properties. No portion of the Properties shall be used for the
production, manufacture, duplication, display, sale or distribution of what is commonly referred
to as "pornographic," "obscene," or "adult" material.
8.2. Authorized Uses. Subject to Section 8.1 above, the Properties shall be used only
for those purposes which are authorized under the zoning ordinances, special use permit(s),
planned industrial permit(s) and other governmental regulations applicable to the Properties.
8.3. Parking and Vehicle Restrictions. No inoperable vehicles shall be parked or
stored anywhere within the Properties. No vehicle shall be parked or kept on the Property which
is found by the Board to be a nuisance. The Board may establish additional regulations
regarding any parking areas which are part of the Association Property, including without
limitation designating "parking," "visitor parking," "no parking" areas, designating up to two (2)
exclusive use parking spaces per Condominium for the exclusive use by an Owner and its
invitees, setting time limits for parking vehicles in the Association Property parking areas, and
requiring registration of vehicles or use of parking permits; and may enforce all parking and
vehicle use regulations applicable to the Properties, including removing violating vehicles from
the Properties pursuant to California Vehicle Code Section 22658.2 or other applicable
ordinances or statutes. Once assigned by the Association, the exclusive use right over any
parking spaces cannot be revoked without the consent of the Owner of the Condominium to
which such parking spaces are assigned. The City shall be entitled, but shall not be obligated, to
enforce all provisions of this Declaration and any laws, ordinances or statutes of the City and/or
State of California respecting use, parking, improvement and maintenance of driveways, streets,
alleys and parking areas in the Properties. If the City fails to enforce any of its parking
ordinances on public streets within or abutting the Properties, the Association has the power but
not the duty to enforce such ordinances against Owner Representatives.
8.4. Insurance Rates. Nothing shall be done or kept in the Properties which will
increase the rate of insurance on any Unit or other portion of the Properties without the approval
of the Board, nor shall anything be done or kept in the Properties which would result in the
cancellation of insurance on any Unit or other portion of the Properties or which would be in
violation of any law. An Owner whose particular use of its Unit causes any increase in the rate
of insurance paid by the Association shall be solely responsible for the increase in the insurance
premium payable by the Association as a result of such Owner's use and shall pay such amount
to the Association as a Special Assessment.
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8.5. Nuisances. No rubbish or debris of any kind may be placed or permitted to
accumulate anywhere within the Properties, and no odor may be permitted to arise therefrom so
as to render the Properties or any portion thereof unsanitary, unsightly, or offensive from any
public or private street or from any Unit in the vicinity thereof or to its occupants. No noise,
odor, vibration or other nuisance shall be permitted to exist upon or emanate from any portion of
the Association Property or any Unit within the Properties so as to be offensive or detrimental to
any other Unit in the Properties or to its Owner or Owner Representative. No signs, banners,
placards, billboards or posters shall be placed on the Properties in violation of applicable law or
reasonable and equitable signage requirements adopted by the Board. No Owner shall
unreasonably burden or unreasonably use the parking areas within the Association Property. The
Board is entitled to determine if any noise, odor, or activity producing such noise or odor
constitutes a nuisance. Each Owner shall comply with all requirements of the local or state
health authorities and with all other applicable governmental ordinances regarding occupancy
and use of a Unit. Each Owner is accountable to the Association and other Owners for the
conduct and behavior of Owner Representatives. Any damage to the Association Property,
personal property of the Association, or property of another Owner caused by such Persons, shall
be repaired at the sole expense of the Owner of the Unit where such Persons are working or
visiting.
8.6. Maintenance and Repair. No Improvement (including without limitation
landscape Improvements) shall be permitted to fall into disrepair and each such Improvement
must at all times be kept in good condition and repair. If any Owner permits any Improvement
which is the maintenance responsibility of such Owner to fall into disrepair so as to create a
dangerous, unsafe, unsightly or unattractive condition, the Board, after consulting with the
Design Review Committee, and after affording the responsible Owner Notice and Hearing, may,
but need not, enter upon the affected Unit for the purpose of correcting such condition, and the
responsible Owner shall promptly reimburse the Association for the cost thereof. Such cost shall
be a Special Assessment enforceable in the manner set forth in this Declaration, and the Owner
of the offending Unit shall be personally liable for all costs and expenses incurred by the
Association in taking such corrective acts, plus all costs incurred in collecting the amounts due.
Each Owner shall pay all amounts due for such work within ten (10) days after receipt of written
demand therefore.
8.7. Drainage. No one may alter or interfere with the established drainage pattern
over any portion of the Properties, unless an adequate alternative provision is made for proper
drainage. For the purpose hereof, "established" drainage means the drainage pattern and
drainage Improvements which exist at the time the first Unit is conveyed to the Owner by
Declarant. There shall be no violation of the drainage requirements of any applicable local
governmental agency, notwithstanding any approval by the Design Committee.
8.8. Unsightly Articles. No unsightly articles, including trash dumpsters, are
permitted to remain on any portion of the Properties so as to be visible from any public or private
street or from any other Unit or the Association Property. Without limiting the generality of the
foregoing, garbage and trash must be disposed of in locations and containers designated for such
purpose by the Board.
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8.9. Temporary Prefabricated Structures/Dumpsters. Unless approved in writing
by the Board, and then Only in connection with Construction Activities approved by the Design
Committee, no tent, shack, trailer or any temporary building, Improvement or structure, or
prefabricated building or structure may be placed upon any portion of the Properties.
8.10. No Mining or Drilling. No oil drilling, oil, gas or mineral development
operations, oil refining, geothermal exploration or development, quarrying or mining operations
of any kind may be conducted upon the Properties, nor are oil, water or other wells, tanks,
tunnels, mineral or geothermal excavations or shafts permitted upon or within five hundred feet
(5001) of the surface of any portion of the Properties.
8.11. Hazardous Materials. No Owner or any Owner Representative shall cause or
prevent any substance or material that is defined in any local, state or federal law as a "toxic or
hazardous" substance or material to be released or discharged on or in the Association Property
or any Unit in the Properties in amounts which violate any applicable local, state or federal law.
Each Owner and such Owner Representative shall indemnify, defend and hold the Association,
the Manager and all other Owners and their employees, patrons and invitees harmless form any
and all loss, damage, liability, judgments, penalties, fines, costs or losses (including, without
limitation, diminution in value of the Properties, any portion thereof, or any other real property
("Other Property") damages for loss or restriction on use of space or of any amenities of the
Properties, damages arising from any adverse impact on marketing of space in the Properties or
Other Property, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert
fees) which arise as a result of any such contamination. The foregoing indemnification shall also
include, without limitation, costs incurred in connection with any investigation of site conditions
or any clean up, remedial, removal or restoration work required by any local, state or federal
governmental agency. Should any Owner or such Owner Representatives release on the
Properties any toxic or hazardous material in violation of the foregoing, such Owner shall
promptly take all actions at its sole cost and expense as necessary to return the Properties to the
condition existing prior to the introduction of any such toxic or hazardous material, provided that
such Owner has obtained the written approval of all affected Owners and the Board with respect
to the Association Property; provided that such approval shall not constitute a representation,
warranty or assurance regarding the safety, impact or effect of such work.
8.12. Obligations of Tenants. All tenants and/or lessees of all or any portion of the
Units shall be subject to the Restrictions and all leases and/or rental agreements shall provide
that a violation of the Restrictions by such tenant or lessee shall be a breach of the lease or rental
agreement. Owners shall be responsible for insuring that tenants, lessees, employees, patrons
and invitees comply with the Restrictions and any non compliance shall be the responsibility of
the applicable Owner.
8.13. Signage and Advertising. Except for "Approved Signage" (defined below), no
flags, banners, balloons or advertising, address and/or identification materials or items shall be
maintained on any portion of the Properties that can be seen from any portion of the Association
Property or any area outside of the Properties. All signage in the Properties when can be seen
from any portion of the Association Property or any area outside of the Properties shall comply
with the signage requirements and restrictions of the City and shall be approved in advance of
construction by the Design Review Committee as to design, size, content, mechanism for
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installation and location. Design Review Committee standards for signage approval may be
more restrictive than City requirements and in such case Design Review Committee
requirements shall control. The term "Approved Signage" means signage, identification
materials and other displays approved by the City and by the Design Review Committee in
writing in advance.
8.14. Antennae. As used in this Declaration, an "Authorized Antenna" means a mast
supporting an antenna that is owned by or under the exclusive control of an Owner and designed
to receive in such Owners Unit (i) an antenna/dish one (1) meter or less in diameter that receives
direct broadcast satellite service, (ii) an antenna/dish one (1) meter or less in diameter that
receives video programming service, including multi-channel multipoint distribution service,
instructional television fixed service, and local multipoint distribution service and/or (iii) an
antenna/dish one (1) meter or less in diameter that receives television broadcast signals. Owners
are prohibited from installing, attaching or affixing any antennae on or to the exterior of any Unit
or building for any purpose. Authorized Antenna may be installed entirely within an Owner's
Unit; provided, however, the Association and/or Design Review Committee may adopt
restrictions on the location, installation and/or use of an Authorized Antenna on an Owner's Unit
or Exclusive Use Area, however such restrictions and the restrictions contained in this Section
shall be enforceable to the extent they do not (1) unreasonably delay or prevent installation,
maintenance or use of an Authorized Antenna, (2) unreasonably increase the cost of installation
maintenance or use of an Authorized Antenna, or (3) preclude acceptable quality reception. In
addition, the Association may prohibit the installation of an Authorized Antenna if the
installation, location or maintenance of such Authorized Antenna unreasonably affects the safety
of managers, agents or employees of the Association and other Owners or for any other safety
related reason established by the Association. This Section is intended to be a restatement of the
authority granted to the Association under the local, state and federal law. All amendments,
modifications, restatements and interpretations of the law applicable to the installation, use or
maintenance of an antenna shall be interpreted to amend, modify, restate or interpret this Section.
