HomeMy WebLinkAboutCT 84-14; TAMARACK POINTE; Tentative Map (CT)"• ;JsppUCMflOi1.
REQUEST
o Zone Change []Minor Redevelopitent Permit
OGeneral Plan Amendment []precise Developnent Plan*
Tenttive Tract Map []Specific Plan
Planned Unit Development OSite Development Plan
Major Condominium Permit 0 Conditional Use Permit
DMinor Condominium Permit []Variance
DMaster Plan []Planning Commission Determination
[]major Condominium conversion OSpecial Use Permit
OMajor Redevelopment Permit Dministrative Variance
(check other boxes if appropriate)
complete Description of Project (attach additional sheets if necessary)
The applicant proposes a PUD consisting of 77 Single Family detached units,
140 garden Homes, and 160 townhomes (condominium).
Location of Project
East of El Camino Real and North of Tamarack Avenue
Leal Description (complete)
that portion of Lots "E"k __l1 1fl11 rf R a4 cho Agua TIPaIDDOZI P P
#823, filed in the Office of the County Recorder on Nov. 16, 1896
Assessors Parcel Number
03-010-31
Existing Land Use —. Zone General Plan
R-1 RM &RLM Vacant! Agriculture
Proposed Zone Proposed General Plan Site Acreage
R-1 RIM & RLM 120±AC
Owner - Applicant —
Name (Print or Type) Name (Print or Type)
Virginia Robertson
Virginia Robertson, Trustee UDT 10/8/76 THE WOODWARD COMPANIES, INC.
Mailing Address Mai],ing Address
4656 El Camino Real 510OCampus Drive
and State zip Telephone City and State Zip Telephone
Newport Beach, CA 92660 955-2902 Carlsbad, CA 92008 729-2048
1 CF,1Rr1FY THAT I AM THE LEGAL OWNER AND I CERTIFY THAT I AM THE OWNER'S REPRESENTATIVE
THAT ALL TUE ABOVE INFORMATION IS T1LJE AND THAT ALL THE ABOVE IN JRMATION IS TRUE
AND CORRECT 10 TUE BEST OF MY KNOWLEDGE. AND CORRECT TO THE BEST OF MY KNOWLEDGE.
~1 ~p if G4TUR / / / DATE
Ila- ,pLi5c!Aec'dRQcCiVCaBy
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I.ULe ArffciOr13 tn:L Aind Case Nun /4'/ p I
If.f tar the information you have submitted has Deen reviewec, is eceL.-c
..thAt further information equired,you will be so ad d.
APPLICANT: THE WOOflWARD COMPANTS,
.Name (individual, partnership, joint venture, corporation, syndication)
5100 Caitlous Drive NewoQrt Bch, CA 92•0 --
Business Address . . . .
(714) 955-2902 . . .. . . . .::
• . .. •• Telephone Number . •. . ••. . .
• • AGENT: . . . .. ..
Name . • • . • .. .
- •:. . Business Address . .. : •. : . . :
• . : Telephone Number . :. 1:; . . •
: VrginiaRobetsoii 465& El Camino Real, Carlsb•CA
• ...... • Name (individual, partner, joint . Home Address • 92008
• . . venture, corporation, syndication)
Business Address . •. . .
729-2048
• Telephone Number Telephone Number
VirginiaRobertson/Trutee 4656 El Camino Real_,Carlsbad, QA
.• Iare ,.. . . •.. some Address 92008
• . • . .-- --___
Business Address • . . . . -
729-2048 •
. . .Telephone Number .. . - •• Te1ePne NUiEr
(Attach more sheets if necessary) .
1/We declare under penalty of perjury that the information contained in this dis-
closure is true and correct and that it will remain true and correct and may be
• . relied upon as being true and correct until amended.
7 Scott Woodward Agent
Applicant
BY
•
•
Aenc, 0:ner, Parnr \ •
•.'•:•' ) 0
0
STATEMENT OF AGREEMENT
TENTATIVE SUBDIVISION MAP
CITY OF CARLSBAD
The Subdivision Map Act and the Carlsbad Municipal Code sets a
fifty (50) day time restriction on Planning Commission processing
of Tentative Maps and a thirty (30) day time limit for City
Council action. These time limits can only be extended by the
mutual concurrence of the applicant and the City. By accepting
applications for Tentative Maps concurrently with applications
for other approvals which are prerequisites to the map; i.e.,
Environmental Assessment, Environmental Impact Report, Condominium
Plan, Planned Unit Development, etc., the fifty (50) day time
limits and the thirty (30) day time limits are often exceeded.
If you wish to have your application processed concurrently,
this agreement must be signed by the applicant or his agent. If
you choose not to sign the statement, the City will not accept
your application for the Tentative Map until all prior necessary
entitlements have been processed and approved.
The undersigned understands that the processing time required by
the City may exceed the time limits, therefore the undersigned
agrees to extend the time limits for Planning Commission and
City Council action and fully concurs with any extensions of
time up to one year from the date the application was accepted
as complete to properly review all of the applications.
/ $tI Ee
Scott E. Woodward Agent
Name (Print) Relationship to Application
(Property Owner-Agent)
corporate
or syn-
.•& 4,
S -
APPLICANT DISCLOSURE FORM
In order to assist the members of the Planning Commission and
City Council to avoid possible conflicts of interest, all áppli-
cants are required to complete this disclosure form at the time
of submitting their application. When this form has been com-
pleted and signed, the information will be relied upon by them in
determining if a conflict may exist, so please ensure that all of
the information 4.s completed and accurate. If at anytime before
a final action on your application has been rendered, any of the
information required by this disclosure changes, an amendment
reflecting this change must be filed.
If the applicant is an individual, or a partnership (either gen-
eral or limited) or a joint venture, please state the full name,
address and phone number of each person or individual (including
trusts) who own any beneficial interest in the property which is
the subject of this application. Should one or more parties to
the application be a partnership or joint venture, then please
state the full legal name of the partnership or joint venture,
its legal address and the name and address of each individual
person who is a general and/or limited partner or member of the
joint venture. -
Should one or more of the parties be a privately held corporation
(10 shareholders or less) or a real estate syndication, then
please state the state of incorporation or syndication,
number, date of incorporation or syndication, corporate
dicate address, and the full names and addresses of each
individual shareholder or syndicate member. Should the
ation be a publically held corporation, then state the f
and addresC of the corporation, the place of its incorpo
number of shareholders, and the name and address of the
of the corporation. -
Should you feel that additional information needs to be
in order to provide a full disclosure, please include it
TAMARACK POIN1IE C. T. 84_0 P. D. 69
SUPPLEMAL INMRMATION FORM
Request - to eliminate the requirement for sidewalk along Tamarack Avenue along the
Tamarack Pointe frontage.
1) Gross Acres (or square footage, if less than acre) 120± AC
2) Zone R-1
3) General Plan Land Use Designation 11v10-4 DU/AC
4) By law a variance may be approved only if certain facts are found to exist.
Please read these requirements carefully and explain 1i the proposed
project meets each of these facts • Use add.itiaial sets if necessary.
a) Explain why tlre are excepticnal or extraordinary circutstances or
oiditiais applicable to the property or to the ntended use that do not
apply generally to tire other property r class of use in the same vicinity
and zaie: Because of the lack of potential development to the north of project,'
a sidewalk would not provide for any pedestrian traffic. :There currently
exists sidewalk on the south side of Tamarack Avenue.
b) Explain why such variance, is necessary for the preservation and
enjoyment of a substantial property right possessed by otter property in
the same vicinity and zaie but which is denied to the property in questiai:
Requiring the applicant to build a sidewalk is unnecessary because of the
existina sidewalk on the south side of Tamarack Avenue and it would not pro-
vide a link to any develo'rxnent to the north.
c) Explain why the granting of such variance will not be materially
detrimental to the public selfare or injurious to the property or
iiroveents in such vicinity and zone in which the property is located
There currently exists sidewalk fran El Camino Real to Calavera Hills
on the south side of Tamarack Avenue. There are adequate safe places - -
d) Explain why the granting of such variance will, not adversely affect the
ccresive general plan: Pedestrian circulation will not be interrupted
because of the existing sidewalk on the south side ot Tamarack Avenue that
is easily accessable.
J#7804 I
13 N.
First American Title Insurance Company
411 IVY STREET, (P.O. BOX 808) SAN DIEGO, CALIFORNIA 92101 • (619) 238-1776
December 19, 1983
January 25, 1984 Amended
FIRST AMERICAN TITLE INSURANCE COMPANY
Escrow Department
Attn: Deborah Welsch'
BUYER: WOODWARD, Don E./PROJECT NAME: TAMARACK POINT
Your No. D-874806
Our Order No. 874806-2
RICK ENG.
Date Received
2 61984
In response to the above referenced application for a policy of title insurance,
this Company hereby reports that it is prepared to issue, or cause to be issued,
as of the date hereof, a Policy or Policies of Title Insurance describing the
land and the estate or interest therein hereinafter set forth, insuring against
loss which may be sustained by reason of any defect, lien or encumbrance not
shown - or referred to as an Exception below or not excluded from coverage
pursuant to the printed Schedules, Conditions and Stipulations of said policy
forms. The printed Exceptions and Exclusions from the coverage of said Policy
or Policies are set forth in Exhibit A attached. Copies of the Policy forms
should be read. They are available from the office which issued this report.
This report (and any supplements or amendments hereto) is issued solely for the
purpose of facilitating the issuance of a policy of title insurance and no
liability is assumed hereby. If it is desired that liability be assumed prior
to the issuance of a policy of title insurance, a Binder or Commitment should'be
requested. )9/
Dated as of January 24, 1984 at 7:30 a.m.
GERALD A. McDANIEL/smTITLE OFFICER
BILL FOSTER
The form of policy title insurance contemplated by this report is:
Title to said estate or interest at the date hereof is vested in:
VIRGINIA ROBERTSON, as to an undivided one-half interest; and VIRGINIA K.
ROBERTSON, Trustee under Declaration of Trust dated October 8, 1976, as to an
undivided 1/2 interest
The estate or interest in the land hereinafter described or referred to covered
by this Report is:
FEE
The land referred to herein is described as follows:
SEE LEGAL DESCRIPTION ATTACHED
At the date hereof exceptions to coverage in addition to the printed exceptions -
and exclusions contained in said policy form would be as follows:
SEE FOLLOWING PAGES ATTACHED nt
•0
O1flL( L40. 87/4806-2
PAGE NO. 2
At the date hereof exceptions to coverage in addition to the printed
exceptions and exclusions contained in said policy form would be as follows:
1. Second Installment, General and Special taxes for the fiscal year 1983-84.
2. The lien of sup'lemental taxes assessed pursuant to Chapter 498, Statutes
of 1983 of the State of California.
3. An easement and right of way for public road purposes over and across Road
Survey No. 682 according to Map on file in the Office of the County
Surveyor, and as granted to the County of San Diego by Deed recorded June
12, 1936 in Book 521, page 230 as File No. 33744 of Official Records.
Said instrument also grants the privilege and right to extend and maintain
drainage structures and excavation and embankment slopes beyond the limits
of said right of way where required for the construction and maintenance
thereof.
4. An easement and right of way 75 feet in wid h over a portion of the herein
described property for a line of poles a -i steel towers and incidental
purposes as granted to San Diego Gas & E1e tric Company, in an instrument
recorded June 1, 1953 in Book 4874, page 148 as File No. 74512 of Official
Records.
5. An easement and right of way 75.00 feet in width over a portion of the
herein described property for a line of poles and/or steel towers as
granted to San Diego Gas & Electric Company in an instrument recorded June
19, 1966 as File No. 98887 of Official Records.
6. The privilege and right to extend drainage structures and excavation and
embankment slopes beyond the limits of Roan Survey 1800-1 where required
for the construction and maintenance of said public highway as reserved
and granted in Deed recorded March 12, 1970 as File No. 44687 of Official
Records.
Reference is made to said instrument for further particulars.
7. An easement for drainage and incidental purposes in favor of the City of
Carlsbad, recorded July 2, 1974 as File No. 74-177855 of Official Records.
Reference is made to said instrument for fur her particulars.
8. An Agreement regarding public facilities fee, dated June 15, 1981, upon
the terms, covenants, and conditions contained therein.
EXECUTED BY AND BETWEEN: DON E. WOODWARD dba THE WOODWARD COMPANY, ELSIE
M. KELLY AND VIRGINIA ROBERTSON, and THE CITY OF CARLSBAD.
RECORDED: August 12, 1981 as File No. 81-256423 of Official Records.
9. Said land is also shown on Record of Survey Map No. 8927 filed in the
Office of the County Recorder of San Diego County.
-ORDER NO. 874806-2
PAGE NO. 3
10. An easement and right of way to facilitate public access, utility
easements, storm drainage control and land use and necessary appurtenances
as disclosed by Final Order of Condemnation dated February 2, 1982 and
recorded February 11, 1982 as File No. 82-038531 of Official Records.
11. A Certificate of Compliance affecting ti e herein described property has
been recorded March 19, 1982 as File No. 2-075418 of Official Records.
12. A financing statement filed in the Office of the County Recorder showing:-
Debtor: RAUL AND MARIA SANCHEZ
Secured Party: SOUTHWEST CALIFORNIA PRODUCTION CREDIT ASSOCIATION
Date: April 13, 1982
File No.: 82-102059 of Official Records.
Property Covered: Property containing 298.69 acres, more or less,
located at 4656 El Camino Real, Carlsbad, California,
more particularly described as Lots "E' and "I" of
RANCHO AGUA HEDIONDA, according to Map thereof No.
823, filed in the Office of the County Recorder of
said County.
13. A financing statement filed in the Office of the County Recorder, .showing:
Debtor: FRANCISCO VALDIVIA
Secured Party: SOUTHLAND PRODUCE CO. dba KEYSTONE PRODUCE CO.
Date: September 14, 1982
File No.: 82-284391 of Official Records -
Property Covered: portion of Lot 'E"-Rancho Agua Hedionda consisting of
approximately 63 acres.