ARTICLE IX
EMINENT DOMAIN
The term "taking" as used in this Article means condemnation by exercise of the power
of eminent domain or by sale under threat of the exercise of the power of eminent domain. The
Board shall represent the Owners in any proceedings, negotiations, settlements, or agreements
regarding takings. All takings proceeds shall be payable to the Association for the benefit of the
Owners and their Mortgagees, and shall be distributed to such Owners and Mortgagees as
provided in this Article.
9.1. Property Condemnation. If (a) there is a taking of an interest in all or part of the
Properties such that the ownership, operation and use of the Properties in accordance with this
Declaration is substantially and adversely affected, and (b) within one hundred twenty (120) days
after the effective date of the taking the Owners of Condominiums (i) not taken, or (ii) only
partially taken but capable of being restored to at least ninety-five percent (95%) of their floor
area and to substantially their condition before the taking (collectively, the "Remaining
Condominiums") do not by affirmative vote of at least one-third (1/3) of their voting power
approve the continuation of the Properties and the repair, restoration and replacement to the
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extent feasible of the Association Property and the Remaining Condominiums, then the Board
shall proceed with the sale of that portion of the Properties which was not taken and distribute
the net proceeds of such sale after deducting any incidental fees and expenses, in the same
proportion and manner as provided in Section 9.2.
9.2. Condemnation of Common Property. If there is a taking of (a) the Common
Area or any interest therein (other than the taking of an undivided interest therein taken as a
result of the taking of a Condominium), or (b) the Association Property or any interest therein,
then the award in condemnation shall be paid to the Association and shall be deposited in the
Operating Fund.
9.3. Condemnation of Condominiums. If there is a taking of a Condominium, the
award in condemnation shall be paid to the Owner of the Condominium; however, such award
shall first be applied to the balance then due on any Mortgages encumbering such Owner's
Condominium, in order of priority.
9.4. Condemnation of Portions of Condominiums.
9.4.1 Minor Takings Within Limits. If (a) there is a taking of a portion of one
or more Condominiums such that the intended use of the Condominiums is not substantially and:
adversely affected, and (b) restoration of such Condominiums can be accomplished at a cost less y.
than or equal to the sum of (i) the amount of the condemnation awards for such takings plus (ii)
any amounts the Owners of the taken Condominiums wish to contribute to restoration plus (iii)
an amount less than or equal to five percent (5%) of the Budgeted gross expenses of the <.;
Association for that Fiscal Year (collectively, the "Allowable Cost"), then the Board shall
contract for such restoration and levy a Reconstruction Assessment in an amount equal to the
Allowable Cost minus the amount of the condemnation awards and Owners' contributions, and
the condemnation awards, Owners' contributions and Reconstruction Assessment shall be
applied to such restoration. If the restoration is accomplished at a cost less than the amount of
the condemnation awards, then that portion of the condemnation awards which exceeds the
restoration costs shall be paid to the Owners of the partially taken Condominiums in proportion
to the decreases in the fair market values of their Condominiums; however, such awards shall
first be applied to the balance then due on any Mortgages encumbering such Owners'
Condominiums, in order of priority.
9.4.2 Minor Takings Exceeding Limits. If (a) there is a taking of a portion of
one or more Condominiums such that the intended use of the Condominiums is not substantially
and adversely affected, and (b) restoration cannot be accomplished at a cost less than or equal to
the Allowable Cost, then the Board shall call a Special Meeting of the Owners. If more than fifty
percent (50%) of the voting power of the Association is represented at such Special Meeting,
either in person or by proxy, and a majority of the votes cast at such Special Meeting are in favor
of levying a Reconstruction Assessment in an amount equal to the restoration costs minus the
sum of the amount of the condemnation awards and the amounts the Owners of the taken
Condominiums wish to contribute to such restoration, then the Board shall contract for such
restoration and levy a Reconstruction Assessment, and the condemnation awards, Owners'
contributions and Reconstruction Assessment shall be applied to such restoration.
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9.4.3 Major Takings. If the requisite approval is not obtained at the Special
Meeting referred to below, or if there is a taking of a portion of one or more Condominiums such
that the Condominiums are not capable of being restored such that the intended use of the
Condominiums is not substantially and adversely affected, then the award in condemnation shall
be paid to the Owners of the taken Condominiums; however, such award shall first be applied to
the balance then due on any Mortgages encumbering such Owner's Condominium, in order of
priority. The Board shall have the remaining portions of the taken Condominiums razed. The
remaining portions of the taken Condominiums shall become part of the Association Property,
and the Owners of such taken Condominiums, by acceptance of the award allotted to them in
taking proceedings, relinquish (a) to the other Owners, on the basis of their relative ownership of
the Common Area therein, such Owners' undivided interest in the Common Area, and (b) to the
Association, the remaining portions of the Condominiums. Each Owner relinquishing his
interest in the Common Area pursuant to this Section shall, at the Board's request and at the
Association's expense, execute and acknowledge such deeds and other instruments which the
Board considers necessary or convenient to evidence such relinquishment. Each Owner of a
taken Condominium or Condominium is not liable for Assessments under this Declaration which
accrue on or after the date such Owner accepts his condemnation award.
9.5. Portions of Awards in Condemnation Not Compensatory For Value of Real
Property. Those portions of awards in condemnation which do not directly compensate Owners
for takings of real property (e.g., awards for takings of personal property, relocation expenses,
moving expenses, or other allowances of a similar nature intended to facilitate relocation) shall
be paid to the Owners whose personal property is taken, or whose relocation is intended to be
facilitated.
9.6. Notice to Owners And Mortgagees. The Board, on learning of any taking
affecting a Condominium or a material portion of the Properties, or any threat thereof, shall
promptly notify all Owners and those Beneficiaries, insurers and guarantors of Mortgages on
Condominiums in the Properties who have filed a written request for such notice with the
Association.
ARTICLE X
RIGHTS OF MORTGAGEES
10.1. General Protections. No amendment or violation of this Declaration defeats or
renders invalid the rights of the Mortgagee under any Mortgage encumbering one (1) or more
Condominiums made in good faith and for value, provided that after the foreclosure of any such
Mortgage such Condominium(s) will remain subject to this Declaration. For purposes of this
Declaration, "first Mortgage" means a Mortgage with first priority over other Mortgages or
Deeds of Trust on a Condominium, and "first Mortgagee" means the Mortgagee of a first
Mortgage. For purposes of any provisions of the Restrictions which require the vote or approval
of a specified percentage of first Mortgagees, such vote or approval is determined based the
number of votes allocated to each Condominium encumbered by each such first Mortgage.
10.2. Additional Rights. To induce lenders to participate in the financing of the
acquisition of Condominiums, the following provisions are added hereto (and to the extent these
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added provisions conflict with any other provisions of this Declaration or any other of the
Restrictions, these added provisions control):
10.2.1 Notices. Each Mortgagee, insurer and guarantor of a Mortgage
encumbering one (1) or more Condominiums, on filing a written request for notification with the
Board, is entitled to written notice from the Association of: (a) any condemnation or casualty
loss which affects either a material portion of the Properties or the Condominium(s) securing the
Mortgage; (b) any delinquency of sixty (60) days or more in the performance of any obligation
under the Restrictions, including the payment of Assessments or charges owed by the Owner(s)
of the Condominium(s) securing the Mortgage, which notice each Owner consents to and
authorizes; (c) a lapse, cancellation, or material modification of any insurance policy kept by the
Association; and (d) any proposed action of the Association which requires consent by a
specified percentage of first Mortgagees who have submitted a written request to the Association
for notice of such proposed action.
10.2.2 Right of First Refusal. Each Owner, including each first Mortgagee of a
Mortgage encumbering any Condominium who obtains title to such Condominium pursuant to
(a) the remedies provided in such Mortgage, (b) foreclosure of the Mortgage, or (c) deed or
assignment in lieu of foreclosure, is exempt from any "right of first refusal" created or purported
to be created by the Restrictions.
10.2.3 Unpaid Assessments. Each first Mortgagee of a Mortgage encumbering
any Condominium who obtains title to such Condominium pursuant to the remedies provided in
such Mortgage or by foreclosure of such Mortgage shall take title to such Condominium free of
any claims for unpaid Assessments or charges against such Condominium which accrued before
the time such Mortgagee acquires title to such Condominium.
10.2.4 Approvals. Unless at least sixty-seven percent (67%) of the first
Mortgagees or sixty-seven percent (67%) of the Owners (other than Declarant) have given their
prior written approval, the Association may not:
(a) by act or omission seek to abandon or terminate the Properties; or
(b) change the method of determining the obligations, Assessments,
dues or other charges which may be levied against any Owner; or
(c) partition or subdivide any Condominium; or
(d) by act or omission, seek to abandon, partition, subdivide,
encumber, sell or transfer the Common Property. (The granting of easements for public utilities
or for other purposes consistent with the intended use of the Common Property under this
Declaration, and the granting of exclusive easements to Owners over the Common Property to
conform the boundaries of the Common Property to the as-built location of authorized
Improvements is not a transfer within the meaning of this clause); or
(e) by act or omission change, waive or abandon any scheme of
regulations, or enforcement thereof, pertaining to the architectural design, the exterior
appearance or the maintenance of the Condominiums or the Common Property; or
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(f) fail to keep Fire and Extended Coverage insurance on insurable
Common Property as provided in Article VI; or
(g) use hazard insurance proceeds for losses to any Condominium
property (i.e., Improvements to the Condominiums or Common Property) for other than the
repair, replacement or reconstruction of such Condominium property, subject to the provisions of
Article VII; or
(h) change the pro rata interest or obligations of any Condominium to
levy Assessments or charges, allocate distributions of hazard insurance proceeds or
condemnation awards or determine the pro rata share of ownership of each Condominium in the
Common Area.
10.2.5 Association Records. All Beneficiaries, insurers and guarantors of first
Mortgages, on written request to the Association may:
(a) examine current copies of the Association's books, records and
financial statements and the Restrictions during normal business hours;
(b) require the Association to submit an annual financial statement for
the preceding Fiscal Year if one is available, or have one prepared at the expense of the
requesting entity if such statement is not otherwise prepared by the Association;
meetings of Owners.
(c) receive written notice of all meetings of Owners; and
(d) designate in writing a representative authorized to attend all
10.2.6 Material Changes. All Beneficiaries, insurers and guarantors of first
Mortgages, on written request, shall be given thirty (30) days' written notice before the effective
date of (a) any proposed material amendment to the Restrictions or Condominium Plans; (b) any
termination of an agreement for professional management of the Properties following any
decision of the Owners to assume self-management of the Properties; and (c) any proposed
termination of the Properties as a condominium project.
10.2.7 Reserves. The Reserve Fund described in Article V must be funded by
regular scheduled monthly, quarterly, semiannual or annual payments rather than by large special
Assessments.
10.2.8 Fidelity Insurance. The Board shall secure fidelity insurance for any
person handling Association funds, including, but not limited to, employees of the professional
Manager.
10.2.9 Professional Management. When professional management has been
required by a Mortgagee, any decision to establish self-management by the Association shall
require the approval of at least sixty-seven percent (67%) of the voting power of the Association
and the Beneficiaries of at least fifty-one percent (51%) of the first Mortgages of Condominiums
in the Properties.
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10.2.10 Payment of Taxes. First Mortgagees may, jointly or singly, pay taxes or
other charges which are in default and which may or have become a charge against any Common
Property and may pay any overdue premiums on hazard insurance policies, or secure new hazard
insurance coverage on the lapse of a policy, for Common Property, and the Association shall
immediately reimburse first Mortgagees making such payments.
ARTICLE XI
ENFORCEMENT
11.1. Enforcement of Restrictions. All disputes arising under the Restrictions, other
than those regulated by Civil Code Section 1375 and/or Section 14.13, shall be resolved as
follows.
11.2. Violations Identified by the Association. If the Board determines that there is a
violation of the Restrictions, or the Design Review Committee determines that an Improvement
which is the maintenance responsibility of an Owner needs installation, maintenance, repair,
restoration or painting, then the Board shall give-written notice to the responsible Owner
identifying (a) the condition or violation complained of, and (b) the length of time the Owner has
to remedy the violation including, if appropriate, the length of time the Owner has to submit
plans to the Design Review Committee and the length of time the Owner has to complete the
work proposed in the plans submitted to the Design Review Committee. If an Owner does not
perform such corrective action as is required by the Board and the Design Review Committee
within the allotted time, the Board, after Notice and Hearing, may remedy such condition or
violation complained of, and the cost thereof shall be charged to the Owner as a Special
Assessment. If the violation involves nonpayment of any Assessment, then the Board may
collect such delinquent Assessment pursuant to the procedures established in this Declaration.
11.2.1 Violations Identified by an Owner. If an Owner alleges that another
Person is violating the Restrictions (other than nonpayment of any Assessment), the complaining
Owner must first submit the matter to the Manager and then to the Board for Notice and Hearing
if the matter is not resolved by the Manager before the complaining Owner may resort to
alternative dispute resolution, as required by Sections 1363.810 et seq., and 1369.510 et seq. of
the California Civil Code, or litigation for relief.
11.2.2 Legal Proceedings. Failure to comply with any of the terms of the
Restrictions by any Person is grounds for relief which may include an action to recover damages,
injunctive relief, foreclosure of any lien, or any combination thereof; however, the procedures
established in Sections 1363.810 et seq., and 1369.510 et seq. of the California Civil Code must
first be followed.
11.2.3 Additional Remedies. The Board may adopt a schedule of reasonable
fines or penalties which, in its reasonable discretion, the Board may assess against a Person for
the failure of such Person to comply with the Restrictions. Such fines or penalties may only be
assessed after Notice and Hearing. After notice and hearing, the Board may direct the officers of
the Association to Record a notice of noncompliance (if allowed by law) against the
Condominium owned by any Owner who has violated any provision of this Declaration. The
notice shall include a legal description of the Condominium and shall specify the provision of the
SDHU0387.000 IV552523.10 9/22/2006 -35-
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Declaration that was violated, the violation committed, and the steps required to remedy the
noncompliance. Once the noncompliance is remedied or the non-complying Owner has taken
such other steps as reasonably required by the Board, the Board shall direct the officers of the
Association to Record a notice that the noncompliance has been remedied.
11.2.4 No Waiver. Failure to enforce any provision of this Declaration does not
waive the right to enforce that provision, or any other provision of this Declaration.
11.2.5 Right to Enforce. The Board and any Owner may enforce the
Restrictions as described in this Article, subject to Sections 1363.810 et seq., and 1369.510 et
seq. of the California Civil Code. Each Owner has a right of action against the Association for
the Association's failure to comply with the Restrictions. Each remedy provided for in this
Declaration is cumulative and not exclusive or exhaustive.
11.2.6 Limit on Expenditures. The Association may not incur litigation
expenses, including attorneys' fees, or borrow money to fiind litigation, where the Association
initiates legal proceedings or is joined as a plaintiff in legal proceedings, unless the Association
first obtains the consent of sixty-seven percent (67%) of the Association voting power (excluding
the voting power of any Owner who would be a defendant in such proceedings), and, if
applicable, complies with the requirements of Sections 1363.810 et seq., and 1369.510 et seq. of
the California Civil Code. Such approval is not necessary if the legal proceedings are initiated
(a) to enforce the architectural and landscaping control provisions contained in Article HI, (b) to
collect any unpaid Assessments levied pursuant to the Restrictions, (c) for a claim, the total value
of which is less than five hundred thousand dollars ($500,000), or (d) as a cross-complaint in
litigation to which the Association is already a party. If the Association decides to use or transfer
reserve funds or borrow funds to pay for any litigation, the Association must notify the Owners
of the decision by mail. Such notice shall provide an explanation of why the litigation is being
initiated or defended, why operating funds cannot be used, how and when the reserve funds will
be replaced or the loan will be repaid, and a proposed budget for the litigation. The notice must
state that the Owners have a right to review an accounting for the litigation which will be
available at the Association's office. The accounting shall be updated quarterly.
11.2.7 Enforcement by City. The City shall have the right, but not the
obligation, to enforce all provisions of this Declaration respecting the maintenance, repair and
replacement of the Association Property and all Improvements on the Properties, including
without limitation landscaping, driveways and parking areas.
11.3. Nonpayment of Assessments.
11.3.1 Delinquency. Assessments are delinquent if not paid within fifteen (15)
days after the due date established by the Association. Assessments not paid within fifteen (15)
days after the due date, plus all reasonable costs of collection (including attorneys' fees) and late
charges bear interest at the maximum rate permitted by law commencing fifteen (15) days after
the due date until paid. The Association may also require the delinquent Owner to pay a late
charge in accordance with California Civil Code Section 1366(d)(2). The Association need not
accept any tender of a partial payment of an Assessment and all costs and attorneys' fees
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attributable thereto. Acceptance of any such tender does not waive the Association's right to
demand and receive full payment.
11.3.2 Creation and Release of Lien.
(a) Priority of Lien. All sums assessed in accordance with this
Declaration constitute a lien on the respective Condominium prior and superior to (i) any
declaration of homestead Recorded after the Recordation of this Declaration, and (ii) all other
liens, except (1) all taxes, bonds, Assessments and other levies which, by law, would be superior
thereto, and (2) the lien or charge of any first Mortgage of Record (meaning any Recorded
Mortgage with first priority or seniority over other Mortgages) made in good faith and for value
and Recorded before the date on which the "Notice of Delinquent Assessment" (described in this
Section) against the respective Condominium was Recorded.
(b) Prerequisite to Creating Lien. Before the Association may place
a lien on an Owner's Condominium to collect a past due Assessment, the Association shall send
a written notice to the Ownef by certified mail which contains the information required by
California Civil Code Section 1367.1 (a) or any successor statute.
- (c) Notice of Delinquent Assessment. The lien becomes effective on
Recordation by the Board or its authorized agent of a Notice of Delinquent Assessment {"Notice
of Delinquent Assessment") securing the payment of any Assessment or installment thereof
levied by the Association against any Condominium Owner, as provided in Section 1367.1(d) of
the California Civil Code or any successor statute. The Notice of Delinquent Assessment shall
comply with California Civil Code Section 1367.l(d) or any successor statute. Prior to recording
a lien for delinquent Assessments, the Association shall offer the Owner and, if so requested by
the Owner, participate in dispute resolution pursuant to California Civil Code Section 1363.810
et seq.