14. An easement to erect, construct, reconstruct, replace, repair, maintain
and use a pipeline or pipelines for any and all purposes, together with
their necessary fixtures and appurtenances, including but not limited to,
conduits, and cables for power transmission and communication purposes and
incidental purposes in favor of Costa Real Municipal Water District, its
successors and assigns, recorded September 15, 1982 as File No. 82-285342
of Official Records, described as follows:
A strip of land 10.00 feet in width, lying 5.00 feet on each side and
parallel with the following described centerline:
Beginning at the Southwest corner of Carlsbad Tract No. 76-12 according to
Map No. 9935, on file in the Office of the County Recorder of said County
on December 16, 1980; thence North 00 °34 1 50 East along the West line of
said Map No. 9935, 809.80 feet to the centerline of Tamarack Avenue;
thence along said centerline South 21 °12'30 West, 74.71 feet; thence
leaving said centerline North 68 °47'30" West, 42.00 feet to the Westerly
right-of-way line of Tamarack Avenue; thence along said centerline North
68 °47'30" West, 22.42 feet; thence North 14 °02'49" East, 201.99 feet to
the beginning of a tangent curve concave Westerly having a 250.00 foot
radius; thence in a Northerly direction along said curve through a central
,ORDER NO. 874806-216 'PAGE NO. 4
angle of 3 °26'23" a length of 15.01 feet to the TRUE POINT OF BEGINNING of
Parcel 'B', said point having a radial line that bears South 79 °23'34"
East; thence continuing along said curve and said centerline of a 10-foot
wide strip of land through a central angle of 10 °20'33" a length of 45.13
feet; thence North 0015'53" East, 120.97 feet; thence North 44 °44'07"
West, 60.00 feet to the terminus of said centerline of Parcel 'B".
The sidelines pf said 10-foot wide strip of land shall be extended or
shortened to meet at the angle point and on a line at the TRUE POINT OF
BEGINNING which bears North 89 °25'10" West.
Reference is made to said instrument for further particulars.
15. The terms, covenants, an provisions of the Trust Agreement referred to in
the vesting herein, ani the effect of any failure to comply with such
terms, covenants, and pi visions.
16. The effect of documents, proceedings, liens, decrees or other matters
which do not specifically describe said land, but which may affect the
title or impose liens or encumbrances thereon. The name search necessary
to ascertain the existence of such matters has not been completed and we
- will require a Statement Of Information from DON E. WOODWARD.
1983-84 TAX INFORMATION:
CODE AREA:
PARCEL NO.:
1ST INSTALLMENT:
2ND INSTALLMENT:
LAND VALUE:
IMPROVEMENTS:
EXEMPT:
09107
208-010-31
$3,505.12-PAID
$3,505.12 PAID
$616,085.00
$-O-
$-O-
0 0
LEGAL DESCRIPTION
ORDER NO. 874806-2
The land referred to herein is situated in the State of California, County of
San Diego, and is described as follows:
All that portion of Lots "E" and "I" of RANCHO AGUA HEDIONDA, in the County of
San Diego, State of California, according to Partition Map thereof No. 823,
filed in the Office of the County Recorder of said County, November 16, 1896,
described as follows:
Beginning at the Southwest corner of CARLSBAD TRACT NO. 76-12 according to Map
thereof No. 9935, filed in the Office of the County Recorder of San Diego
County, December 16, 1980; thence North 00 0 34 1 50 East along the West line of
said Map 9935., 929.02 feet to the TRUE POINT OF BEGINNING; Thence, North
00 0 34 1 50 East 164.79 feet to a point on the North line of Lot "E" of said Map
No. 823; thence, North 89 0 25 1 10" West along the North line of said Lot "E"
617.25 feet; thence continuing along the North line of Lot 'E" and the North
line of Lot ,'I" of said Map No. 823 North 89 °22'43" West 2873.31 feet to a
point which bears South 89 °24'24" East 76.07 feet, (South 89 °50'00" East 75.51
feet record) from the Southeast corner of EL CANINO MESA UNIT NO. 6, ACCORDING
TO MAP THEREOF No. 6988, filed in the Office of the County Recorder of San
Diego County, July 15, 1971; said point also being the Northeasterly corner of
that 75.00 foOt easement described in Deed to the San Diego Gas and Electric
Company, recorded June 16, 1966 as File No. 98887 of Official Records; thence
along the Easterly and Northeasterly boundary of said easement; South 6 °0354"
East 18.06 feet (South 6 °29'30" East 18.06 feet record); thence South
25041?48 East 1940.43 feet, (South 26°07 1 24" East. 1940.23 feet record);
thence leaving said easement South 24 °00'43' West 252.97 feet, (South
23°34'23" West 253.69 feet record) to the beginning of a tangent 600.00 foot
radius curve concave Easterly with a central angle of 18 °10'48" (18 °10 1 23"
record); thence, Southerly along the arc of said curve 190.38 feet (190.31
feet record); thence South 5 °4955" East 113.39 feet, (South 5 024 1 00" West
113.03 feet record) to the beginning of a tangent 600.00 foot radius curve
concave Northwesterly with a central angle of 24 °02'17, (24 °03'05" record);
thence Southerly along the arc of said curve 251.72 feet, (251.87 feet
record); thence Sputh 29 °52'12" West, (South 29 °27'05" West record) 58.94 feet
to a point on the arc of a 1000.00 foot radius curve concave Southeasterly; a
radial line to said point bears North 60007 '48" West; said point also being a
point on the centerline of Tamarack Avenue at Engineers Station 1+27.14 as
shown on Engineers Drawing No. U.Y. 1856 consisting of 8 sheets on file in the
Office of the San Diego County, Department of Transportation; thence
continuing along said centerline the following courses; thence Northeasterly
along the arc of said 1000.00 foot radius curve through a central angle of
59 °08'48' a distance of 1032.30 feet; thence, North 89 °01 1 00" East 238.63 feet
to the beginning of a tangent 1000.00 foot radius curve concave Northwesterly
with a central angle of 33 °37'00"; thence, Easterly along the arc of said
curve 586.72 feet; thence, North 55 °24 1 00" East 548.20 feet, to the beginning
of a tangent 1000.00 foot radius curve concave Northwesterly with a central
angle of 16 0 57 1 00'; thence, Northeasterly along the arc of said curve 295.83
o e
LEGAL DESCRIPTION
ORDER NO. 874806-2
feet; thence, North 38 °27'00" East 316.85 feet to the beginning of a tangent
1000.00 foot radius curve concave Northwesterly with a central angle of
17 °14'30"; thence, Northeasterly along the arc of said curve 300.92 feet;
thence, North 21 °12'30" East 726.05 feet to the TRUE POINT OF BEGINNING.
mw/ bp
RECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO: )
)
CITY OF CARLSBAD )
1200 Elm Avenue )
Carlsbad, California 92008 )
Space above this line for Recorder's use
Documentary transfer tax: $ No fee
Signature of declarant determining
tax-firm name
City of Carlsbad
Parcel No. 2 f- O/7
AGREEMENT BETWEEN OWNER, DEVELOPER
AND THE CITY OF CARLSBAD FOR THE
PAYMENTOFAPUBLICFACILITIESFEE
THIS AGREEMENT is entered into this 20thday of March 1984
by and between
THE WOODWARD COMPANIES ,INC.
(Name of Developer)
a California _corporation_, hereinafter referred to as
(Corporation, partnership, etc.)
"Developer" whose address is
5100 Campus Drive
(Street)
Newport Beach, CAlifornia 92660
(City, State, Zip Code)
and Virginia Robertson &Virgin±a K. Robertson, Trustee, UDT 10/8/76 -
Name of Legal Owner
aIndividuals _, hereinafter referred to as
(Corporation, etc. )
"Owner" whose address is
4656 El Camino Real
(Street)
Carlsbad, CA 92008
(City, State, Zip Code)
AND
the CITY OF CARLSBAD, a municipal corporation of the State of California,
hereinafter referred tot as "City", whose address is 1200 Elm Avenue,
Carlsbad, California, 92008.
Po e
RECITALS
WHEREAS, Owner is the owner of the real property described on
Exhibit "A", attached to and made a part of this agreement, and
hereinafter referred to as "Property"; and
WHEREAS, the Property lies within the boundaries of City; and
WHEREAS, Developer has contracted with Owner to purchase the
Property and proposes a development project as follows: a PUD consistinq
of 77 Sincle Family detached units, 140 garden homes, and 160 Townhomes.
(conctominium.)
on said Property, which development carries the proposed name of
Tamarack Pointe
and is hereinafter referred to as "Development"; and
WHEREAS, Developer filed on the day of
19 , with the City a request for a Tentative Map, Planned
Unit Development, and a Condo Permit
hereinafter referred to as "Request"; and
WHEREAS, the Public Facilities Element of the City General Plan
requires that the City Council find that all public facilities
necessary to serve a development will be available concurrent with
need or such development shall not be approved (said element is on
file with the City Clerk and incorporated by this reference); and
WHEREAS, Developer, Owner and City recognize the correctness of
Council Policy No. 17 dated April 2, 1982, on file with the -City
Clerk and incorporated by this reference, and that the City's public
facilities and services are at capacity and will not be available to
accommodate the additional need for public facilities and services
resulting from the proposed Development; and
-2-
PFU LL-9-99
• . WHEREAS, Developer and Owner have asked the City to find that
public facilities and services will be available to meet the future
needs of the Development as it is presently proposed; but the
Developer and Owner are aware that the City cannot and will not be
able to make any such findings without financial assistance to pay
for such services and facilities; and, therefore, Developer and
Owner propose to help satisfy the General Plan as implemented by
Council Policy No. 17 by payment of a public facilities fee.
NOW, THEREFORE, in consideration of the recitals and the
covenants contained herein, the parties agree as follows:
1. The Developer and Owner shall pay to the City a public
• facilities fee in an amount not to exceed 2% of the building permit
valuation of the building or structures to be constructed in the
Development pursuant to the Request. The fee shall be pa . id prior to
the issuance of building or other construction permits for the
development and shall be based on the valuation at that time. This
fee shall be in addition to any fees, dedications or improvements
required pursuant to Titles 18, 20 or 21 of the Carlsbad Municipal
Code. Developer and Owner shall pay a fee for conversion of existing
building or structures into condominiums in an amount not to exceed 2%
of the building permit valuation at the time of conversion. The fee
for a condominium conversionshall be paid prior to the issuance of a
condominium conversion permit as provided in Chapter 21.47 of the
Carlsbad Municipal Code. Condominium shall include community
apartment or stock cooperative. The terms "other construction
permits", "other construction permit" and "entitlement for use" as
used in this agreement, except in reference to mobilehotne sites or
-3-
REV 4-2-82
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projects, shall not refer to grading permits or other permits for the
construction of i..nderground or .street improvements unless no other
permit is necessary prior to the use or occupancy for which the
development is intended. Developer and Owner shall pay to City a
public facilities fee in the sum of $1,150 for each mobilehome space
to be constructed pursuant to the Request. The' fee shall' be paid
prior to the issuance of building or other construction permits for
the development. This fee shall be in addition to any fees,
dedications or improvements required according to Titles 18, 20 or 21
of the Carlsbad Municipal Code.
2. The Developer and Owner may offer to donate a site or sites
for public facilities in lieu of all or part of the financial
obligation agreed upon in Paragraph 1 above. If Developer and Owner
offers to donate a site or sites for public facilities., the City shall
consider, but is not obligated to accept the offer. The time for
do,,nation and amount of credit against the fee shall be determined by
City prior to the issuance of any building or other permits. Such
determination, when made, shall become a part of this agreement.
Sites donated under this paragraph shall not include improvements
required pursuant to Titles 18 or 20 of the Carlsbad Municipal Code.
3. This agreement and the fee paid pursuant hereto are required
to ensure the consistency of the Development with the City's General
Plan. 'If the, fee is not paid as provided herein, the City will not
have the funds to provide public facilities and services, and the
development will not be consistent with the General Plan and any
approval or permit for the Development shall be void. No building or
other construction permit or entitlement for use shall be issued
until the public facilities fee required by this agreement is paid.
-4-
.
4. City agrees to deposit the fees paid pursuant to this
agreement 'in a public facilities fund for the financing of public
facilities, when the City Council determines the need exists to
provide the facilties and sufficient' funds from the payment of this
and similar public facilities fees are available.
5. City agrees to provide upon request reasonable assurances to
enable Developer and Owner to comply with any requirements of other
public agencies as evidence of adequate public facilities and services
sufficient to accommodate the needs of the Development herein
described.
6. All obligations hereunder shall terminate in the event the
Requests made by Developer are not approved.
7. Any notice from one party to the other shall be in writing,
and shall be dated and signed by the party giving such notice or by a
duly authorized representative of such party. Any such notice shall
not be effective for any purpose whatsoever unless served in one of
the following manners:
7.1 If notice is given to the City of personal delivery
thereof, to the City or by depositing same in the United States Mail,
addressed to the City at the address set forth herein, enclosed in a
sealed envelope, addressed to the City for attention of the City
Manager, postage prepaid and certified.
7.2 If notice is given to Developer by personal delivery
thereof to Developer or by depositing the same in the United States
Mail, enclosed in a sealed envelope, addressed to Developer at the
address as may have been designated, postage prepaid and certified.
4 -5-
REV 4-2-82
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.
8. This agreement shall be binding upon and shall inure to the
benefit of, and shall apply to, the respective successors and assigns
of Developer, Owner and the City, arid- references to Developer, Owner
or City herein shall be deemed to be teference to and include their
respective successors and assigns without specific mention of such
successors and assigns. If Developer should cease to have any
interest in the Property, all obligations of Developer hereunder
shall terminate; provided, however,, that any successor of Developer's
interest in the property shall have first assumed in writing the
Developer's obligations hereunder.
At such time as Owner ceases to have any interest in the
Property, all obligations of Owner hereunder shall terminate;
provided, however, that if any successor to the Owner's interest in
the Property is a stranger to this agreement, such successor has first
assumed the obligations of owner in writing in a form acceptable to
City.
9. This agreement shall be recorded but shall not create a lien
or security interest on the Property. When the obligations of this
agreement have been satisfied, City shall record a release.
I/I
I/I
I/I
I/I
-6-
IN WITNESS WHEREOF, this agreement is executed in San Diego
County, California as of the date first written above.
OWNER:,. DEVELOPER:
L
Viinia Robertson - - THE WOODWARD COMPANIES, INC.
• Virginia K. Robertson, Trustee,
10/8/76 ;_
TITLE Vice President
BY
CAT. NO. NN00627
TO 1944 CA (7-82)
(Individual)
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO SS.
gey TITLE INSURANCE
AND TRUST
A11COR COMPANY
cipal
On March21,1984 before me, the undersigned, a Notary Public in and for
said State, personally appeared VirginiaK. Robertson, Trustee
personally known to me or
proved to me on the basis of satisfactory evidence to be
the person_ whose name __________ subscribed to the
____
OFFICIAL SEAL within instrument and acknowledged that _______ exe-
RICKI GM C1.AVtER cuted the same. - NOTARY PUBLIC CALIFORNIA WITNESS my hand and official seal.
j:
DI COUNTY
Co
Femy mtn. expiresSEP26,1986
Signature &CLA _ae
(This area for official notarial seal)
I— c a 0
a E
co CL uE
—0
0 0 a) CU
STATE OF CALIFORNIA ORANGE ISS. COUNTY OF_
onM.cIiQ,.194 . before me, the undersigned, a Notary Public in and for
said State, personally appeared.. _______
Scott E. Woodward
personally known to me (or proved to me on the
basis of satisfactory evidence) to be the persons who executed the within instrument as _-
Vice President and_Secretary, on behalf of
R must be
0 0 cc
the corporation therein named, and acknowledged to me that
such corporation executed thewithin instrument pursuant to its
by-laws or a resolution of its board of directors.
WITFJES5 my hand and official seal.
Signature
Rosemarie LUhn
I OFFICIAL SEAL
ROSEMARIE LUNDBERGrnj'rz r,orARypuBLic-cAUF0RNIA
I
Tv
RANGE GOUNiY
- Mjcomm a oi Cs MAY 31, 1985
(This area for official notarial seal)
0
IN WITNESS WHEREOF, this agreement is executed in San Diego
County, Ca'lifornia as of the date first written above.
OWNER:. DEVELOPER:
Virginia Robertson THE OODWARD COMPANIES, IN
Virginia K. Robertson, Trustee,
JDT 10/8/76 t &tXIL BY
TITLE Vice President
CAT. NO. NN00627
TO 1944 CA (7-82)
BY
(
_TITLE INSURANCE
AND TRUST
AflCOR COMPANY
' (Individual)
STATE OF CALIFORNIA I COUNTY OF SAN DIEGO
cipal
21, 1984 before me, the undersigned, a Notary Public in and for On March
said State, personally appeared Virginia Robertson
personally known to me or
Id proved to me on the basis of satisfactory evidence to be
the person— whose name_________ subscribed to the OF1CTAL SEAL
within instrument and acknowledged that ______ exe-
p
cuted the same.
V WITNESS my hand and official seal.
Signature 'C (i4 )J 1J v-r CeczA.ra.-
(This area for official notarial seal)
R must be
STATE OFCALIFORNIA ORANGE SS.
On_ March-20, 1984
COUNTY OF
before me, the undersigned, a Notary Public in and for
said State, personally appeared ._änd Scott E. Woodward —.-----_-___.__
personally known to me (Or proved to me on the
basis of satisfactory evidence) to be the persons who executed the within instrument Vice President and _Secretary, on behalf of
the corporation therein named, and acknowledged to me that
such corporation executed thewithin instrument pursuantto its
by-laws or a resolution of its board of directors. -
WITrJESS my hand and official seal.
Signatur .7 ,.
Rosemarie Lundberg
OFFICIAL SEAL
OtAY PUBLIC - CALIFORNIA
, ORANGE GOUNTY
My comm. C~Tircs MAY 31, 1985
(This area for official notarial seal)
EXHIBIT 't A"
LEGAL DESCRIPTION
All that portion of Lots "E" and "I of RANCHO AGUE HEDIONDA,
in the County of San Diego, State of California,according
to Partition Map thereof No. 823, filed in the office of the
County Recorder of said County, November 16, 1896.
.
PLNC. F,:
CITY OF CARLSBAD
1200 ELM AVENUE • CARLSBAD, CALIFORNIA 92008
438-5551
RECEIVED FROM (C DATE
-
A/c. NO. DESCRIPTION AMOUNT
FOS .9
E /7:5
/•
(I mu Mgt,
rill
\•_ tcL:F 5'/
496 TOTAL ow
L44G F1 LC-,
CT q-t
CITY 01 JARLSBAD
1200 ELM AVENUE • CARLSBAD, CALIFORNIA 92008
4385551
Q -
14411
t -
37812
TOTALW
-
)
ADDRESS
A/c. NO. DESCRIPTION AMOUNT
V
'4
LETTER OF AGREEMENT
The Woodward Company hereby agrees to pay the City of Carlsbad
$175 per month for the maintenance of landscaping improvement to Lot A
of CT84-14. The agreement shall be in affect until such time as the
Carlsbad Parks and Recreation Department is notified that the homeowners
association has assumed the maintenance of the subject property.
The effective date of this agreement is February 1, 1985. The City
will bill the Woodward Company on a monthly basis for this service.
TOS CITY COMCJLj) Either party has the right to terminate this agreement with 30-day
written notice.
PARKS AND RECREATION DIRECTOR
0940) WINE
1200 ELM AVENUE
CARLSBAD, CA 92008-1989
V- CAri
4. 4I
RECEIVED FEB 8 98
TELEPHONE
(619) 438-5571
QIitp of Cartdab
PARKS & RECREATION DEPARTMENT
February 7, 1985
Mr. James K. Montgomery
The Woodward Companies, Inc.
5100 Campus Drive
Newport Beach, CA 92660-2198
This is to confirm our phone conversation of 2/4/85.
We discussed the following items pertaining to Lot A of CT84-14 located
near the intersection of Tamarack and La Portalada Street.
1) The Woodward Company will incorporate both sections of Lot A into
the landscape maintenance agreement of the Homeowners Association
CC&R.
The landscape maintenance of both sections of Lot A shall be appro-
priately spelled out in the CC&Rs and shall be approved by the City
Council (as per condition 56, CT84-14). Included with the CC&R will
be a statement guaranteeing that both sections of Lot A will be
maintained to a clean, neat, weed-free appearance.
2) The Woodward Company will landscape the eastern portion of Lot A
to the approval of the Parks and Recreation Director, prior to
Final Map approval, as spelled out in condition 55, CT84-14.
3) A third subject discussed was the maintenance of the subject two
acres of Lot A until such time as units are built, occupied and a
homeowners association is established. City staff will continue to
provide water and all necessary maintenance, and Woodward would be
billed monthly for this service.
Attached is the agreement. Thank you for your cooperation in this
matter.
Doug J. Duncanson
DJD:vf
Attachment
c. City Manager
City Attorney
• PI-N6.
CITY OF C. LSBAD
1200 ELM AVENUE • CARLSBAD, CALIFORNIA 92008
438-5551
RECEIVED FRO R( 1(ID 57/1/84
A rrDC
A/C. NO. DESCRIPTION AMOUNT
_ '17181.9 -
/ f t...
<
\W
3)18O TOTAL _7rc,w H
.
iii
City of Carlsbad MISCELLANEOtf- :r T
1200 ELM, CARLSBAD, CA 92008 • TEL. (619) 438-5525 RECEIPT
Job MISCELLANE Address Tamarack & El Camino Real
E
E
E
* PLAN CH
VALUATION
DEMOLITIO
HOUSE MO
Owner
Tamarack Pointe Venture
Mailing
Address 5100 Campus Drive
City
Newport Beach
I Zip
192660
Tel.
(714)955-2902
Contractor
The Woodward Companies, Inc.
. PARKS AND Address
5100 Campus Drive El PUBLIC FA( City Zip Tel.
Newport Beach I 92660 I (714)955-2902 SCHOOL FE State Lic. City
S Classif. B 307446 Lic. No. 13147 Carlsbad
COMPLETE FOR PLAN CHECK ONLY Encinitas
San Diego
LEGAL DESCFPTION CT 84-14 L San Marc i
OUS FEE RECEIPT
ECK FEE 01-00-00-8806
N___________________________________
VING
RECREATION FEE_________________
ILITIES FEE
- DISTRICT
CERTIFICATE OF OCCUPANCY__..._.__
[11
TOTA FEE S( _tD
WARNING. PLAN CHECK FEES. WHERE NO ACTION 11, TAKEN BY THE
APPLICANT IN 180 DAYS AND NO BUILDING PE1MII IS ISSUED. ARE
FORFEITED TO THE CITY.
COMMENTS:
ASSESSO'iE PA:-.-El NO
DESCRIPTION OF WORK
PLAN ID NO.
DESIGNER ADDRESS 111
PHONE (714) 532-5467
CONTACT PERSON M ci lip
Sigiature of /13/84
White - Applicant Yellow - File Pink - (1) Finance (2) Data Process Gold - Assessor
• - IZL
U'.) NO-, rtCLz4-)AV t_) y vrwr c-\_j
c ry1/ \j
/ 23rV - rJ ¶y •4 -vcI r4v C\ r(
t -, --j i->' j V 9WN C"
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0v
-vrY
CI
'} I ry ' (1)
(Vj 1/ 1J'I
Q 9
1J AMMISPEC
HOME INSPECTION SERVICE
March 5, 1997
RE: 4381 Pavlov Avenue, San Diego
Inspection #03968152
I, Matthew Bpoçe, have agreed to accept $150.00 from Jess Alvarez, dba AmeriSpec
Inspection Service, as full reimbursement for repairs to the roof of the home I
purchased at the above referenced address March 5, 1996.
In return for this payment, I agree to absolve and release Jess Alvarez, dba
AmeriSpec Inspection Service, of any further claim or legal action concerning this
property.
•1
2' /
Matthew Booker
Amerispec Inspection Service
11722 Sorrento Valley Road, Suite G San Diego, California 92121
Office: 6192591033 Fax: 6192592605
Each company independently owned and operated.
7121 AMERISPEC Ill COSTA REAL HOME INSPECTION
N Im
ET,. Fe -~' Wall
259-1033 LJ'L _LLJ
11722 SORRENTO VALLEY ROAD, SUITE G r SAN DIEGO, CA 92121 SAL. FORD
THIS I
CHECK I
BALANCE I r DEPOSIT I MISSION FEDERAL CREDIT UNION SAL r P.O. BOX 261209 SAN DIEGO, CA 92126-0990 FORD
OOLS I,?L''i' ?12L .
L
I
4.,
jj .AMM*SPEC ®
HOME INSPECTION SERVICE
March 5, 1997
Matthew Booker
4381 Pavlov Avenue
San Diego, CA 92122
RE: 4381 Pavlov Avenue, San Diego
Inspection #03968152
Dear Matt:
As per our phone conversation of a week ago, enclosed is a general release form for a
partial refund of the inspection fee we received from you in May, 1996.
Please sign and return this release form and I will send a check by return mail.
Regards,
Jess Alvarez
Owner
Was
Amerispec Inspection Service
11722 Sorrento Valley Road, Suite G San Diego, California 92121
Office: 6192591033 Fax: 6192592605
Each company independently owned and operated.
(1 AIERISPEC®
HOME lNSPECIION SERVICE
March 5, 1997
RE: 4381 Pavlov Avenue, San Diego
Inspection #03968152
I, Matthew Booker, have agreed to accept $150.00 from Jess Alvarez, dba AmeriSpec
Inspection Service, as full reimbursement for repairs to the roof of the home I
purchased at the above referenced address March 5, 1996.
In return for this payment, I agree to absolve and release Jess Alvarez, dba
AmeriSpec Inspection Service, of any further claim or legal action concerning this
property.
Matthew Booker
Amerispec Inspection Service
11722 Sorrento Valley Road, Suite G San Diego, California 92121
Office: 6192591033 Fax: 6192592605
Each company independently owned and operated.
I
CSNO.: 8 DATE REXEDIED:_____________
?0PLJC7 1 if..L--- L
)JEST: e0lp
R d c ,f fl/0
INVIRONMENTAL `J
1T OR EXCEPTED:___________________________
Posted: Prior Cliance:____
Filed:
NEGATIVE DECLARATION:
Published:______
Filed:
Posted: (0-1- Published: _- Notice of Determination:
ENVIRONdMM IT REPORT:___________
Notice of Notice of Notice of
Preparation:5-/o-4 Canpietion: Determination:
PLANNING COMMISSION
1. Date of Hearing: - /3
2. Publication:_____________________
3. Notice to Property Ciners:
4. Resolution No. c9190
(Continued to:__________________________
5. Appeal:
CITY COUNCIL
1. Date of Hearing: I-.3 -
2. Notices to City Clerk: to-
3. Agenda Bill:______________________________
4. Resolution No. Date:
5. Ordinance No. Date:
Staff Report to Applicant:____________________
Resolution to Applicant:_____________________
ACTION:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
9 Commonwealth
MEMO:
4 cJ
L4 t o
boo bLK
- 3:3
—JL&o
-
4 -Ld Aol C-0
n
S PzNc.
ARTICLES OF INCORPORATION
TAMARACK POINTE MASTER ASSOCIATION
FIRST: The name of this corporation is TAMARACK
POINTE MASTER ASSOCIATION.
SECOND: This corporation is a nonprofit mutual
benefit corporation organized under the Nonprofit Mutual
Benefit Corporation Law. The purpose of this corporation
is to engage in any lawful act or activity for which a
corporation may be organized under such law.
THIRD: The specific and primary purposes for
which this corporation is formed are to provide for the
maintenance, preservation and architectural control of a
detached single family housing Project located in the City
of Carlsbad, County of San Diego, State of California.
FOURTH: The name and business address in the
State of California of this corporation's initial agent
for service of process is:
Scott E. Woodward
The Woodward Companies
5100 Campus Drive
Newport Beach, California 92660
FIFTH: The number and manner in which directors
shall be chosen and removed from office, their qualifications,
powers, duties, compensation, and tenure of office, the manner
of filling vacancies on the board, and the manner of calling
and holding meetings of directors, shall be as stated in the
Bylaws.
SIXTH: The authorized number, if any, and qualifica-
tions of members of this corporation, the different classes of
membership, if any, the property, voting and other rights and
privileges of members, liability for dues and assessments and
the method of collecting same, and the transfer of membership
shall be as stated in the Bylaws.
SEVENTH: The directors shall serve without compen-
sation, and no director shall receive any pecuniary benefit as
a direct result of being a director of this corporation.
EIGHTH: The powers of this corporation shall be
exercised, its property controlled, and its affairs conducted
by the Board of Directors, as set forth in the Bylaws.
NINTH: Neither the directors nor the members of this
corporation shall be personally liable for the debts, liabilities,
or obligations of the corporation.
TENTH: Notwithstanding any of the above statements
of purposes and powers, this corporation shall not, except to
an insubstantial degree, engage in any activities or exercise
any powers that are not in furtherance of the specific purposes
of this corporation.