(d) Release of Lien, On payment of the full amount claimed in the
Notice of Delinquent Assessment, or other satisfaction thereof, the Board shall cause to be
Recorded a Notice of Satisfaction and Release of Lien ("Notice of Release") stating the
satisfaction and release of the amount claimed. The Board may require the Owner to pay a
reasonable charge for preparing and Recording the Notice of Release. Any purchaser or
encumbrancer who has acted in good faith and extended value may rely on the Notice of Release
as conclusive evidence of the full satisfaction of the sums identified as owed in the Notice of
Delinquent Assessment.
11.3.3 Enforcement of Liens. The Board shall enforce the collection of amounts
due under this Declaration by one (1) or more of the alternative means of relief afforded by
California Civil Code Section 1367.4 or any successor statute. Subject to California Civil Code
Section 1367.4, or any successor statute, the lien on a Condominium may be enforced by
foreclosure and sale of the Condominium, after failure of the Owner to pay any Assessment, or
installment thereof. Pursuant to California Civil Code Section 1367.1(c), prior to initiating a
foreclosure for delinquent Assessments, the Association shall offer the Owner and, if so
requested by the Owner, shall participate in dispute resolution pursuant to California Civil Code
Sections 1363.810 et seq. or 1369.510 et seq. The sale shall be conducted in accordance with the
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provisions of the California Civil Code applicable to the exercise of powers of sale in Mortgages,
or in any manner permitted by law. If authorized under California Civil Code Section 1367.4,
the Association may sue to foreclose the lien if (a) at least thirty (30) days have elapsed since the
date on which the Notice of Delinquent Assessment was Recorded and (b) at least ten (10) days
have elapsed since a copy of the Notice of Delinquent Assessment was mailed to the Qwner
affected thereby. The Association may bid on the Condominium at foreclosure sale, and acquire
and hold, lease, mortgage and convey the same. On completion of the foreclosure sale, the
Association or the purchaser at the sale may file suit to secure occupancy of the defaulting
Owner's Condominium, and the defaulting Owner shall be required to pay the reasonable rental
value for the Condominium during any period of continued occupancy by the defaulting Owner
or any persons claiming under the defaulting Owner. A suit to recover a money judgment for
unpaid Assessments may be brought without foreclosing or waiving any lien securing the same,
but this provision or any suit to recover a money judgment does not affirm the adequacy of
money damages. Any recovery resulting from a suit at law or in equity initiated pursuant to this
Section may include reasonable attorneys' fees as fixed by the court. Pursuant to California
Civil Code Section 1367.4(c)(4) or any successor statute, a non-judicial foreclosure by the
Association to collect upon a delinquent Assessment shall be subject to a right of redemption
within ninety (90) days after the sale.
11.3.4 Priority of Assessment Lien. Mortgages Recorded before a Notice of
Delinquent Assessment have lien priority over the Notice of Delinquent Assessment. Sale or
transfer of any Condominium does not affect the Assessment lien, except that the sale or transfer
of any Condominium pursuant to judicial or nonjudicial foreclosure of a first Mortgage
extinguishes the lien of such Assessments as to payments which became due before such sale or
transfer. No sale or transfer relieves such Condominium from liens for any Assessments
thereafter becoming due. No Person who obtains title to a Condominium pursuant to a judicial
or nonjudicial foreclosure of the first Mortgage is liable for the share of the Common Expenses
or Assessments chargeable to such Condominium which became due before the acquisition of
title to the Condominium by such Person ("Foreclosure Purchaser"). The Association shall
retain all rights and remedies against the prior Owner ("Foreclosed Owner") for such Foreclosed
Owner's share of the Common Expenses or Assessments chargeable to the applicable
Condominium which became due before the acquisition of title to the Condominium by the
Foreclosure Purchaser and if the Association is unable to collect same from the Foreclosed
Owner within a reasonable time, the unpaid share of Common Expenses or Assessments is a
Common Expense shall be collectible from all Owners including the Foreclosure Purchaser.
11.3.5 Receivers. In addition to the foreclosure and other remedies granted the
Association in this Declaration, each Owner, by acceptance of a deed to such Owner's
Condominium, conveys to the Association all of such Owner's right, title and interest in all rents,
issues and profits derived from and appurtenant to such Condominium, subject to the right of the
Association to collect and apply such rents, issues and profits to any delinquent Assessments
owed by such Owner, reserving to the Owner the right, before any default by the Owner in the
payment of Assessments, to collect and retain such rents, issues and profits as they may become
due and payable. On any such default the Association may, on the expiration of thirty (30) days
following delivery to the Owner of the "Notice of Delinquent Assessment" described in this
Declaration, either in person, by agent or by receiver to be appointed by a court, and without
regard to the adequacy of any security for the indebtedness secured by the Hen described in this
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Declaration, (a) enter in or on and take possession of the Condominium or any part thereof, (b) in
the Association's name sue for or otherwise collect such rents, issues and profits, including those
past due and unpaid, and (c) apply the same, less allowable expenses of operation, to any
delinquencies of the Owner, and in such order as the Association may determine. The entering
upon.and taking possession of the Condominium, the collection of rents, issues and profits and
the application thereof, shall not cure or waive any default or notice of default under this
Declaration or invalidate any act done pursuant to such notice.
ARTICLE XII
DURATION AND AMENDMENT
12.1. Duration. This Declaration shall continue in full force unless a declaration of
termination satisfying the requirements of an amendment to this Declaration established in
Section 12.2 is Recorded.
12.2. Termination And Amendment.
12.2.1 Amendment By Declarant. So long as Declarant owns all or any portion
of the Properties and/or Annexable Territory, except as otherwise specially provided in this
Declaration, Declarant, acting unilaterally, without the approval of Owners or the Association,
may amend this Declaration, by Recording a written instrument signed by Declarant setting forth
such amendment.
12.2.2 Amendment By Owners. The provisions of this Declaration may be
amended by the Owners by Recording an instrument, signed and acknowledged by Declarant
(for so long as Declarant owns any portion of the Properties and/or Annexable Territory) and two
(2) officers of the Association, setting forth the amendment and certifying that such amendment
has been approved by Owners representing sixty-seven percent (67%) of the voting power of the
Association and the requisite percentage of holders and insurers of first Mortgages, in the case of
those amendments which this Declaration requires to be approved by first Mortgagees. The
Association shall keep in its files for at least four (4) years the record of all such approvals.
Amendments shall be effective upon Recordation; A copy of each amendment must be certified
by at least two (2) Association officers. The amendment becomes effective when a Certificate of
Amendment is Recorded.
12.2.3 Approval of First Mortgagees. Notwithstanding the foregoing, any of
the following amendments, to be effective, must be approved by fifty-one percent (51%) of the
first Mortgagees who have requested the Association to notify them of proposed action requiring
the consent of a specified percentage of first Mortgagees, based upon one (1) vote for each
Assessment Unit allocated to a Condominium pledged as security for the respective first
Mortgage:
(a) Rights of Lenders. Any amendment which affects or purports to
affect the validity or priority of encumbrances or the rights or protections granted to
Beneficiaries of first Mortgages as provided in this Declaration.
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(b) Lien Priority. Any amendment which would necessitate a
Mortgagee after it has acquired a Condominium through foreclosure to pay more than its
proportionate share of any unpaid assessment or assessments accruing after such foreclosure.
(c) Forfeitures and Taxes. Any amendment which would or could
result in (a) an encumbrance being cancelled by forfeiture, or (b) an individual Lot not being
separately assessed for tax purposes.
(d) Insurance and Condemnation. Any amendment relating to the
insurance provisions as set out in Article VI hereof, or to the application of insurance proceeds as
set out in Article VI hereof, or to the disposition of any money received in any taking under
condemnation proceedings.
(e) Termination and Subdivision. Any amendment which would or
could result in termination or abandonment of the Properties or partition or subdivision of a Lot
in any manner inconsistent with the provisions of this Declaration; provided that termination of
the legal status of the Properties as a common interest development for reasons other than
substantial destruction or condemnation of the Properties must be approved by the institutional
Record holders of sixty-seven percent (67%) of the first Mortgages at the time of such
amendment.
Any approval by a holder of a first Mortgage required under this Section 12.2.4, or
required pursuant to any other provisions of the Restrictions, must either be given in writing, or
is deemed given if, within thirty (30) days after receipt of written notice of the proposed action
sent via registered or certified mail, return receipt requested, the holder does not submit a written
response to the notice.
12.2.4 Notice to Mortgagees. Each Mortgagee of a first Mortgage on a
Condominium in the Properties which receives proper written notice of a proposed amendment
or termination of this Declaration with a return receipt requested is deemed to have approved the
amendment or termination if the Mortgagee fails to submit a response to the notice within thirty
(30) days after the Mortgagee receives the notice.
ARTICLE Xffl
GENERAL PROVISIONS
13.1. Mergers or Consolidations. In a merger or consolidation of the Association
with another association, its properties, rights and obligations may, by operation of law, be
transferred to another surviving or consolidated association or, alternatively, the properties,
rights and obligations 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 covenants,
conditions and restrictions established by this Declaration governing the Properties, together with
the covenants and restrictions established on any other property, as one (1) plan.
13.2. No Public Right or Dedication. Nothing in this Declaration is a gift or
dedication of all or any part of the Properties to the public, or for any public use.