-2-
ELEVENTH: Amendment of these articles shall require
the vote or written consent of a bare majority of the Board of
Directors, a bare majority of the voting power of the corpora-
tion, and a bare majority of the voting power of members of
this corporation other than the declarant; provided, however,
if the two-class voting structure is still in effect as pro-
vided in the Bylaws, these articles may not be amended without
the vote or written assent of a majority of each class of
membership.
DATED: , 1985
Scott E. Woodward
I hereby declare that I am the person who executed
the foregoing Articles of Incorporation, which execution is
my act and deed.
Scott E. Woodward
-3-
P1M. 1=1 Lt-:
0
BYLAWS OF TAMARACK POINTE MASTER ASSOCIATION
Page
ARTICLE I - NAME AND LOCATION 1
ARTICLE II - DEFINITIONS
Section 2.1 - Declaration 1
Section 2.2 - Other Definitions 1
ARTICLE III - MEMBERSHIP; VOTING RIGHTS 1
ARTICLE IV - MEETINGS OF MEMBERS
Section 4.1 - Annual Meetings 2
Section 4.2 - Special Meetings 2
Section 4.3 - Organizational Meeting of Members 2
Section 4.4 - Place of Meetings 2
Section 4.5 - Notice of Meetings 2
Section 4.6 - Quorum 2
Section 4.7 - Proxies 3
Section 4.8 - Order of Business 3
Section 4.9 - Parliamentary Procedure 3
Section 4.10 - Action Without Meeting 3
ARTICLE V - SELECTION AND TERM OF OFFICE OF BOARD
Section 5.1 - Number 4
Section 5.2 - Term of Office 4
Section 5.3 - Compensation 4
Section 5.4 - Indemnification of Directors, Officers
and Employees 4
ARTICLE VI - NOMINATION, ELECTION AND REMOVAL OF DIRECTORS
Section 6.1 - Nomination 5
Section 6.2 - Initial Homeowner Representation 5
Section 6.3 - Election 5
Section 6.4 - Cumulative Voting 5
Section 6.5 - Removal 5
Section 6.6 - Vacancies 6
ARTICLE VII - MEETING OF DIRECTORS
Section 7.1 - Regular Meetings
Section 7.2 - Special Meetings .0
BYLAWS (Continued)
Page
Section 7.3 - Organization Meeting of Board 6
Section 7.4 - Quorum 7
Section 7.5 - Board Action Without a Meeting 7
Section 7.6 Adjournment 7
Section 7.7 - Conduct of Meetings 7
Section 7.8 - Right of Members to Attend 7
Section 7.9 - Executive Sessions 7
ARTICLE VIII - POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 8.1 - Powers B
Section 8.2 - Duties 8
Section 8.3 - Budgets and Financial Statements 8
ARTICLE IX - OFFICERS AND THEIR DUTIES
Section 9.1 - Enumeration of Officers 9
Section 9.2 - Election of Officers 9
Section 9.3 - Term 10
Section 9.4 - Special Appointments 10
Section 9.5 - Resignation and Removal 10
Section 9.6 - Vacancies 10
Section 9.7 - Multiple Offices 10
Section 9.8 - Duties 10
ARTICLE X - COMMITTEES 11
ARTICLE XI - BOOKS AND RECORDS
Section 11.1 - Inspection and Copying 11
Section 11.2 - Rules and Regulations 11
Section 11.3 - Rights of Directors 12
ARTICLE XII - ASSESSMENTS 12
ARTICLE XIII - AMENDMENTS 12
ARTICLE XIV - MISCELLANEOUS
Section 14.1 - Fiscal Year
Section 14.2 - Corporate Seal
Section 14.3 - Conflict
Section 14.4 - Proof of Membership
Section 14.5 - Absentee Ballots
13
13
13
13
13
BYLAWS
OF
TAMARACK POINTE MASTER ASSOCIATION
ARTICLE I
NAME AND LOCATION
The name of the corporation is TAMARACK POINTE MASTER
ASSOCIATION (hereinafter referred to as the "Master Association").
The principal office of the corporation shall be located within
the covered property (as hereinafter defined) or as close thereto
as practicable, in the City of Carlsbad, County of San Diego,
State of California.
ARTICLE II
DEFINITIONS
Section 2.1 Declaration. The "Declaration" shall
mean the Declaration of Covenants, Conditions, and Restrictions
for Tamarack Pointe Master Association, San Diego County,
California, and any amendments and Supplemental Declarations
thereto.
Section 2.2 Other Definitions. Each and every
definition set forth in Article I of the Declaration shall
have the same meaning herein.
ARTICLE III
MEMBERSHIP; VOTING RIGHTS
The qualification for membership, the class of
membership and the voting rights of members shall be as set
forth in Article II of the Declaration.
3
ARTICLE IV
MEETINGS OF MEMBERS
Section 4.1 Annual Meetings. Annual meetings of the
members shall be held on such date and at such time as the board
of directors shall determine from time to time; provided, however,
that the first of said annual meetings shall not commence until
subsequent to the organizational meeting as set forth in Section
4.3 of this Article IV.
Section 4.2 Special Meetings. A special meeting of
the members shall be promptly called by the board upon:
(a) The vote for such a meeting by a majority of a
quorum of the board, or
(b) Receipt of a written request for a special meeting
signed by members representing at least five percent (5%) of the
total voting power of the Master Association.
Section 4.3 Organizational Meeting of Members. The
organizational meeting of the members shall be deemed to be a special
meeting, and shall be held within forty-five (45) days after the
closing of the sale of the residence which represents the fifty-
first percentile (51%) interest authorized for sale under the first
public report for any portion of the covered property, but in no
event shall the meeting be held later than six (6) months after the
close of escrow of the first residence in the development.
Section 4.4 Place of Meetings. Meetings of the mem-
bers shall be held within the covered property or at a meeting
place as close thereto as possible. Unless unusual conditions
exist, meetings shall not be held outside San Diego County.
Section 4.5 Notice of Meetings. Written notice of
regular and special meetings shall be given to members by the
board by mailing a copy of such notice, postage prepaid, not less
than 10 nor more than 90 days before the date of any meeting to
each member entitled to vote thereat, addressed to the member's
address last appearing on the books of the Master Association, or
supplied by such member to the Master Association for the purpose
of notice. Such notice shall specify the place, day and hour of
the meeting, and, in the case of a special meeting, the nature of
the business to be undertaken.
Section 4.6 Quorum. The presence at any meeting in
person or by proxy of members entitled to cast at least fifty-one
percent (51%) of the total votes of all members of the Master
Association shall constitute a quorum. In the absence of a quorum,
a majority of those present in person or by proxy may adjourn the
meeting to another time, but may not transact any other business.
An adjournment for lack of a quorum by those in attendance shall be
to a date not less than five (5) days and not more than thirty (30)
-2-
days from the original meeting date. The quorum for an adjourned
meeting shall be twenty-five percent (25%) of the total voting
power of the Master Association. If a time and place for the
adjourned meeting is not fixed by those in attendance at the
original meeting or if for any reason a new date if fixed for
the adjourned meeting after adjournment, notice of the time
and place of the adjourned meeting shall be given to members in
the manner prescribed for regular meetings.
Section 4.7 Proxies. Every member entitled to vote
shall have the right to do so either in person, 'or by a written
proxy executed by such member, and filed with the secretary of the
Master Association; provided, that no such proxy shall be valid
after the expiration of eleven (11) months from the date of its
execution. Every proxy shall be revocable and shall automatically
cease when the ownership interest or interests of such member en-
titling him to membership in the Master Association ceases.
Section 4.8 Order of Business. The order of business
of all meetings of the members shall be as follows:
(a) Roll call;
(b) Proof of notice of meeting or waiver of notice;
(c) Reading of: minutes of preceding meeting;
(d) Reports, of board and officers;
(e) Election of directors, if any are to be elected;
(f) Unfinished business; and
(g) New business.
Section 4.9 Parliamentary Procedure. All questions
of parliamentary procedure shall be decided in accordance with
Roberts Rules of Order.
Section 4.10 Action Without Meeting. Any action which
may be taken by the vote of members at a regular or special meeting.,
except the election of directors where cumulative voting is allowable,
may be taken without a meeting if done in compliance with the provi-
sions of Section 7513 of the Corporations Code.
-3-. 5
ARTICLE V
SELECTION AND TERM OF OFFICE OF BOARD
Section 5.1 Number. The affairs of the Master Associa-
tion shall be managed by a board of five (5) directors, who are
required to be members of the Master Association.
Section 5.2 Term of Office. Until the holding of
the organizational meeting of the members, the board shall consist
of the incorporator of the Master Association. At the organizational
meeting of members, the members shall elect three (3) directors to
serve for a term commencing at the close of the organizational
meeting and continuing until the following first annual meeting,
and two (2) directors to serve for a term commencing at the close
of the organizational meeting and continuing until the following
second annual meeting. At the expiration of the initial term of
office of each respective director, his successor shall be elected
to serve for a term of two (2) years, commencing immediately follow-
ing the annual meeting of members, and expiring two (2) annual meet-
ings thereafter.
Section 5.3 Compensation. : No director shall receive
compensation for any service he may render to the Master Association.
However, any director may be reimbursed for his actual expenses
incurred in the performance of his duties.
Section 5.4 Indemnification of Directors, Officers
and Employees. Except to the extent prohibited by then applicable
law, the Master Association shall reimburse, indemnify and hold
harmless each present and future director, officer and employee
of the Master Association from and against all loss, cost, liability
and expense which may be imposed upon or reasonably incurred by him,
including reasonable settlement payments, in connection with any
claim, action, suit or proceeding, or threat thereof, made or
instituted, in which he may be involved or be made a party by reason
of his being or having been a director, officer or employee of the
Master Association or such other Master Association, or by reason
of any action alleged to have been taken or omitted by him in such
capacity, if a disinterested majority of the board of the Master
Association (or, if a majority of the board is not disinterested,
then independent legal counsel) determines in good faith that such
person was acting in good faith) (a) within what he reasonably
believed to be the scope of his authority or employment, and (b)
for a purpose which he reasonably believed to be in the best interests
of the Master Association.
The right of indemnification provided in this Section shall
inure to each person referred to in this section, and in the event of
his death shall extend to his legal representatives. The right of
indemnification provided in this Section shall not be exclusive of
-4- 4
any other rights to which any such person, or any other individual,
may be entitled as a matter of law (including, without limitation,
his rights under section 7237 of the California Corporations Code),
or under any agreement, vote of directors or stockholders or otherwise.
ARTICLE VI
NOMINATION, ELECTION AND REMOVAL OF DIRECTORS
Section 6.1 Nomination. Nomination for election to
the board shall be made by a nominating committee. Nominations may
also be made from the floor at the annual meeting of members. The
nominating committee shall consist of a chairman, who shall be a
member of the board, and two or more members of the Master Associa-
tion. The nominating committee shall be appointed by the board
subsequent to each annual meeting of the members, to serve from
the close of such annual meeting until the close of the next annual
meeting. The nominating committee shall make as many nominations
for election to the board as it shall, in its discretion, determine
but not less than the number of vacancies that are to be filled.
All such nominations must be made from among members.
Section 6.2 Initial Homeowner Representation. Not less
than twenty percent (20%) of the representatives on the board shall
be elected solely by the votes of owners other than the Declarant
at any election in which the Declarant retains a majority of the
voting power of the Master Association.
Section 6.3 Election. Election to the board and removal
therefrom shall be by secret written ballot. At any such election the
members or their proxies may cast, in respect to each vacancy, as many
votes as they are entitled to exercise under the provisions of the
Declaration. The persons receiving the largest number of votes shall
be elected, except as is otherwise provided in Section 6.2.
Section 6.4 Cumulative Voting. Cumulative voting in the
election of directors shall be prescribed for all elections in which
more than two positions on the board are to be filled subject only to
the procedural prerequisites to cumulative voting prescribed in
Section 7615(b) of the Corporations Code.
Section 6.5 Removal. Any director may be removed from
the board with or without cause by a majority vote of the members of
the Master Association; provided, however, that unless the entire
board is removed, an individual director shall not be removed prior
to the expiration of his term of office if the votes cast against
removal would be sufficient to elect the board member if voted
cumulatively at an election at which the same total number of votes
were cast and the entire number of directors authorized at the time
of the most recent election of the board members were then being
elected.
Notwithstanding the foregoing provisions, any director
appointed pursuant to Section 6.2 may be removed from office prior
-5- 7
to the expiration of his term of office only by the vote of at
least a simple majority of the voting power residing in members
other than Declarant.
Section 6.6 Vacancies. In the event of death or
resignation of a director, his successor shall be elected by
the remaining members of the board and shall serve for the un-
expired term of his predecessor. The remaining members of the
board shall not, however, have the power to reappoint the removed
director or directors.
ARTICLE VII
MEETING OF DIRECTORS
Section 7.1 Regular Meetings. Regular meetings of
the board shall be held monthly within the covered property at
such time as may be fixed from time to time by resolution of the
board. Should said meeting fall upon a legal holiday, then that
meeting shall be held at the same time on the next day which is
not a legal holiday.
Notice of the time and place of a regular meeting shall
be posted at a prominent place or places within the cpmmunity
facilities and shall be communicated to board members not less
than four days prior to the meeting; provided, however, that
notice of a meeting need not be given to any board member who
has signed a waiver of notice or a written consent to holding of
the meeting.
Section 7.2 Special Meetings. Special meetings of
the board may be called by written notice signed by the president
of the Master Association or by any two members of the board other
than the president. The notice shall specify the time and place of
the meeting and the nature of any special business to be considered.
Notice shall be posted in a manner prescribed for notice
of regular meetings and shall be sent to all board members not less
than seventy-two (72) hours prior to the scheduled time of the
meeting; provided, however, that notice of the meeting need not be
given to any board member who signed a waiver of notice or a writ-
ten consent to holding of the meeting.
Section 7.3 Organization Meeting of Board. The first
meeting of a newly elected board shall be an organizational meet-
ing and shall be held within ten (10) days of election of the
board, at such place as shall be fixed and announced by the direc-
tors at the meeting at which such directors were elected for the
purpose of organization, election of officers and the transaction
of other business. No notice shall be necessary to the newly
elected directors in order legally to constitute such meeting,
provided a majority of the whole board shall be present when the
time and place are. announced.
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8
Section 7.4 Quorum. A majority of the number of
directors shall constitute a quorum for the transaction of busi-
ness. Every act or decision done or made by a majority of the
directors present at a duly held meeting at which a quorum is
present shall be regarded as the act of the board, unless a
greater number be required by law or by the articles of incor-
poration or by the declaration.
Section 7.5 Board Action Without a Meeting. The
board may take actions without a meeting if all of its members
consent in writing to the action to be taken. If the board re-
solves by unanimous written consent to take action, an explana-
tion of the action taken shall be posted at a prominent place
or places within the common area within three days after written
consent of all directors has been obtained.
Section 7.6 Adjournment - Notice. A quorum of
the directors may adjourn any directors' meeting to meet again
at a stated day and hour. Notice of the time and place of hold-
ing an adjourned meeting shall be given to all directors. In
the absence of a quorum, a majority of the directors present at
any directors' meeting, either regular or special, may adjourn
from time to time until the time fixed for the next regular meet-
ing of the board.
Section 7.7 Conduct of Meetings. The president,
or in his absence, any director selected by the directors pres-
ent, shall preside at meetings of the board. The secretary of
the Master Association, or in his absence, any person appointed
by the presiding officer, shall act as secretary of the board.
Section 7.8 Right of Members to Attend. Regular
and special meetings of the board shall be open to all members
of the Master Association; provided, however, that Master
Association members who are not on the board may not participate
in any deliberance or discussion unless expressly so authorized
by the vote of a majority of a quorum of the board.
Section 7.9 Executive Sessions. The board may,
with the approval of a majority of a quorum of its members,
adjourn a meeting and reconvene in executive session to discuss
and vote upon personnel matters, litigation in which the
Master Association is or may become involved and orders of
business of a similar nature. The nature of any and all busi-
ness to be considered in executive session shall first be an-
nounced in open session.
Orim
II
ARTICLE VIII
POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 8.1 Powers. The board shall have all powers
conferred upon the Master Association as set forth herein and in
the Declaration, excepting only thOse powers expressly reserved
to members.
Section 8.2 Duties. It shall be the duty of the
board to:
(a) Cause to be kept a complete record of all acts
and corporate affairs and to present a statement thereof to the
members at each annual meeting of the members, or at any special
meeting when such statement is requested in writing by one-fourth
(1/4) of the Class A members who are entitled to vote.
(b) Supervise all officers, agents and employees of
the Master Association, and to see that their duties are properly
performed.
(C) Delegate its powers as provided in this Declaration.
Section 8.3 Budgets and Financial Statements. The
board shall cause to be regularly prepared and distributed to all
members regardless of the number of members or the amount of assets
of the Master Association as follows:
(a) A budget consisting of at least the following
information for each fiscal year shall be distributed not less
than forty-five (45) days prior to the beginning of the fiscal
year:
(i) Estimated revenue and expenses on an accrual
basis.
(ii) The amount of the total cash reserves of the
Association currently available for replacement or major repair
of any facilities and for contingencies.
(iii) An itemized estimate of the remaining life
of, and the methods of funding to defray repair, replacement or
additions to major components of any facilities for which the
Association is responsible.
(iv) A general statement setting forth the procedures
used by the governing body in the calculation and establishment
of reserves to defray the costs of repair, replacement or additions
to major components of any facilities for which the Association
is responsible.
10
(b) A balance sheet---as of an accounting date which
is the last day of the month closest in time to six (6) months
from the date of closing of the first sale of a lot in the
development---and an operating statement for the period from the
date of the first closing to the said accounting date, shall be
distributed within sixty (60) days after the accounting date.
This operating statement shall include a schedule of assessments
received and receivable identified by the number of the sub-
division interest and the name of the entity assessed.
(c) An annual report consisting of the following shall
be distributed within one hundred-twenty (120) days after the
close of the fiscal year:
(i) A balance sheet as of the end of the fiscal
year.
(ii) An operating (income) statement for the
fiscal year.
(iii) A statement of changes in financial position
for the fiscal year.
For any fiscal year in which the gross income to the
Association exceeds $75,000, a copy of the review of the annual
report prepared in accordance with generally accepted' accounting
principles by a licensee of the California State Board of Accountancy
shall also be distributed. If the report referred to in (c)
above is not prepared by an independent accountant, it shall be
accompanied by the certificate of an authorized officer of the
Association that the statements were prepared without independent
audit or review from the books and records of the Association.
In addition to financial statements, the governing body shall
annually distribute within sixty (60) days prior to the beginning
of the fiscal year a statement of the Association's policies and
practices in enforcing its remedies against members for defaults
in the payment of regular and special assessments including the
recording and foreclosing of liens against members' subdivision
interests.
ARTICLE IX
OFFICERS AND THEIR DUTIES
Section 9.1 Enumeration of Officers. The officers
of the Master Association shall be a president and vice president,
who shall at all times be members of the board, a secretary, and
a treasurer, and such other officers as the board may from time
to time by resolution create.
Section 9.2 Election of Officers. The election of
officers shall take place at the organizational meeting of the
board following each annual meeting of the members.
I
11
Section 9.3 Term. The officers of this Master Asso-
ciation shall be elected annually by the board and each shall
hold office for one (1) year unless he shall sooner resign, or
shall be removed, or shall otherwise be or become disqualified to
serve.
Section 9.4 Special Appointments. The board may
elect such other officers as the affairs of the Master Associa-
tion may require, each of whom shall hold office for such period,
have such authority, and perform such duties as the board may,
from time to time, determine.
Section 9.5 Resignation and Removal. Any officer
may be removed from office with or without cause by the board.
Any officer may resign at any time after giving written notice
to the board, the president or the secretary. Such resignation
shall take effect on the date of receipt of such notice or at
any later time specified therein, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary
to make it effective.
Section 9.6 Vacancies. A vacancy in any office may
be filled by appointment by the board. The officer appointed
to such vacancy shall serve for the remainder of the term of
the officer he replaces.
Section 9.7 Multiple Offices. The offices of the
secretary and treasurer may be held by the same person. No per-
son shall simultaneously hold more than one of any of the other
offices except in the case of special offices created pursuant
to Section 9.4.
Section 9.8 Duties. The duties of the officers
are as follows:
Prsi dnt
(a) The president shall preside at all meetings of
the board, shall see that orders and resolutions of the board
are carried out, shall sign all leases, mortgages, deeds and
shall co-sign all promissory notes.
Vice-President
(b) The vice president shall act in the place and
stead of the president in the event of his absence, inability
or refusal to act, and shall perform such other duties as may
be required of him by the board.
Secretary
(c) The secretary shall record the votes and keep
the minutes of all meetings and proceedings of the board and
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121
of the members, shall keep the corporate seal of the Master Associa-
tion and affix it on all papers requiring said seal, shall serve
notice of meetings of the board and of the members, shall keep ap-
propriate current records showing the members of the Master Associa-
tion together with their addresses, and shall perform such other
duties as required by the board.
Trcsurr
(d) The treasurer shall be responsible for receiving
and depositing in appropriate bank accounts all monies of the
Master Association and shall be responsible for disbursing such
funds as directed by resolution of the board, shall co-sign all
promissory notes of the Master Association, shall keep proper
books of account, shall prepare budgets and financial statements
on behalf of the Master Association, and shall perform such other
duties as required by the board.
ARTICLE X
COMMIS
The Master Association shall appoint a nominating com-
mittee as provided in these bylaws. In addition, the board shall
appoint such other committees as it deems appropriate in order to
carry out its purpose.
ARTICLE XI
BOOKS AND RECORDS
Section 11.1 Inspection and Copying. The member-
ship register, books of account and minutes of meetings of the
members, of the board and of committees of the board of the
Master Association shall be made available for inspection and
copying by any member of the Master Association--or by his duly
appointed representative--at any reasonable time and for a pur-
pose reasonably related to his interest as a member, at the office
of the Master Association or at such other place within the covered
propertyas the board shall prescribe.
Section 11.2 Rules and Regulations. The board shall
establish reasonable rules with respect to:
(a) Notice to be given to the custodian of records by
the member desiring to make the inspection.
(b) Hours and days of the week when such an inspection
may be made.
(c) Payment of the cost of reproducing copies of docu-
ments requested by a member.
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131
Section 11.3 Rights of Directors. Every director
shall have the absolute right at any reasonable time to inspect
all books, records and documents of the Master Association and
the physical properties owned or controlled by the Master Asso-
ciation. The right of inspection by a director includes the
right to make extracts and copies of documents.
ARTICLE XII
ASSESSMENTS
As more fully provided in the Declaration, each member
is obliged to pay to the Master Association certain assessments
which are secured by a continuing lien upon the property against
which the assessment is made. Any assessments which are not paid
when due shall be delinquent and subject to a late charge in an
amount as determined by the Master Association from time to time
which charge shall not exceed the maximum amount permitted under
the laws of California. If the assessment is not paid when due,
it shall bear interest from the date of delinquency at the high-
est rate permitted under California law. The Master Association
shall have the right to impose monetary penalties, temporary
suspensions of an owner's rights as a member of the Master Asso-
ciation or other appropriate discipline for failure to comply
with the governing instruments provided that the procedures for
notice and hearing, satisfying the minimum requirements of
Section 7341 of the Corporations Code, are followed with respect
to the accused member before a decision to impose discipline is
reached. The Master Association may bring an action at law
against the owner personally obligated to pay the same or fore-
close the lien against the property, and interest, costs and
actual attorneys' fees of any such action shall be added to the
amount of such assessment. No owner may waive, or otherwise be
relieved of liability for the assessments provided for herein
by non-use of the community facilities or abandonment of his
residence.
ARTICLE XIII
AMENDMENTS
These bylaws may be amended, at a regular or special
meeting of the members, by the vote or written assent of:
(a) At least a bare majority of a quorum of the
voting power of the Master Association; and
(b) At least a bare majority of the votes of the
members other than the Declarant.
-12-
'SI
Notwithstanding the above, the percentage of a quorum
or of the voting power of the Master Association or of members
other than the Declarant necessary to amend a specific clause or
provision in these bylaws shall not be less than the prescribed
percentage of affirmative votes required for action to be taken
under that clause.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Fiscal Year. The fiscal year of the
Master Association shall be determined by the Board of
Directors, except that the first fiscal year shall begin on
the date of incorporation of the Master Association.
Section 14.2 Corporate Seal. The Master Association
shall have a seal in the circular form, containing the name
of the Master Association, and "Incorporated
1985," and "California."
Section 14.3 Conflict. In the case of any
conflict between the articles and these bylaws, the articles
shall control; and in the case of any conflict between the
Declaration and these bylaws, the Declaration shall control.
Section 14.4 Proof of Membership. No person
shall exercise the rights of membership in the Master Associa-
tion until satisfactory proof thereof has been furnished to
the secretary. Such proof may consist of either a copy of
recorded deed or title insurance policy showing said person
to be the owner of a residence in the covered property entitling
him to membership. Such deed or policy shall be deemed
conclusive in the absence of a conflicting claim based on a
later deed or policy.
Section 14.5 Absentee Ballots. The board may
take such provisions as it may consider necessary or desir-
able for absentee ballots.
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151
CERTIFICATE OF ADOPTION OF BYLAWS
The undersigned person appointed in the articles to
act as the incorporator of the above named corporation hereby
adopts the same as the bylaws of said corporation.
Executed this day of , 1985.