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13.3. Notices. Except as otherwise provided in this Declaration, notice to be given to
an Owner must be in writing and may be delivered personally to the Owner. Personal delivery of
such notice to one (1) or more co-owners, or any general partner of a partnership owning a
Condominium, constitutes delivery to all owners. Personal delivery of such notice to any officer
or agent for the service of process on a corporation or limited liability company constitutes
delivery to the corporation or limited liability company. Such notice may also be delivered by
regular United States mail, postage prepaid, addressed to the Owner at the most recent address
furnished by such Owner to the Association or, if no such address has been furnished, to the
street address of such Owner's Condominium. Such notice is deemed delivered three (3)
business days after the time of such mailing, except for notice of a meeting of Owners or of the
Board, in which case the notice provisions of the Bylaws control. Any notice to be given to the
Association may be delivered personally to any member of the Board, or sent by United States
mail, postage prepaid, addressed to the Association at such address as may be fixed and
circulated to all Owners.
13.4. Constructive Notice And Acceptance. Every Person who owns, occupies or
acquires any right, title, estate or interest in or to any Condominium or other portion of the
Properties does consent and agree, and shall be conclusively deemed to have consented and
agreed, to every limit, restriction, easement, reservation, condition and covenant contained in this
Declaration, whether or not any reference to these restrictions is in the instrument by which such
person acquired an interest in the Properties.
ARTICLE XIV
DECLARANT'S RIGHTS AND RESERVATIONS
If there is a conflict between any other portion of the Restrictions and this Article, this
Article shall control.
14.1. Construction Rights. Declarant has the right to (a) subdivide or resubdivide the
Properties and/or Annexable Territory, (b) complete or modify Improvements to and on the
Common Property or any portion of the Properties and/or Annexable Territory owned solely or
partially by Declarant, (c) alter Improvements and Declarant's construction plans and designs,
(d) modify Declarant's development plan for the Properties including constructing
Condominiums of larger or smaller sizes, values, and of different types, and (e) construct such
additional Improvements as Declarant considers advisable in the course of development of the
Properties so long as any Condominium in the Properties remains unsold.
14.2. Sales And Marketing Rights. Declarant's rights under this Declaration include,
but are not limited to, the right to install and maintain such structures, displays, signs, billboards,
flags and sales offices as may be reasonably necessary to conduct Declarant's business of
completing the work and disposing of the Properties and/or Annexable Territory by sale, resale,
lease or otherwise. Declarant may use any Condominiums owned or leased by Declarant in the
Properties as model complexes, real estate sales offices or leasing offices.
14.3. Creating Additional Easements. At any time before acquisition of title to a
Condominium in the Properties and/or Annexable Territory by a purchaser from Declarant,
Declarant has the right to establish on that Condominium additional licenses, easements,
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reservations and rights-of-way to itself, to utility companies, or to others as Declarant determines
are reasonably necessary to the proper development and disposition of the Properties and/or
Annexable Territory.
14.4. Architectural Rights. Declarant and any Person to whom Declarant may assign
all or a portion of its exemption under this Declaration need not seek or obtain Design Review
Committee approval of any Improvements constructed, repair or modified anywhere on the
Properties and/or Annexable Territory by Declarant or such Person
14.5. Assignment of Rights. Declarant may assign its rights under the Restrictions to
any successor in interest to any portion of Declarant's interest in the Properties and/or Annexable
Territory by a written assignment.
14.6. Amendments. So long as Declarant owns a Condominium in the Properties
and/or Annexable Territory, no amendment may be made to this Declaration without the prior
written approval of Declarant.
14.7. Exercise of Rights. Each Owner grants an irrevocable, special power of attorney
to Declarant to execute and Record all documents and maps necessary to allow Declarant to
exercise its rights under this Article.
14.8. Use of Properties. Declarant and its prospective purchasers of Condominiums
are entitled to the nonexclusive use of the Common Property, without further cost for access,
ingress, egress, use or enjoyment, to (a) show the Properties to prospective purchasers, and (b)
dispose of the Properties and/or Annexable Territory as provided in this Declaration. Declarant,
and prospective purchasers, are also entitled to the nonexclusive use of any portions of the
Properties which are private streets, drives and walkways for ingress, egress and accommodating
vehicular and pedestrian traffic to and from the Properties. The use of the Common Property by
Declarant may not unreasonably interfere with the use thereof by the other Owners.
14.9. Participation in Association. The Association shall provide Declarant with
written notice of the transfer of any Condominium and all notices and other documents to which
a Mortgagee is entitled pursuant to this Declaration, provided that Declarant shall be provided
such notices and other documents without making written request therefor. Commencing on the
date on which Declarant no longer has an elected representative on the Board, and continuing
until the later to occur of the date on which Declarant no longer owns a Condominium in the
Properties, the Association shall provide Declarant with written notice of all meetings of the
Board as if Declarant were an Owner and Declarant shall be entitled to have a representative
present at all such Board meetings ("Declarant's Representative"). The Declarant's
Representative shall be present in an advisory capacity only and shall not be a Board member or
have any right to vote on matters coming before the Board.
14.10. Declarant Approval of Actions.
14.10.1 General Rights. Until Declarant no longer owns a Condominium in the
Properties or any portion of the Annexable Territory, Declarant's prior written approval is
required for any amendment to the Restrictions which would impair or diminish Declarant's
rights to complete the Properties and the Annexable Territory or sell or lease units therein.
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14.10.2 Limit on Actions. Until Declarant no longer owns a Condominium in
the Properties or any portion of the Annexable Territory the following actions, before being
undertaken by the Association, must first be approved in writing by Declarant:
(a) Any amendment or action requiring the approval of first
Mortgagees;
(b) The annexation to the Properties of other real property;
(c) The levy of a Capital Improvement Assessment for the
construction of new facilities not constructed on the Common Property by Declarant;
(d) Any significant reduction of Association maintenance or other
services; or
(e) Any modification or termination of any provision of the
Restrictions benefiting Declarant. .
14.11. Marketing Name. Declarant may change the marketing name of the Properties
or designate a different marketing name at any time in Declarant's sole discretion.
14.12. Power of Attorney. Each Owner of a Condominium, by accepting a deed to a
Condominium, shall be deemed to have agreed to constitute and irrevocably appointed
Declarant, for so long as Declarant owns all or any portion of the Properties, as such Owner's
Attomey-in-Fact, for such Owner and each of such Owner's Mortgagees, optionees, grantees,
licensees, trustees, receivers, lessees, tenants, judgment creditors, heirs, legatees, devisees,
administrators, executors, legal representatives, successors and assigns, whether voluntary or
involuntary, and thereby to have conveyed a Power of Attorney coupled with an interest to
Declarant as his Attorney in Fact to prepare, execute, acknowledge and Record any
Condominium Plan or amendment to any Condominium Plan for all or any portion of the
Properties. The acceptance or creation of any Mortgage or other encumbrance whether or not
voluntary, created in good faith, or given for value, shall be deemed to be accepted or created
subject to each of the terms and conditions of the Power of Attorney described in this Section.
14.13. Dispute Resolution. Any disputes between all or any of (a) the Association
and/or any Owner(s) and (b) the Declarant or any director, officer, partner, employer, contractor,
subcontractor, design professional, consultant or agent of the Declarant (collectively, "Declarant
Parties"} arising under this Declaration or relating to the Properties (excluding disputes solely
between Declarant and any other Declarant Party or Parties and disputes regarding payment of
assessments), including without limitation construction defect disputes, shall be resolved as
follows: Prior to the commencement of any legal action by the Association or any Owner(s)
against the Declarant or Declarant Party, including claims for defects in the design or
construction of any Unit, the Association Property or Improvements thereon, the Association, or
Owner must first comply with the requirements of Civil Code Section 1375 (notwithstanding the
fact that Section 1375 does not apply to Owners or the Properties by its terms). If the parties are
unable to resolve their dispute in accordance with the procedures established under Civil Code
Section 1375, the dispute shall be submitted to general judicial reference pursuant to California
Code of Civil Procedure Sections 638(1) and 641-645 or any successor statutes thereto. The
SDII\30387.000I\352523.10 9/22/2006 -43-
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parties shall cooperate in good faith to ensure that all necessary and appropriate parties are
included in the judicial reference proceeding. The parties shall share equally in the fees and
costs of the referee, unless the referee orders otherwise but shall each be solely responsible for
their own attorneys' fees (and the referee shall not be entitled to award attorneys fees to any
party). The general referee shall have the authority to try all issues, whether of fact or law, and
to report a statement of decision to the court. The parties shall use the procedures adopted by
Judicial Arbitration and Mediation Services ( "JAMS") for judicial reference and selection of a
referee (or any other entity offering judicial reference dispute resolution procedures as may be
mutually acceptable to the parties), provided that the following rules and procedures shall apply
in all cases unless the parties agree otherwise:
(1) The proceedings shall be heard in the county in which the Properties are located;
(2) The referee must be a retired judge or a licensed attorney with substantial
experience in relevant real estate matters;
(3) Any dispute regarding the selection of the referee shall be resolved by JAMS or
the entity providing the reference services, or, if no entity is involved, by the court with
appropriate jurisdiction;
(4) The referee may require one or more pre-hearing conferences;
(5) The parties shall be entitled to discovery, and the referee shall oversee discovery
and may enforce all discovery orders in the same manner as any trial court judge;
(6) A stenographic record of the trial shall be made, provided that the record shall
remain confidential except as may be necessary for post-hearing motions and any appeals;
(7) The referee's statement of decision shall contain findings of fact and conclusions
of law to the extent applicable; and
(8) The referee shall have the authority to rule on all post-hearing motions in the
same manner as a trial judge.
The statement of decision of the referee upon all of the issues considered by the referee is
binding upon the parties, and upon filing of the statement of decision with the clerk of the court,
or with the judge where there is no clerk, judgment may be entered thereon. The decision of the
referee shall be appealable as if rendered by the court. This provision shall in no way be
construed to limit any valid cause of action which may be brought by any of the parties. The
parties acknowledge and accept that they are waiving their right to a jury trial.