SCOTT E. WOODWARD
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"I
PL.N. ppLE;
CT et.I-Fy
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
TAMARACK POINTE MASTER ASSOCIATION
PAGE
ARTICLE I - DEFINITIONS 3-7
ARTICLE II - MEMBERSHIP
Section. 2-01 - Membership 8
Section 2-02 - Transfer 8
Section 2-03 - Voting Rights . 8
Section-2-04 - Classes of Voting Membership 8
Section 2-05 - Special Voting Rights of Members-Other Than
Declarant 9
Section 2-06 - Approval of All Members . 9
ARTICLE III - COVENANT FOR ASSESSMENTS
Section 3-01 - Creation of the Lien and Personal Obligation 11
of Assessments
Section 3-02 - Purpose of Assessments 11
Section 3-03 - Regular Assessments 11
Section 3-04 - Uniform Assessment 13
Section 3-05 - Certificate of Payment 13
Section 3-06 - Exempt Property 13
Section 3-07 - Special Assessments 13
Section 3-08 - Date of Commencement of Regular Assessments 14
Section 3-09 - No Offsets 14
Section 3-10 - Homestead Waiver 14
Section 3-11 - Reserves 15
ARTICLE IV - NONPAYMENT OF ASSESSMENTS
Section 4-01 - Delinquency
Section 4-02 - Noticeof Lien
Section 4-03 - Foreclosure Sale
Section 4-04 - Curing of Default
Section 4-05 - Cumulative Remedies
16
16
16
17
17
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE
TAMARACK POINTE MASTER ASSOCIATION
PAGE
ARTICLE V - ARCHITECTURAL AND LANDSCAPE CONTROL
Section 5-01 - Appointment of Architectural Committee 18
Section 5-02 - General Provisions 18
Section 5-03 - Approval and Conformity of Plans 19
Section 5-04 - Nonhiability for Approval of Plans 19
Section 5-05 - Appeal 19
Section 5-06 - Inspection and Recording of Approval 19
Section 5-07 - Nonapplicability to Community Facilities 20
Section 5-08 - Nonapplicability to Condominiums 20
Section 5-09 - Improvement of Condominium Common Area 20
ARTICLE VI - DUTIES AND POWERS OF THE MASTER ASSOCIATION
Section 6-01 - General Duties and Powers of the Master 21
Association
Section 6-02 - General Duties of the Master Association 21
Section 6-03 - General Powers of the Master Association 22
Section 6-04 - General Limitations and Restrictions on 23
the Powers of the Board
Section 6-05 - Association Rules 24
Section 6-06 - Emergency Powers 24
ARTICLE VII -REPAIR AND MAINTENANCE
Section 7-01 - Repair and Maintenance by Master Associa- 25
tion
Section 7-02 - Repair and Maintenance by Owner 25
Section 7-03 - Standards for Maintenance and Installation 25
Section 7-04 - Right of Entry 25
ARTICLE VIII --
INSURANCE
Section 8-01 - Types 26
Section 8-02 - Waiver by Members 26
Section 8-03 - Other Insurance; Annual Review 27
Section 8-04 - Premiums, Proceeds and Settlement 27
Section 8-05 - Federal Requirements 27
ARTICLE IX - DESTRUCTION OF COMMUNITY FACILITIES
Section 9-01 - Duty of Master Association 28
Section 9-02 - Automatic Reconstruction 28
Section 9-03 - Vote of Members 28
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE
TAMARACK POINTE MASTER ASSOCIATION
PAGE
ARTICLE X - EMINENT DOMAIN
Section 10-01 - Definition of Taking 29
Section 10-02 - Appointment of Board 29
Section 10-03 - Procedure on Taking - 29
Section 10-04 - Inverse Condemnation 29
ARTICLE XI - USE RESTRICTIONS
Section 11-01 - Commercial Use 30
Section 11-02 Signs 30
Section 11-03 - Nuisance 30
Section 11-04 - Temporary Structures 30
Section 11-05 - Recreational Vehicles 30
Section 11-06 - Animals 30
Section 11-07 - Oil and Mineral Rights 31
Section 11-08 - Unsightly Items 31
Section 11-09 - Antennas 31
Section 11-10 - Drainage 31
Section 11-11 - Garages 31
Section 11-12 - Window Covers 32
Section 11-13. - Commercial Vehicles 32
Section 11-14 - Single-Family Residential 32
Section 11-15 - Repair of Vehicles 32
Section 11-16 - Pests 32
Section 11-17 - Solar Systems 32
Section 11-18 - Slopes 32
Section 11-19 - Rubbish Removal 32
Section 11-20 - Clothes Drying Facilities 32
Section 11-21 - Maintenance of Lawns and Plantings 33
ARTICLE XII - RIGHTS OF ENJOYMENT
Section 12-01 - Members' Right of Enjoyment - 34
Section 12-02 - Delegation of Use 34
Section 12-03 - Waiver of Use .34
ARTICLE XIII - EASEMENTS
Section 13-01 - Amendment to Eliminate Easements . 35
Section 13-02 - Nature of Easements 35
Section 13-03 - Rights and Duties: Utilities and Cable 35
Television
Section 13-04 - Utilities 35
Section 13-05 - Cable Television 35
Section 13-06 - Utilities Shown on Tract Map 36
Section 13-07 - Construction and Sales 36
Section 13-08 - Slopes 36
Section 13-09 - Easements for Certain Residences 36
Section 13-10 - Community Facilities Easements 36
Section 13-11 - Master Association Rights 36
1
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS *'OR THE
TAMARACK POINTE MASTER ASSOCIATION
ARTICLE XIV ANNEXATIONS
Development of the Covered Property
Supplementary Declarations
Annexation Without Approval and ,P
to General Plan
Annexation Pursuant to Approval
Mergers of Consolidations
Limitation Upon Annexation
Expanstion of Association Members
Improvements on Future Phases of
Development
Section 14-01 -
Section 14-02 -
Section 13-03 -
Section 14-04 -
Section 14-05 -
Section 14-06 -
Section 14-07 -
Section 14-08 -
ARTICLE XV - RIGHTS OF MORTGAGEES
Section 15-01 -
Section 15-02 -
Section 15-03 -
Section 15-04 -
Section 15-05 -
Section 15-06 -
Section 15-07 -
Section 15-08 -
Section 15-09 -
Section 15-10 -
Section 15-11 -
Applicability
Notification of Default to Lender
Exemption from Unpaid Assessment
Prohibited Actions Without Owner
Right to Operating Information
Priority Rights of Lenders
Damage, Destruction
Payment of Delinquent Taxes and C
Reserve Fund
Insurance
Effect of Breach
ARTICLE XVI - GENERAL PROVISIONS
Section 16-01
Section 16-02
Section 16-03
Section 16-04
Section 16-05
Section 16-06
Section 16-07
Section 16-08
Section 16-09
Section 16-10
Section 16-11
Section 16-12
Section 16-13
Section 16-14
Section 16-15
Section 16-16
Section 16-17
Enforcement
No Waiver
Cumulative Remedies
Severability
Covenants to Run with the Land; Term-
Construction
Singular Includes Plural
Nuisance
Attorneys' Fees
Notices
Obligation of Declarant
Effect of Declaration
Personal Covenant
Nonliability of Officials
Enforcement of Bonded Obligations
Construction by Declarant
Amendments
PAGE
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37
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38
38
38
39
39
40
40
40
40
41
41
41
41
42
42
42
43
43
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43
43
44
44
44
44
44
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45
45
45
45
46
47
ARTICLE XVII - AUTOMATIC AMENDMENTS AND OTHER EF
FEDERAL
PROGRAMS -
Section 17-01 - Amendments to Conform with Mortgagee 48
Requirements
RECORDING REQUESTED BY.AND
WHEN RECORDED NAIL TO:
TAMARACK POINTE VENTURE
5100 Campus Drive
Newport Beach, California 92660
Attn: Scott Woodward
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
TAMARACK POINTE MASTER ASSOCIATION
SAN DIEGO COUNTY, CALIFORNIA
THIS DECLARATION is made this day of , 1985,
by TAMARACK POINTE VENTURE, a California joint venture ("De-
clarant").
RECITALS:
A. Declarant is the fee owner of the real property
described in Exhibit "A" to this Declaration, which shall be the
initial Covered Property under this Declaration ("Covered
Property"), and the real property which hereafter from time to
time is annexed pursuant to this Declaration and thereby
becomes a part of the Covered Property.
B. Declarant has deemed it desirable to establish
covenants, conditions and restrictions upon the Covered Prop-
erty and each and every portion thereof, which -will constitute
a general scheme for the management of the Covered Property,
and for. the use, occupancy and enjoyment thereof, all for the
purpose of enhancing and protecting the value, desirability
and attractiveness of the Covered Property and enhancing the
quality of life within the Covered Property.
C. It is desirable for the efficient management of the
Covered Property, and the preservation of the value, desira-
bility and attractiveness of the Covered Property to create a
corporation to which shall be delegated and assigned the
powers of managing the Covered Property, maintaining and
administering the Community Facilities and administering and
enforcing these covenants, conditions and restrictions and
collecting and disbursing funds pursuant to the assessments
and charges hereinafter created and referred to and to perform
such other acts as shall generally benefit the residents of
the Covered Property.
4II:I:I1
D. Tamarack Pointe Master Association, a nonprofit,
mutual benefit corporation, has been incorporated under the
laws of the State of California for the purpose of exercising
the powers and functions aforesaid.
E. Declarant will hereafter hold and convey title to
all of the Covered Property subject to certain protective
covenants, conditions and restrictions hereafter set forth.
NOW, THEREFORE, Declarant hereby covenants, agrees and declares
that all of its interest as the same may from time to time
appear in the Covered Property shall be held and conveyed
subject to the following covenants, conditions, restrictions
and easements which are hereby declared to be for the benefit
of said interests in the Covered Property, and the owners of
said interests, their successors and assigns.. These cove-
nants, conditions, restrictions and easements shall run with
said interests and shall be binding upon all parties having or
acquiring any right or title in said interests or any part
thereof, and shall inure to the benefit of each owner thereof
and are imposed upon said interests and every part thereof as
a servitude in favor of each and every of said interests as
the dominant tenement or tenements.
-2-
ARTICLE I
Definitions
Unless the context clearly indicates otherwise, the following
forms used in this Declaration are defined as follows:
Section 1-1. "Architectural Committee" shall mean and refer
to the committee or committees provided for in the Article
hereof entitled "Architectural Control."
Section 1-2. "Articles" and "Bylaws" shall mean and refer to
the Articles of Incorporation and Bylaws of the Master Associa-
tion as the same may from time to time be duly amended. The
Articles, Bylaws and this Declaration may also be referred to
herein or in the Articles and Bylaws as "Governing Instruments."
Section 1-3. "Assessments" - The following meanings shall be
given to the Assessments hereinafter defined:
"Regular Assessment" shall mean the amount which is to be paid
by each Member to the Master Association for Common Expenses.
"Special Assessment" shall mean a charge against a particular
Owner and his Residence, directly attributable to the Owner,
to reimburse the Master Association for costs incurred in
bringing the Owner and his Residence into compliance with the
provisions of this Declaration, the Articles, Bylaws or Asso-
ciation Rules, or any other charge designated as a Special
Assessment in.this Declaration, the Articles, Bylaws, or
Association Rules, together with attorney's fees and other
charges payable by such Owner, pursuant to the provisions
of this Declaration, plus interest thereon as provided for
in this Declaration.
"Reconstruction Assessment" shall mean a charge against each
Member and his Residence representing a portion of the cost
to the Master Association for reconstruction of any portion
or portions of the Community Facilities pursuant to the pro-
visions of this Declaration.
-3-
- - --
Section 1-4. "Association Rules" shall mean rules adopted
by the Master Association pursuant to the Article hereof entitled
"Duties and Powers of the Master Association."
Section 1-5. "Board" shall mean the Board of Directors of
the Master Association.
Section 1-6. "City" shall mean and refer to the City of
Carlsbad, California, a municipal corporation of the State
of California.
Section 1-7. "Common Expenses" shall mean and refer to the
actual and estimated:
(a) costs of maintenance, management, operation,
repair and replacement of the Community Facilities and
slopes, and all other areas on the Covered Property which
are maintained by the Master Association;
(b) unpaid Assessments;
(c) costs of management and administration of the
Master Association, including, but not limited to, com-
pensation paid by the Master Association to managers,
accountants, attorneys and employees;
(d) costs of utilities, trash pickup and disposal,
gardening and other services which generally benefit and
enhance the value and desirability of the Covered Property;
(e) costs of fire, casualty, liability, workmen's corn-
.pensation and other insurance covering the Community Facilities;
(f) costs of any other insurance obtained by the
Master Association; -
(g) reasonable services as deemed appropriate by the
Board;
(h) costs of bonding of the members of the Board, any
professional managing agent or any other person handling the
funds of the Master Association;
MIC
I-
mean and refer to all the
"A" hereto and all of the
on Exhibit "E" hereto
(i) taxes paid by the Master Association;
(j) amounts paid by the Master. Association for discharge
of any lien or encumbrance levied against the Community Facilities
or portions thereof;
(k) costs incurred by the Architectural Committee or other
committees established by the Board; and
(1) other expenses incurred by the Master Association for
any reason whatsoever in connection with the Community Facilities..
Section 1-8. "Community Facilities".shall mean all real property
and the improvements thereon owned by the Master Association
for the common use and enjoyment of the Members, including
without limitation any of the following.: open spaces, parks
and recreational vehicle parking areas. Upon recording the first
conveyance of a Residence to an Owner, the Community Facilities
shall be that certain property described on Exhibit "B". Any
real property denominated as "Community Facilities" in a
Supplementary Declaration shall be conveyed to the Master
Association prior to or concurrently with the first conveyance
of a Residence located within the real property which is
annexed to the coverage hereof by such Supplementary-Dec-
laration. Declarant shall convey the Community Facilities to
the Master Association free of all liens and encumbrances
except current real property taxes (which taxes shall be
prorated as of the date of conveyance), title exceptions of
record and the covenants, conditions, reservations and re-
strictions-contained in this Declaration and the instrument
which conveys the Community Facilities to the Master Associa-
tion.
Section 1-9. "Condominium" and "Condominium Owner" shall
mean, respectively, the estate and the Owner thereof of any
condominium within the Covered Property.
Section 1-10. "Covered Property" shall mean and refer to all
the real property described on Exhibit "A" hereto and, subse-
quent to the annexation thereof pursuant to the Article of
this Declaration entitled "Annexations," any real property
which shall become subject to this Declaration.
Section 1-11. "Development" shall
real property described on Exhibit
annexable real property described
-5--
Section 1-12. "Exhibit" shall mean and refer to those docu-
ments so designated herein and attached hereto and each of
such Exhibits is by this reference incorporated in this Dec-
laration.
Section 1-13. "Family" shall mean one or more persons related
to each other by blood, marriage or legal adoption, or a group
of not more than three (3.) persons not all so related, together
with his or their domestic servants, maintaining a common
household in a Residence.
Section 1-14. "Federal Agencies" shall mean and refer to
collectively one or more of the following agencies: FHA
(Federal Housing Administration), FHLMC (Federal Home Loan
Mortgage Corporation), FNMA (Federal National Mortgage Asso-
ciation), GNMA (Government National Mortgage Association), VA
(Veterans Administration).
Section 1-15. "Institutional Mortgagee" shall *tean and refer
to a Mortgagee which is a bank or savings and loan association
or established mortgage company, or other entity chartered
under federal or state laws, any corporation or insurance
company, any federal or state agency, or any other institution
specified by the Board in a recorded instrument.
Section 1-16. "Lot" shall mean and refer to a plot of land as
shown upon the recorded subdivision map of the Development
which is intended for the construction of one (1) single-family
Residence and other related improvements. It shall not include
the common area or Recreational Facilities.
Section 1-17. "Master Association" shall mean and refer to
Tamarack Pointe Master Association, a nonprofit mutual benefit
corporation, incorporated .under the laws of the State of
California, its successors and assigns.
Section 1-18. "Member" shall mean and refer to every person
or entity who holds a membership in the Master Association,
including Declarant so long as Declarant qualifies for mem-
bership pursuant to Article II.
Section 1-19. "Mortgage" shall mean and refer to any duly re-
corded mortgage or deed of trust encumbering a Residence.
Section 1-20. "Mortgagee" shall mean and refer, to the mort-
gagee or beneficiary under any Mortgage.
Section 1-21. "Owner" shall mean and refer to one or more per-
sons or entities who are alone or collectively the record owner
of a fee simple title to a Residence, including Declarant, or
the vendee under an installment land sales contract, but ex-
cluding those having any such interest merely as security for
the performance of an obligation.
Section 1-22. "Residence" shall mean and refer to a lot
shown on any final map filed for record or a parcel shown on
any parcel map filed for record to the extent such lots or
parcels are part of the Covered Property; provided, however,
"Residence" shall not include any Community Facilities.
"Residence" shall also mean any Condominium. "Residence"
shall include the residential dwelling unit together with
garages, structures and other improvements on the same lot
or parcel, and in the case of a Condominium all elements of
a "unit" conveyed to the Condominium Owner, as "unit" is
defined on the condominium plan recorded for said Condominium.
Section 1-23. "Slopes" shall mean and refer to the slopes
shown on Exhibit "C" which slopes shall be maintained by the
Master Association.
Section 1-24. "Supplementary Declaration" shall mean those
certain declarations of covenants, conditions and restrictions,
or similar instruments, annexing additional property extend-
ing the plan of this Declaration to such additional property
as provided in the Article of this Declaration entitled
"Annexations."