ARTICLE XV
PROVISIONS BENEFITING PALOMAR FORUM ASSOCIATES
The following covenants, conditions and restrictions which are hereby declared to be for
the benefit of Palomar Forum Associates, L.P., a California limited partnership ("PFA "), its
successors and assigns, and the real property owned by PFA described in Exhibit "B" attached
hereto ("PFA Property"). These covenants, conditions and restrictions shall run with the
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Properties and every portion thereof and shall be binding upon all parties having or acquiring any
right or title in the Properties or any part thereof, and shall inure to the benefit of the fee owner
of the PFA Property and are imposed upon the Properties and every part thereof as a servitude in
favor of the PFA Property and every portion thereof as the dominant tenement or tenements. If
fee title to any portion of the PFA Property is conveyed by PFA to a third party ("Transferred
Parcel"), the provisions of this Article XV shall cease to benefit the Transferred Parcel unless
the deed conveying the Transferred Parcel or a separate recorded document executed by PFA
expressly assigns to the grantee of the Transferred Parcel the benefits of the provisions of this
Article XV by specific reference to this Article XV (general references to appurtenances or
rights related to the Transferred Parcel will not suffice).
15.1. CFD No. 3. PFA has formed or is in the process of forming Community
Facilities District No. 3 ("CFD No. 3"), which covers or will cover the Properties and additional
real property owned by PFA. By acceptance of a deed to all or any portion of the Properties,
each Owner hereby covenants, acknowledges and agrees as follows: (a) each Owner shall
cooperate in connection, and not impede or interfere, with the formation of CFD No. 3 and the
issuance and sale of bonds by CFD No. 3, including executing any documents reasonably
requested by PFA the City or other public agency in connection with the formation of CFD No.
3, the authorization and imposition of special taxes or assessments of CFD No. 3 and the
authorization, issuance and sale of bonds; (b) each Owner agrees not to contest, protest or
otherwise challenge the authorization and levy of special taxes and assessments on the Properties
and hereby authorizes PFA, or a designated representative of PFA, to execute any ballots
required to establish and authorize special taxes or assessments of CFD No. 3 and to authorize
bonds; (c) all reimbursements from CFD No. 3 are the sole and exclusive property of PFA and
no other Owner shall have any rights thereto, and if any such reimbursements are paid to an
Owner, such Owner shall within ten (10) business days pay the amount of such reimbursement to
PFA (with any amount not paid when due bearing interest at ten percent (10%) per annum until
paid in full); and (d) each Owner shall execute such documents and instruments as PFA may
reasonably require to cause CFD No. 3 to pay all reimbursements to PFA.
15.2. Amendments to and Termination of this Declaration. For so long as PFA (or
any affiliate of PFA) owns any portion of the real property described in Exhibit "B" attached
hereto, this Declaration cannot be amended or terminated without the express written consent of
PFA.
ARTICLE XVI
ANNEXATION OF ADDITIONAL PROPERTY
Additional real property may be annexed to the Properties and such additional real
property may become subject to this Declaration by any of the following methods:
16.1. Additions by Declarant. Declarant may at any time and from time to time add
the Annexable Territory to the Properties and bring such added territory within the general plan
of this Declaration without the approval of the Association, the Board or Owners so long as
Declarant, its successors or assigns owns the Annexable Territory.
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i
i
I
16.2. Other Additions. Additional real property may be annexed to the Properties and
brought within the general plan of this Declaration on the approval by vote or written consent of
Owners entitled to exercise no less than two-thirds (2/3) of the Association's voting power.
16.3. Rights And Obligations - Added Territory. Subject to the provisions of
Section 16.4, when a Notice of Addition containing the provisions required by this Section is
Recorded, all provisions in this Declaration will apply to the real property described in the
Notice of Addition (the "Added Territory") in the same manner as if the real property were
originally covered by this Declaration. Thereafter, the rights, powers and responsibilities of the
parties to this Declaration with respect to the Added Territory will be the same as with respect to
the property originally covered by this Declaration, and the rights, powers and responsibilities of
the Owners, lessees and occupants of Condominiums in the Added Territory, as well as in the
property originally subject to this Declaration, will be the same as if the Added Territory were
originally covered by this Declaration. After the first day of the month following the first Close
of Escrow in the Added Territory, the Owner of Condominiums located in the Added Territory
shall share in the payment of Assessments to the Association to meet Common Expenses of the
entire Properties. Voting rights attributable to the Condominiums in the Added Territory may
not be exercised until Annual Assessments have commenced on such Condominiums.
16.4. Notice of Addition. The additions authorized under Sections 16.1 and 16.2 must
be made by Recording a Notice of Addition which will extend the general plan of this
Declaration to such Added Territory. The Notice of Addition for any addition under Section
16.1 must be signed by Declarant The Notice of Addition for any addition under Section 16.2
must be signed by at least two (2) officers of the Association to certify that the Owner approval
required under Section 16.2 was obtained. Recordation of the Notice of Addition effectuates
annexation of the property described in the Notice of Addition as Added Territory. After the
first Close of Escrow in the Added Territory covered by a Notice of Addition, the Added
Territory will constitute a part of the Properties, become subject to this Declaration and
encompassed within the general plan of covenants, conditions, restrictions, reservation of
easements and equitable servitudes contained in this Declaration, and become subject to the
Association's functions, powers and jurisdiction; and the Owners of Condominiums in the
Added Territory will automatically acquire Membership. In no event, however, may any Notice
of Addition revoke, modify or add to the covenants, conditions, restrictions, reservation of
easements, or equitable servitudes established by this Declaration as the same pertain to the real
property originally covered by this Declaration. The Notice of Addition may contain a
Supplemental Declaration of the covenants, conditions, restrictions, reservation of easements and
equitable servitudes in this Declaration if necessary to reflect the different character, if any, of
the Added Territory, or as Declarant deems appropriate in the development of the Added
Territory, and as are not materially inconsistent with the general plan of this Declaration.
Without limiting the generality of the foregoing, Declarant may in a Supplemental Declaration
(a) designate one or more one or more Improvements or maintenance areas ("Cost Centers"), the
expenses of operating, maintaining and replacing of which shall be borne solely or
disproportionately by Owners specified in the applicable Supplemental Declaration as being a
part of the applicable Cost Center and/or (b) provide for the manner in which Assessment Units
will be calculated for Condominiums in the Added Territory (unless otherwise specified in a
Supplemental Declaration, Assessment Units will be allocated as provided in Article V above).
SDHU0387.000I\352523.IO 9/22/2006 -46-
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16.5. Deannexation And Amendment. Declarant may amend a Notice of Addition or
delete all or a portion of a Phase from coverage of this Declaration and the Association's
jurisdiction, so long as Declarant is the owner of all of such Phase, and (a) an amending
instrument or a Notice of Deletion of Territory, as applicable, is Recorded in the same manner as
the Notice of Addition was Recorded, (b) Declarant has not exercised any Association vote with
respect to any portion of such Phase, (c) Assessments have not commenced with respect to any
portion of such Phase, (d) Close of Escrow has not occurred for the sale of any Condominium in
such Phase, and (e) the Association has not made any expenditures or incurred any obligations
with respect to any portion of such Phase.
16.6. Power of Attorney. Each Owner of a Condominium, by accepting a deed to a
Condominium, shall be deemed to have (a) agreed and acknowledged that the Owners own no
interest in the Annexable Territory which may be developed, if at all, by Declarant in its sole and
absolute discretion and (b) constitute and irrevocably appointed Declarant, for so long as
Declarant owns all or any portion of the Annexable Territory, as such Owner's Attorney-in-Fact,
for such Owner and each of such Owner's Mortgagees, optionees, grantees, licensees, trustees,
receivers, lessees, tenants, judgment creditors, heirs, legatees, devisees, administrators,
executors, legal representatives, successors and assigns, whether voluntary or involuntary, and
thereby to have conveyed a Power of Attorney coupled with an interest to Declarant as his
Attorney in Fact to prepare, execute, acknowledge and Record any Condominium Plan or
amendment to any Condominium Plan for all or any portion of the Properties. However, nothing
set forth herein shall be deemed or construed as an agreement by Declarant that any Owner shall
be entitled to any participation in or discretion over the preparation and Recordation of a
Condominium Plan or Plans for all or any portion of the Annexable Territory. The acceptance or
creation of any Mortgage or other encumbrance whether or not voluntary, created in good faith,
or given for value, shall be deemed to be accepted or created subject to each of the terms and
conditions of the Power of Attorney described in this Section.
ARTICLE XVII
PROVISIONS BENEFITING LOCAL JURISDICTION
17.1. City Enforcement Right. The City shall have the right, but not the obligation, to
enforce any provisions of this Declaration which were required by the Planning Commission of
the City in connection with the approval of the development of the Properties.
17.2. Notice to City of Amendments. No amendment to this Declaration that
terminates or modifies any portion of this Article XVII or any provision of this Declaration that
was required by the Planning Commission of the City in connection with the approval of the
development of the Properties shall be effective unless such amendment has been submitted to
the City and the City has approved same. A copy of any such amendment shall be delivered to
the City within thirty (30) days following the recording thereof.