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ARTICLE II
Membership
Section 2-1. "Membership" - Every Owner shall be a Member of
the Master Association. The terms and provisions set forth in
this Declaration, which are binding upon all Owners, are not
exclusive, as Owners shall, in addition, be subject to the
terms and provisions of the Articles, Bylaws and Association
Rules. Membership of Owners shall be appurtenant to and may
not be separated from the interest of such Owner in any Residence.
Ownership of a Residence shall be the sole qualification for
membership; provided, however, a Member's voting rights or
privileges in the Community Facilities, or both, 'may be -regulated
or suspended as provided in this Declaration, the Bylaws or the
Association Rules. Not more than one membership shall exist
based upon ownership of a single Residence..
Section 2-2. "Transfer" - The membership held by any Owner shall
not be transferred, pledged or alienated in any way, except that
such membership shall automatically be transferred to the trans-
feree of the interest of an Owner. Any attempt to make a
prohibited transfer is void and will not, be reflected upon the
books and records of the Master Association. The Master
Association shall have the right to record the transfer upon
the books of the Master Association without any further action
or consent by the transferring Owner.
Section 2-3. "Voting Rights" - An Owner's right to vote shall
vest immediately upon the date Regular Assessments commence upon
such Owner's Residence as provided in this Declaration. All
voting rights shall be subject to the restrictions and limitations
provided herein and in the Articles, Bylaws and Association Rules.
Section 2-4. "Classes of Voting Membership" - The Master Associ-
ation shall have two (2) classes of voting membership:
Class A. Class A Members shall be all Owners with the
exception of the Declarant during such time that it shall have
Class B membership. Each Class A Member shall be entitled to
one (1) vote for each Residence in which such member holds the
interest required for membership. When more than one person owns
a portion of the interest in a Residence required for membership,
each such person shall be a Member and the vote for such Residence
shall be exercised as they among themselves determine, but in no
event shall more than one (1) vote be cast with respect to any
Residence.
am
Class B. The Class B Member shall be Declarant
who shall be entitled to three (3) votes for each Residence
in which it holds the interest required for membership,
provided that the Class B Membership shall be converted to
Class A Membership and shall forever cease to-exist on the
occurrence of whichever of the following is first in time:
(a) When the total outstanding votes held by
Class A Members equal the total outstanding votes held by
the Class B Members;
(b) The second anniversary of the original issuance
of the most recently issued Final Subdivision Public Report
issued by the California Department of Real Esta-e for a
phase of the Development; or
(c) The fourth anniversary of the original issuance
of the Final Subdivision Public Report issued by the California
Department of Real Estate for the first phase of the Development.
Section 2-5. "Special Voting Rights of Members Other Than
Declarant" - Notwithstanding the provisions of this Article,
from the first election of the Board, and thereafter for so
long as a majority of the voting power of the Association
resides in the Declarant, or so long as there are two outstanding
classes of membership in the Association, not less than
twenty percent (20%) of the directors on the Board shall
have been elected solely by the votes of Members other than
Declarant.
Section 2-6. "Approval of All-Members" - Unless elsewhere
other-wise specifically provided in this Declaration, any
provision of this Declaration which requires the vote or
written assentof the voting power of the Master Association
or any class or classes of membership shall be deemed
satisfied by the following:
(a) The vote in person or by proxy of the specified
percentage of all of the votes which are entitled to be cast
by the entire membership of the Master Association. Said
vote shall be at a meeting duly called and noticed pursuant
to the provisions of the Bylaws dealing with annual or
specified meetings of the Members.
- (b) Written consents signed by the specified
percentage of all of the votes which are entitled to be
cast by the entire membership of the Master Association.
Said vote by written consent shall be solicited pursuant
to the procedures provided in the Bylaws.
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ARTICLE III
Covenant for Asessments
Section 3-1. "Creation of the Lien and Personal Obligation
of Assessments" - The Declarant, for each Residence owned by
it, hereby covenants and agrees to pay, and each Owner of
any Residence by acceptance of a deed or other conveyance
creating in such Owner the interest required to be deemed an
Owner, whether or not it shall be so expressed in any such
deed or other conveyance, is deemed to covenant and agree to
pay to the' Master Association: Regular Assessments, Special
Assessments and Reconstruction Assessments, such Assessments
to be fixed, established and collected from time to time as
provided in this Declaration. The Assessments, together with
interest thereon, late charges, attorneys' fees and court
costs, and other costs of collection thereof, as hereinafter
provided, shall be a continuing lien upon the Residence against
which each such Assessment is made. Each such Assessment,
together with such interest, late charges, costs and attorneys'
fees, shall also be the personal obligation of the Owner of
such Residence at the time when the Assessment becomes due.
The personal obligation shall not pass to the successors in
title of an Owner unless expressly assumed by such successors.
Section 3-2. "Purpose of Assessments" - The Assessments levied
by the Master Association shall be used exclusively for the
purposes of promoting the recreation, health, safety and wel-
fare of the Members, the management of the Covered Property,
including, without limitation, the improvement and maintenance
of the properties, or in furtherance of any other duty or power
of the Master Association.
Section 3-3. "Regular Assessments" - The board shall prepare
or cause to be prepared a budget for the ,forthcoming fiscal year
not less than forty-five (45) days before the beginning of each
fiscal year of the Master Association. The budget shall be
prepared each year regardless of the number of members or the
amount of assets of the Master Association. A copy of the budget
shall be distributed to each owner and to each mortgageee which
has requested in writing that copies be sent to it. The budget
shall at least include the following information:
(A) Estimated revenue and expenses on an accrual basis;
(B) The amount of the total cash reserves of the Master
Association currently available for replacement or
major repair of Recreational Facilities and for
contingencies;.
(C) An itemized estimate of the remaining life of, and
the methods of funding to defray repair, replacement
or additions to major components of the Recreational
Facilities and any other facilities for which the
Association is responsible; and
(D) A general statement setting forth the procedures used
• by the governing body in the calculation and establish-
ment of reserves to defray the costs of repair,
replacement or additions to major components of
the Recreational Facilities and any other facilities
for which the Master Association is responsible.
A balance sheet (as of an accounting date which is
the last day of the month closest in time to six months from
the date of closing of the first sale of a Residence in the
Development) - and an operating statement (for the period from
the date of the first closing to the said accounting date)
shall be distributed within sixty (60) days after the accounting
date. This operating statement shall include a schedule of
assessments received and receivable identified by the address of.
the Residence and the name of the individual or entity assessed.
A report consisting of the following shall be
distributed within one hundred and twenty (120) days after the
close of the fiscal year:
(A) A balance theet as of the end of the fiscal year;
(B) An operating (income) statement for the fiscal
year;
(C) A statement of changes in financial position
for the fiscal year.
For any fiscal year in which the gross income to the
Master Association exceeds $75,000, a copy of the review of the
annual report prepared in accordance with generally accepted
accounting principles by a licensee of the California State
Board of Accountancy shall also be distributed. If said report
is not prepared by an independent accountant, it shall be
accompanied by the certificate of an authorized officer of the
Master Association that the statement was prepared from the
books and records of the Master Association without independent
audit or review.
In addition to financial statements, the Master
Association shall annually distribute a statement of the Master
Association's policies and practices in enforcing its remedies
against members for defaults in the payment of regular and
special assessments including the recording and foreclosing of
liens against members' condominium interests. This statement
shall be distributed within sixty (60) days prior to the
beginning of each fiscal year.
Not more than sixty (60) days nor less than thirty
(30) days before the beginning of each fiscal year of the
Master Association, the board shall meet for the purpose of
establishing the regular annual assessment for the forthcoming
fiscal year. At such meeting the board shall review the
budget, any written comments received and any other informa-
tion available to it and, after making any adjustments that
the board deems appropriate, without a vote of the members of
the Master Association, shall establish the regular assessment
for the forthcoming fiscal year; provided, however, that the
board may not establish a regular assessment for any fiscal
year of the Master Association which is more than twenty
percent (20%) greater than the regular assessment for the
immediately preceding fiscal year, without the vote or written
consent of a majority of thevoting power of .the Master Associa-
tion residing in members other than Declarant..
Unless the Master Association or its assessment
income shall be exempt from federal or state income taxes, to
the extent possible, all reserves shall be accounted for and
handled as contribution to the capital of the Master Associa-
tion and as trust funds segregated from the regular income of
the Master Association or in such other manner authorized by
law or regulations of the Internal Revenue Service and the
California Franchise Tax Board as will prevent such funds from
being taxed as income of the Master Association.
Section 3-4. "Uniform Assessment" - Reconstruction and Regu-
lar Assessments shall be fixed at an equal amount for each
Residence and maybe collected at intervals selcted by the
Board.
Section 3-5.. "Certificate of Payment" - The Master Associa-
tion shall, upon demand, furnish to any Member liable for
Assessments, a certificate in writing signed by an officer or
authorized agent of the Master Association setting forth
whether the Assessments on a specified Residence have been
paid, and the amount of delinquency, if any. Such certifi-
cates shall be conclusive evidence of payment of any Assess-
ment therein stated to have been paid as to any third party
who relies thereupon in good faith.
Section 3-6. "Exempt Property" - All properties dedicated
to and accepted by, or otherwise owned or acquired by, a
public authority shall be exempt from the Assessments created
herein.
Section 3-7. "Special Assessments" - If the board determines
that the estimated total amount of funds necessary to defray
the common expenses of the Master Association for a given
fiscal year is or will become inadequate to meet expenses for
any reason, including, but not limited to, unanticipated
delinquences, costs of construction, unexpected repairs or
replacements of capital improvements on the common area, the
board shall determine the approximate amount necessary to
defray such expenses, and if the amount is approved by a
majority vote of the board it shall become a special assess-
ment. The board may, in its discretion, pro rate such special
assessment over the remaining months of the fiscal year or
levy the assessment immediately against each Residence.
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Unless exempt from federal or state income taxation, all
proceeds from any special assessment shall be segregated and
deposited into a special account and shall be used solely for
the purpose or purposes for which it was levied or it shall be
otherwise handled and used in a manner authorized by law or
regulations of the Internal Revenue Service or the California
Franchise Tax Board in order to avoid, if possible, its taxation
as income of the Master Association.
Section 3-8. "Date of Commencement of Regular Assessments" -
The Regular Assessments shall commence as to all Residences on
the first day of the month following the first conveyance of
a Residence within that phase; provided, however, the Regu-
lar Assessments, as to Residences in annexed areas, if any,
shall commence with respect to all Residences within each such
annexed area on the first day of the month following the first
conveyance of a Residence within that phase.
Section 3-9. "No Offsets" -*All Assessments shall be payable
in the amount specified by the Assessments and no offsets
against such amount shall be permitted for anyreason, including,
without limitation, a claim that the Master Association is not
properly exercising its duties and powers.as.provided in this
Declaration or that a Member has made or elects to make no use
of the Community Facilities. .
Section 3-10. "Homestead Waiver" - Each Owner, to the extent
permitted by law, does hereby waive, to the extent of any liens.
created pursuant to this Declaration, whether such liens are now
in existence or are created at any time in the future, the benefit
of any homestead or exemption laws of the State of California now
in effect, or in effect from time to time hereafter.
-14-
Section 3-11. "Reserves" - The Regular Assessments shall include
reasonable amounts as determined by the Board collected as reserves
for the future periodic maintenance, repair or replacement of all
or a portion of the Community Facilities, or any other purpose as
determined by the Board. All amounts collected as reserves,
whether pursuant to this Section or otherwise, shall be deposited
by the Board in a separate bank account to be held in trust for
the purposes for which they are collected and are to be segre-
gated from and not commingled with any other funds of the Master
Association. Such reserves shall be deemed a contribution to
the capital account of the Master Association by the Members.
-15-
ARTICLE IV
Nonpayment of Assessments
Section 4-1. "Delinquency" - Any assessment provided for in this
Declaration which is not paid when due shall be delinquent on said
due date (the "delinquency date"). If any such Assessment is not
paid within thirty (30) days after the delinquency date, a late
charge as determined by the Board but in no event to exceed the
maximum permitted by law shall be levied and the Assessment
shall bear interest from the delinquency date at the highest rate
of interest authorized under California law. The Master Association
may, at its. option, and without waiving the right, to judicially fore-
close its lien against the Residence (any foreclosure right for nonpay-
ment of assessments under this or any other Article contained within
this Declaration shall be for nonpayment of Regular -Assessments only,
there shall be no foreclosure right for nonpayment of any type of
special assessment, and all reference to foreclosure rights is for
nonpayment of Regular Assessments only), pursue any available remedies,
including, without limitation, bringing an action at law against the
Member personally obligated to pay the same, and/or upon compliance
with the notice provisions set forth in the Section entitled "Notice
of Lien" of this Article, to foreclose the lien against the Residence.
If action is commenced, there shall be added to the amount of such
Assessment the late charge, interest, the costs of such-action ' and
attorney's fee, together with the costs of action. Each Member vests
in the Master Association or its assigns the right and power to bring
all actions at law or lien foreclosure against such Member or other
Members for the collection of such delinquent Assessments.
Section 4-2. "Notice of Lien" - No action shall be brought to fore-
close said Assessment lien or to proceed under the power of sale
herein provided until thirty (30) days after the date a notice of
claim of lien is deposited in the United States mail, certified or
registered, postage prepaid, to the owner of said Residence, and a
copy thereof is recorded by the Master Association in theOffice of
the San Diego County Recorder; said notice of claim of lien must recite
a good and sufficient legal description of any such Residence, the
record Owner or reputed Owner thereof, the amount claimed (which
shall include interest on the unpaid Assessment at the highest rate
of interest authorized under California law, a late charge, plus.
reasonable attorneys' fees and expenses of collection in connection
with the debt secured by said lien), and the name and address of
the claimant.
Section 4-3. "Foreclosure Sale" - Said Assessment lien may be
enforced by sale by the Master Association, its attorney or any
other person authorized by the Board to make the sale after
failure of the Owner to make the payments specified in the notice
of claim of lien within said thirty (30) day period. Any such
sale provided for above is to be conducted in accordance with the
provisions of Section 2924, 2924b, 2924c, 2924f, 2924g and 2924h
of the Civil Code of the State of California, as said statutes may
from time to time be amended, applicable to the exercise of powers
of sale in mortgages and deeds of trust, or in any other manner
permitted or provided by law. The Master Association, through
its duly authorized agents, shall have the power to bid on the
Residence using Master Association funds or funds borrowed for
such purpose, at the sale, and to acquire and hold, lease,
mortgage and convey the same.