17.3. Failure of Association to Maintain. In the event that the Association fails to
maintain the Common Property as provided in Section 2.6.2 of this Declaration, the City shall
have the right, but not the duty, to perform the necessary maintenance. If the City elects to
perform such maintenance, the City shall give written notice to the Association, with a copy
thereof to the Owners in the Properties, setting forth with particularity the maintenance which the
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City finds to be required and requesting the same be carried out by the Association within a
period of thirty (30) days from the giving of such notice. In the event that the Association fails
to carry out such maintenance of the Common Property, including Association easements, within
the period specified by the City's notice, the City shall be entitled to cause such work to be
completed and shall be entitled to reimbursement with respect thereto from the Owners as
provided herein.
17.4. Special Assessments Levied by the City. In the event the City has performed
the necessary maintenance to the Common Property, including Association easements, the City
shall submit a written invoice to the Association for all costs incurred by the City to perform
such maintenance of the Common Property. The City shall provide a copy of such invoice to
each Owner in the Properties, together with a statement that if the Association fails to pay such
invoice in full within the time specified, the City will pursue collection against the Owners in the
Properties pursuant to the provisions of this Section. Said invoice shall be due and payable by
the Association within twenty (20) days of receipt by the Association. If the Association shall
fail to pay such invoice in full within the period specified, payment shall be deemed delinquent
and shall be subject to a late charge in an amount equal to six percent (6%) of the amount of the
invoice. Thereafter the City may pursue collection from the Association by means of any
remedies available at law or in equity. Without limiting the generality of the foregoing, in
addition to all other rights and remedies available to the City, the City may levy a special
assessment against the Owners of each Unit in the Properties for a pro rata share of the invoice,
plus the late charge. Such special assessment shall constitute a charge on the land and shall be a
continuing lien upon each Unit against which the special assessment is levied. Each Owner in
the Properties hereby vests the City with the right and power to levy such special assessment, to
impose a lien upon their respective Unit and to bring al (legal actions and/or to pursue lien
foreclosure procedures against any Owner and his/her respective Unit for purposes of collecting
such special assessment in accordance with the procedures set forth in Section 11.3.2 of this
Declaration.
17.5. Landscape Maintenance Responsibilities. The Association shall maintain all
landscaping within the Common Property.
17.6. Parking Requirements. Notwithstanding anything to the contrary in the
Declaration, the Design Review Committee shall have no authority to approve the construction
of any Improvements which would cause the Properties to be in violation of parking ratio
requirements of the City applicable to the Properties.
17.7. Certain Common Property Improvements. The location and size of all
employee eating areas, parking areas, and landscaped areas within the Properties as shown on
Exhibit UD" attached hereto shall not be altered, reduced, fenced or divided to preclude the equal
use by all Owners and their employees.
17.8. Common Property Easements. The Owners' easements over the Common
Property set forth in Section 4.1.5 are not exclusive and shall be shared by all Owners. Such
easements shall not be terminated without the prior written approval of the City Planning
Director, City Engineer and City Attorney.
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17.9. Sight Distance Corridors. The recorded Map for the Properties contains the
following statement:
"No structure, fence, wall, tree, shrub, sign or other object shall be placed or
permitted on the subject property within the Caltrans comer sight distance
corridors. No obstructions shall impede nor conflict with the line-of-sight which
is established per City Standard Public Street-Design Criteria, Section 8.B.I. The
sight line is depicted on the tentative map and also applies to driveways. The
underlying property owner shall maintain this condition"
The Association shall be deemed the "underlying property owner" and shall maintain the
foregoing condition.
17.10. Additional Maintenance Covenants. The Association shall maintain the
Common Property in compliance with the provisions set forth in Exhibit "E" attached hereto.
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This Declaration is dated for identification purposes n .2006.
GREYHAWK ASSOCIATES,
a California corporation
"Declarant"
STATE OF CALIFORNIA )
) ss
COUNTY OF Dmv^g. )
On ^fsWAhpf 19 , 200j^_, before me,
personally appeared grgorftg- L •
L-_, a Notary Public,
personally known to me (or pro iacel to be the
person^whose nameCs)" is/are" subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/hor/thoir authorized capacity^ies^and that by his/hor/thoir
signature£e)T>n the instrument the persori(8)fbr the entity upon behalf of which the personj^s)-'
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
. s-i.Si I. ,c£L)MON
Commission tt 1577146
Notary Public - California
Orange County
pMv Comm. Expires May 9.2009
PBOffLREOMON k
Comnteton # 157714» I
Notary Puttte-CaSforrta |
OranoeCourty f
My Comm. Expfree May8.M09f
SDHV30387.000I \352523.10 9/13/2006 -50-
reffft REDMON L
CorrentaJon* 1577145 I
Notary Pubic-Cairtorrto |
Orange County
My Comm. Btptrei May 8.200«?f
4739
SUBORDINATION
The undersigned ("Beneficiary'*), as holder of the beneficial interest in and under that
certain Deed of Trust, among Greyhawk Associates, a California corporation, as Trustor, First
American Title Insurance Company, as Trustee, and CF First U, L.L.C., an Illinois limited
liability company, assignee of CF CTB Lender, LLC, an Illinois limited liability company,
assignee of Wrightwood Capital Lender LLC, an Illinois limited liability company, as
Beneficiary, recorded on August 11, 2005, as Instrument No. 2005-0984504 in Official Records
of San Diego County, California ("Deed of Trust"), expressly subordinates said Deeds of Trust
and its beneficial interest thereunder to the foregoing Declaration of Covenants, Conditions and
Restrictions and Reservation of Easements to which this Subordination is attached, as amended
or restated ("Declaration"), and to all easements to be conveyed to the Association in
accordance with the Declaration. By executing this Subordination, the undersigned agrees that
should the undersigned acquire title to all or any portion of the Properties by foreclosure
(whether judicial or nonjudicial), deed-in-lieu of foreclosure or any other remedy in or relating to
the Deed of Trust, the undersigned will acquire title subject to the provisions of the Declaration,
which shall remain in full force.and effect.
Dated: *// IV 2006 CF FIRST U, L.L.C.,
an Illinois limited liability company
By:
Its:
4740
STATE OF CTYtfFOrmiA )
// !/ ) ss
COUNTY OF H%?A—• )
. ftOn
personally appearednay
_, 200(£ before me,
^
I/iff
aNotary Public,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s^\vhose name^sfis/afe-subscribed to the within instrument and acknowledged to me that
he/sW&wy executed the same in hift%ef/their authorized capacity(ies), and that by his/her/thetr
signaturej$l/on the instrument the person(s)ror the entity upon behalf of which the person^a)"
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
) /
OFFICIAL SEAL
LISA GUARNIERI
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES4-7
i<.<.^i.i'.-.-i"
(Seal)
SDl 1X30387.0001 \352523.10 9/13/2006 -52-
474
SUBORDINATION
The undersigned ("Beneficiary"), as holder of the beneficial interest in and under that
certain Deed of Trust, among Greyhawk Associates, a California corporation, as Trustor, First
American Title Insurance Company, as Trustee, and Palomar Forum Associates L.P., a
California limited partnership, as Beneficiary, recorded on August 11,2005, as Instrument No.
2005-0689435 in Official Records of San Diego County, California ("Deed of Trust"), expressly
subordinates said Deeds of Trust and its beneficial interest thereunder to the foregoing
Declaration of Covenants, Conditions and Restrictions and Reservation of Easements to which
this Subordination is attached, as amended or restated ("Declaration"), and to all easements to
be conveyed to the Association in accordance with the Declaration. By executing this
Subordination, the undersigned agrees that should the undersigned acquire title to all or any
portion of the Properties by foreclosure (whether judicial or nonjudicial), deed-in-lieu of
foreclosure or any other remedy in or relating to the Deed of Trust, the undersigned will acquire
title subject to the provisions of the Declaration, which shall remain in full force and effect.
Dated: H I ^ 1 2006 PALOMAR FORUM ASSOCIATES L.P., a
California limited partnership
By: Davis Carlsbad Partners, a California
^general-parti ershtp—~^^
Bv: •'
SDHVJ0387.OOOIV352523.10 9/13/2006 -53-
4742
STATE OF CALIFORNIA
COUNTY OF
)
) ss
.)
_ , . ). 200_6, before me, U.
personally appeared f\obefT' ^".
_, a Notary Public,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(si) whose name(s$ is/a*e subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/hor/thcir authorized capacity(ws), and that by his/hw&hetr
signature(a) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS/
Signature
official seal.
D.RANOAZZO
Conw. # 14M506
NOtARY PUM.C • CALIFORNIA
ORANGE COUNTY
My Conwi. ExjIrM Jt««iy ». 2008
(Seal)
SDH\30387.000 IV552523.10 9/13/2006 -54-
4743
EXHIBIT "A"
ANNEXABLE TERRITORY
Lot 6 and 7 of Carlsbad Tract 99-06, in the City of Carlsbad, County of San Diego, State
of California, according to Map thereof No. 14831, filed in the Office of the County
Recorder of San Diego County, June 29,2004.
Said property is also described and shown in Exhibit "A" of the Certificate of
Compliance for Adjustment Plot recorded August 7,2006, as Document No. 2006-
0557341, Official Records of San Diego County, California.
SDH\30387.000I\352523.109/2 2/2006
4744
EXHIBIT "B"
PFA PROPERTY
Lots 1 to 3, inclusive, and Lots 8 to 10, inclusive, of Carlsbad Tract 99-06, in the City of
Carlsbad, County of San Diego, State of California, according to Map thereof No. 14831,
filed in the Office of the County Recorder of San Diego County, June 29,2004.
SDH\30387.000I\352523.10 9/22/2006
4745
EXHIBIT "C"
ALLOCATION OF ASSESSMENT UNITS/
PERCENTAGE SHARE OF COMMON EXPENSES
Unit No.
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Street Address
3210GreyhawkCt.
3214GreyhawkCt.
3216GreyhawkCt.
3220 Greyhawk Ct.
3222 Greyhawk Ct.
3226 Greyhawk Ct.
3228 Greyhawk Ct.
3232 Greyhawk Ct.
3234 Greyhawk Ct.
3238 Greyhawk Ct.
3240 Greyhawk Ct.
3244 Greyhawk Ct.
3246 Greyhawk Ct.
3282 Greyhawk Ct.
3280 Greyhawk Ct.
3278 Greyhawk Ct.
3274 Greyhawk Ct.
3272 Greyhawk Ct.
3270 Greyhawk Ct.
3266 Greyhawk Ct.
3264 Greyhawk Ct.
3262 Greyhawk Ct.
3258 Greyhawk Ct.
3256 Greyhawk Ct.
3254 Greyhawk Ct.
3250 Greyhawk Ct.
3284 Greyhawk Ct.
3288 Greyhawk Ct.
Total:
Assessment Units
Allocated to Unit
2.75
1.94
2.03
2.58
2.49
2.11
2.21
2.32
2.23
4.98
5.02
4.47
2.99
4.03
3.88
4.02
2.10
2.19
2.22
3.39
3.43
3.43
4.89
4.84
6.16
5.03
6.49
5.78
Percentage Share
of Common Expenses
2.75%
1.94%
2.03%
2.58%
2.49%
2.11%
2.21%
2.32%
2.23%
4.98%
5.02%
4.47%
2.99%
4.03%
3.88%
4.02%
2.10%
2.19%
2.22%
3.39%
3.43%
3.43%
4.89%
4.84%
6.16%
5.03%
6.49%
5.78%
100.00%
SDii\30387.oooi\352523.io9/22/20o6SDH\30387.0001\352523.10 9/22/2006
4746
son\30387.oooi\352523.io9/22/20o&SDH\30387.0001\352523.10 9/22/2006
4747
EXHIBIT "D"
DEPICTION OF EATING AREAS, PARKING AREAS AND LANDSCAPED AREAS
SDH\30387.oooi\352523.io9/22^oo6SDH\30387.0001\352523.109/22/2006SDH\30387.0001\352523.10
9/22/2006SDH\30387.0001\352523.10 9/22/2006SDH\30387.0001\352523.10 9/22/2006
CO
I — I
MATCHUNE - SEE SHEET 13
MATCHUNE - SEE SHEET 15
APPROVE
AND IRRIINCLUDIN
LOCATION
AREAS.
a*
\
MATCHUNE - SEE SHEET 13
APPRGVl
AND IRF
INCLUOH
LOCATIO
AREAS.
MATCHUNE- SEE SHEET 15
APPROVt
AND IRR
INCLUOIh
LOCAT10I
AREAS.
Ift MATCHUNE - SEE SHEET 11
l~m «•()***** • »•» *r V ' * **
MATCHUNE - SEE SHEET 14
APPROVEIAND IRKU
(NCLUDIN'
LOCATION
AREAS.
u—i—i
c*kft
-GREYHAWK-G^URD
MATCHUNE - SEE SHEET 13
f"! I ! ! ll I |! J I' A \ I/, .-.. ...... .... ., .f > r -i-,..... .-y
U i I i'iiiN ,1 I I (
APPROVl
AND IRR
INCLU01I
LOCATlOi
AREAS.•- \-\ :
eo
|...... J .- i-
APPROVE
AND IRR
INCLUDE
LOCATIOI
AREAS.
RIGHT-OF-WAY LANDSCAPE AND
STREET TREEfi PER CITY APPROVE
DRAWING 399WM
REPLACE'li) KOELR _ ._.
WITH (4)-UGERSTROEMIA INDICA
TUSCARORA148' BOX TRE
REPLANT ALL LANDSCAPE WITHIN THE
35' LANDSCAPE SETBACK AS SHOWN
w '''••'•
RFI-1
PROJECT NO. TDGXM-62
DATE: 07/ZU06
SCALE:
TESHIMA DESIGN GROUP
lAMDSCWC WCMTTECTWE » UNDPUMMMa
IW9 OMMfSSFMK Ml. SUITEC ttH OEOO CA O1»l
f
PALOMAR FORUM, LOTS
CARLSBAD, CALIFORNIA
^ HAWK COD
4755
EXHIBIT "E"
ADDITIONAL MAINTENANCE COVENANTS
1.1 Irrigation; Slopes and Vegetated Areas; Parking Lot Maintenance.
1.1.1 Efficient Irrigation System. The operational and maintenance needs of an
irrigation system are:
• Visual inspection of all sprinkler heads and lines
• Testing of all irrigation stations to verify if each landscape area is getting the correct
amount of water
• Periodic testing of all flow reducers and/or snutoff valves to verify in good working order
Inspection Frequency
• Inspecting/testing shall be monthly at a minimum or as directed by the local governing
official. All improperly operating apparatus shall be replaced within 2 working days
• Broken sprinkler heads and/or lines will be repaired or replaced within 2 working days
1.1.2 Protect Slopes and Vegetated Areas. The operational and maintenance needs to
protect any .slopes and channels shall be:
• Visual inspection of slopes and vegetated area for bare areas, dead plants, weeds and
surface erosion
Inspection Frequency
• Slopes and vegetated areas shall be inspected on a monthly basis
Maintenance
• Bare areas shall be replanted per the approved landscape plans or with a hydroseed mix
as shown on the Grading Plans
• Dead plants shall be removed and replaced per the approved landscape plans
• Weeds shall be removed by hand and disposed of off-site per the City of Carlsbad
Municipal Code
• Animal burrows will be filled and steps will be taken to remove the animals if burrowing
problems continue to occur (filling and compacting). If the problem persists, vector
control specialists will be consulted regarding removal steps. This consulting is
. necessary as the threat of rabies in some areas may necessitate the animals being
destroyed rather than relocated. If the BMP performance is affected, abatement will
begin. Otherwise, abatement will be performed annually in September.
SDH\30387.0001\J52523.109/22/2006 E-l
4756
1.1.3 Parking Lot Maintenance. The parking lot will be swept on a monthly basis.
Sediment and debris (litter, leaves, papers, cans, etc.) within the area and especially around the
drainage inlet will be collected and disposed of off-site per the City of Carlsbad Municipal Code.
1.2 Treatment Control BMPs
1.2.1 Hydro-Carbon Inserts Storm Water Filtration System. The operational and
maintenance needs of a Hydro-Carbon Inserts Storm Water Filtration System are:
• Removal of contaminants, sediments and debris from storm water runoff
• Absorption of petroleum hydrocarbons and oil-based products from storm water runoff
Inspection Frequency
• The Hydro-Carbon Inserts Storm Water Filtration System will be inspected on a monthly
basis as well as prior to the rainy season, October 15, and after the rainy season, April 15.
The frequency of inspection would be based on pollutant loading, amount of debris,
leaves, etc. and amount of runoff. If the monthly inspections reveal failure in the system,
inspections shall be increased to a weekly schedule. The manufacturer's
recommendations include no less than three inspections per year.
Inspection for the Hydro-Carbon Inserts
• ForHydrocarbon units with screens covering the adsorbent, the condition of the screen
will be checked and the adsorbent will be inspected through the screen. If excessive silt
covers the top of the adsorbent or if the adsorbent granules are more than one-half coated
with a dark gray or black substance, the adsorbent will be replaced.
• For Hydrocarbon units with adsorbent pouches, the condition of the pouches will be
checked and a visual inspection made of the enclosed adsorbent. If the granules are
covered, the pouches will be replaced.
Maintenance
Maintenance is required when the exposed adsorbent filter medium needs to be replaced.
To replace the filter medium, the steps are:
• To avoid spilling the exposed adsorbent filter medium into or onto the
surrounding surface, the person replacing the adsorbent should move away
from the inlet and work over a large work cloth.
• . All exposed adsorbent and collected debris must be dumped into a
D.O.T.-approved container for later disposal. The method of replacing the
adsorbent depends on the type of filter.
• For filters with removable filter cartridges, the cartridges need to be
removed from the filter, the end caps removed and the exposed material
poured out. The new adsorbent will be poured into the adsorbent
SDH\30387.000l\352523.l09/22/2006 E-2
4757
containment area to a level about 1 l/2 inches from the top screen when the
filter cartridge or filter is level.
• For filters with one-piece top screens, the entire filter needs to be removed
to the work area, the top screen removed and the exposed material poured
out. The new adsorbent will be poured into the adsorbent containment
area to a level about 1 1A inches from the top screen when the filter
cartridge or filter is level..
• For filters with adsorbent pouches, the pouches need to be removed and
disposed of. The new adsorbent pouches are snapped into place.
Disposal of Exposed Adsorbent. Debris and Trash
The exposed adsorbent, debris and trash that is general will be properly disposed of by
the Association.
• The exposed absorbent is .non-biodegradable, non-leaching and
non-carcinogenic so, with proper handling and documentation, it can be
disposed of at a landfill. However, because disposal regulations vary by
area, contact the local regulatory agency and landfill to ensure compliance
with local and state environmental regulations.
Hazardous Waste
Suspected hazardous wastes will be analyzed to determine disposal options. Hazardous
wastes generated onsite will be handled and disposed of according to applicable local, state and
federal regulations. A solid or liquid waste is considered a hazardous waste if it exceeds the
criteria listed in the CCR, Title 22, Article 11.
SDHV50387.000 IV352523.10 9/22/2006 E-3