Section 4-4.. "Curing of Default" - Upon the timely payment or
other satisfaction of (i) all delinquent Assessments specified
in the notice of claim of lien, (ii) all other Assessments which
have become due and payable with respect to the Residence as to
which such notice of claim of lien was recorded, and (iii) interest,
late charges, attorneys' fees and other costs of collection pursuant
to this Declaration and the notice of claim of lien which have
accrued, officers of the Master Association or any other persons
designated by the Board are hereby authorized to.file or record,
as the case may be, an appropriate release of such notice, upon
payment by the defaulting Owner of a fee, to be determined by the
Master Association, but not to exceed Twenty-Five Dollars ($25.00)
to cover the costs of preparing and filing or recording such
release. .
Section 4-5. "Cumulative Remedies" - The Assessment lien and the
rights to foreclosure and sale thereunder shall be in addition to
and not in substitution for all other rights and remedies whiOh
the Master Association and its assigns may have hereunder and by
law, including a suit to recover a money judgment for unpaid
Assessments, as above provided. .
-17-
ARTICLE V
Architectural and Landscape Control
Section 5-1. "Appointment of Architectural Committee" - The
Architectural Committee shall consist of not less than three (3)
nor more than five (5) persons as fixed from time to time by
resolution of the Board. The Declarant shall initially appoint
all of the Architectural Committee. The Declarant shall retain
the right to appoint, augment or replace all members of the
Architectural Committee until three (3) years after the date
of the issuance of a Final Subdivision Public Report for the
Covered Property from the California Department of Real
Estate, or until ninety percent (90%) of the Residences
within the Covered Property have been conveyed by Declarant,
whichever shall first occur, provided that Declarant may, at
its sole option, transfer this right to the Board by written
notice thereof prior to the end of such period. Notwithstanding
the foregoing, commencing one year following the first
conveyance by Declarant of a Residence, the Board shall have
the right but not the obligation to appoint one (1) person
to the Architectural Committee. Three (3) years after the
date of the issuance of said Subdivision Public Report or
when ninety percent (90%) of the Residences within the
Covered Property have been conveyed by Declarant, whichever
shall first occur, the right to appoint, augment or replace
all Members of the Architectural Committee shall automatically
be transferred to the Board. Persons appointed by the Board
to the Architectural Committee must be Members; however,
persons appointed by Declarant to the Architectural Committee
need not be Members, in Declarant's sole discretion.
Section 5-2. "General Provisions"
(a) The Architectural Committee may establish reasonable
procedural rules in connection with review of plans and
specifications, including, without limitation, the number of
sets of plans to be submitted. Unless any such rules
regarding submission of plans are complied with, such plans
and specifications shall be deemed not submitted.
(b) The address-of the Architectural Committee shall
be determined by said Committee. Such address shall be the
place for the submittal of plans and specifications and the
place where the current Architectural Standards, if any,
shall be kept.
(c) The establishment of the Architectural Committee and
the systems herein for architectural approval shall not be
construed as changing any rights or restrictions upon Owners to
maintain, repair, alter or modify, or otherwise have control over
the Residences as may otherwise be specified in this Declaration,
in the Bylaws or in the Association Rules.
(d) In the event the Architectural Committee fails to
approve or disapprove such plans and specifications within
forty-five (45) days after the same have been duly submitted in
accordance with any rules regarding such submission adopted by
the Architectural Committee, such plans and specifications will
be deemed approved.
Section 5-3. "Approval and Conformity of Plans" - No building,
fence, wall or other structure, or landscaping shall be commenced,
erected, maintained or planted upon the Covered Property, nor
shall there be any addition to or change in the bxterior of any
Residence, structure or other improvement, or landscaping unless
plans and specifications therefor have been submitted to and
approved by the Architectural Committee. The Board shall, from
time to time, adopt and promulgate Architectural Standards to be
administered through the Architectural Committee.
Section 5-4. "Nonliability for Approval of Plans" Plans and
specifications shall be approved by the Architectural Committee
as to style, exterior design, appearance and location, and are
not approved for engineering design or for compliance with zoning
and building ordinances, and by approving such plans and specifica-
tions neither the Architectural Committee, the members thereof,
the Master Association, the Members, the Board nor Declarant
assumes liability or responsibility therefor, or for any defect
in any structure constructed from such plans and specifications.
Section 5-5. "Appeal" - In the event plans and specifications
submitted to the Architectural Committee are disapproved thereby,
the party or parties making such submission may appeal in writing
to the Board. The written request shall be received by the Board
not more than thirty (30) days following the final decision of the
Architectural. Committee. The Board shall submit such request to
the Architectural Committee for review, whose written recommenda-
tions are to be submitted to the Board. Within forty-five (45)
days following receipt of the request for appeal, the Board shall
render its written decision.
Section 5-6. "Inspection and Recording of Approval" - Any member
of the Architectural Committee or any officer, director, employee
or agent of the Master Association may at any reasonable time
enter, without being deemed guilty of trespass, upon any Residence
after notice to the Owner in order to inspect improvements
constructed or being constructed on such Residence to ascertain
that such improvements have been or are being built in compliance
with plans and specifications approved by the Architectural
Committee and in accordance with the Architectural Standards. The
-19-
Architectural Committee shall cause such an inspection to be
undertaken within thirty •(30) days of a written request
therefor from any Owner as to his Residence, and if such
inspection reveals that the improvements located on such
Residence have been completed in substantial compliance with
this Article, the President and •the Secretary of the Master
Association shall provide to such Owner a notice of such
approval in recordable form which, when recorded, shall be
conclusive evidence of compliance with the provisions of
this Article as to the improvements described in such
recorded notice, but as to such improvements only.
Section 5-7. "Nonapplicability to Community Facilities" -
In no event shall the provisions of this Article apply to
the construction by Declarant of any improvements intended
to be conveyed to the Master Association as Community -
Facilities or any improvement intended to be conveyed to a
Maintenance Association, or to any Residence intended to be
conveyed to an Owner.
Section 5-8. "Nonapplicability to Condominiums" - In no
event shall the provisions of this Article apply to a
condominium regime, Tamarack Pointe Townhomes, constructed
by Declarant over a portion of the Covered Property. With
respect to improvements and landscape, all authority and
control of said condominium regime shall be exclusively vested
in an Architectural Committee created in a declaration of
covenants, conditions and restrictions for said property and
the provisions of this Article and the Architectural Committee
created herein shall have no jurisdication or authority over
said property on which said condominiums are constructed.
Section 5-9. "Improvement of Condominium Common area" - The
Architectural Committee shall not approve any plans or
specifications for any improvement within any area in the
Covered Property denominated as "Common Area" in a declaration
of covenants, conditions and restrictions establishing a
condominium regime over a portion of the Covered Property.
004019
ARTICLE VI
Duties and Powers of the Master Association
Section 6-1. "General Duties and Powers of the Master Associ-
ation" - In addition to the duties and powers enumerated in its
Articles and Bylaws, or elsewhere provided for herein, and without
limiting the generality thereof, the Master Association shall have
the specific duties and powers specified in this Article.
Section 6-2. "General Duties of the Master Association" - The
Master Association through the Board shall have the duty and
obligation to: .
(a) enforce the provisions of this Declaration, the Articles,
the Bylaws and the Association Rules by appropriate means and
carry out the obligations of the Master Association hereunder;
(b) maintain and otherwise manage the following:
(i) all assessments and real property and all facilities,
improvements and landscaping thereon in which the Master Association
holds an interest, subject to the terms of any instrument trans-
ferring such interest to the Master. Association;
(ii) all personal property in which the Master Association
holds an interest, subject to the terms of any instrument trans-
ferring such interest to the Master Association; and
(iii) all property, real or personal, which the Master
Association is obligated to repair or maintain pursuant to this
Declaration, including, without limitation, the Article of this
Declaration entitled "Repair and Maintenance".
(c) pay any real and personal property taxes and other
charges, or other charges assessed to or payable by the Master
Association;
(d) obtain, for the benefit of the Community Facilities,
all necessary utility services and other services as required;
(e) prepare budgets and financial statements for the Master
Association as prescribed in the Bylaws;
(f) formulate rules of operation of. the Community Facilities,
and facilities owned or controlled by the Master Association;
(g) initiate and execute disciplinary proceedings against
members for violations of provisions of the Articles, Bylaws,
Declaration and Association Rules in accordance with procedures
set forth in such documents;
(h) elect officers of the Board;
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(i) fill vacancies on the Board, except vacancies created
by the removal of a Director;
(j) subject to the limitations imposed under this Article,
contract for casualty, liability and other insurance on behalf
of the Master Association;
(k) subject to the limitations imposed under this Article,
contract for goods and/or services for the property owned or
controlled by the Master Association;
(1) grant easements where necessary for utilities over the
Community Facilities.
Section 6-3. "General Powers of the Master Association" - The
Master Association through the Board shall have the power but not
the obligation to:
(a) delegate its powers to committees, officers, employees
or agents any of its duties and powers under the Governing
Instruments, provided, however, no such delegation to a professional
management company, the Architectural Committee or otherwise shall
relieve the Master Association of its obligations to perform such
delegated duty;
(b) employ a manager or other persons and contract with
independent contractors or managing agents who have professional
experience in the management of residential developments similar
to the Covered Property to perform all or any part of-the duties
and responsibilities of the Master Association, provided that any
contract not approved by FHA or VA with a person or firm appointed
as a manager or managing agent shall be terminable for cause on
not more than thirty (30) days' written notice by the Master
Association and without cause upon ninety (90) days' written
notice by either party. without payment of a termination fee, and
shall have a term of not more than one (1) year with successive
one (1) year renewal periods upon mutual agreement of the parties;
(c) acquire interests in real or personal property for
offices or other facilities that may be necessary or convenient
for the management of the Covered Property, the administration of
the affairs of the Master Association or for the benefit of the
Members;
(ci) borrow money as may be needed in connection with the
discharge by the Master Association of its powers and duties;
(e) negotiate and enter into contracts with Institutional
Mortgagees and mortgage insurers and guarantors as may be
necessary or desirable to facilitate the availability of loans
secured by Mortgages within the Covered Property.
(f) establish in cooperation with the City a special tax
assessment district for the performance of all or a portion of
the slope maintenance or other functions now within the respon-
sibility of the Master Association, together with the right to
transfer to said district a license or easement to enable the City
to perform its functions thereunder.
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Section 6-4. "General Limitations and Restrictions on the
Powers of the Board" - In addition to the limitations and restric-
tions renumerated in the Articles and Bylaws or elsewhere pro-
vided for herein, and without limiting the generality thereof,
the Board shall be prohibited from taking any of the following
action without the approval of a majority of the voting power of
the Association residing in members other than the Declarant:
(a) Enter contracts for materials or --services which
have a term in excess of one (1) year, with the following
exceptions:
(i) a management contract, the terms of which have
been approved by the FHA or VA;
(ii) a contract with a public utility company if the
rates charged for the materials or services are regulated by the
Public Utilities Commission; provided, however, that the term of
the contract shall not exceed the shortest term for which the
supplier will contract at the regulated rate; and
- - (iii) prepaid casualty and/or liability insurance
policies of not to exceed three (3) years duration, provided that
the applicable policy permits short rate cancellation-by the
insured.
(b) Incur aggregate expenditures for capital improvements
to the Covered Property in any fiscal year in excess of five
percent (5%) of the estimated Common Expenses for the fiscal
year as set forth in the Sections entitled "Regular Assessments"
and "Capital Improvement Assessments" of the Article hereof
entitled "Covenant for Assessments".
(c) Sell any real or personal property of the Master
Association with an aggregate fair market value in excess of
five percent (5%)of said estimated Common Expenses during any
fiscal year.
(d) Pay compensation to directors or officers of the Master
Association for services performed in the conduct of the Master
Association's business; provided, however, the Board may cause a
director or officer to be reimbursed for expenses incurred in
carrying on the business of the Master Association. -
(e) Filling of a vacancy on the board of directors created
by the removal of a director.
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Section 6-5. "Association Rules" - The Board shall also have the
power to adopt, amend and repealsuch rules and regulations as
it deems reasonable (the "Association Rules"), which may include
the establishment of a system of fines and penalties enforceable as
Special Assessments, all as provided in the Bylaws. The Associa-
tion Rules shall govern such matters in furtherance of the purposes
of the Master Association, including, without limitation, the
use of the Community Facilities; provided, however, that the
Association Rules may not discriminate among Owners, and shall not
be inconsistent with this Declaration, the Articles or Bylaws. A
copy of the Association Rules as they may from time to time be
adopted, amended or repealed, or a notice setting forth the
adoption, amendment or repeal of specific portions of the Association
Rules shall be delivered to each Owner in the same manner established
in this Declaration for the delivery of notices. Upon completion
of the notice requirements, said Association Rulesshall have the
same force and effect as if they were set forth in and were part
of this Declaration and shall be binding on the Owners and their
successors in interest whether or not actually received thereby.
The Association-Rules,-as adopted, amended or repealed, shall be
available at the principal office of the Master Association to each
Owner and Institutional Mortgagee upon request. In the event of
any conflict .between any such Association Rules and any other
provisions of this Declaration, or the Articles or Bylaws, the
provisions of the Association Rules shall be deemed to be super-
seded by the provisions of this Declaration, the Articles or the
Bylaws to the extent of any such conflict.
Section 6-6. "Emergency Powers" - The Master Association or any
person authorized by the Master Association may enter any
Residence in the 'event of any emergency involving illness or
potential danger to life or property. Such entry shall be made
with as little inconvenience to the Owners as practicable, and
any damage caused thereby shall be repaired by the Master
Association unless covered by insurance carried by the Owner.
-'I-
ARTICLE VII
Repair and Maintenance
Section 7-1. "Repair and Maintenance by Master Association" -
Without limiting the generality of the statement of duties and
powers contained in this Declaration, the Articles, Bylaws,
or Association Rules, the Master Association shall have the
duty to accomplish the following upon the Community Facilities,
slopes or other land in such manner and at such times as the
Board shall prescribe:
(a) maintain, repair, restore, replace and make necessary
improvements to the Community Facilities;
(b) maintain, repair, replant and replace the Slopes
depicted on Exhibit C;
1.
(c) maintain, repair, restore, replace and make .ncssacy..
improvements to Li;jt but...no.t 1 mi fd
to the RecreatQVehjclarksituated_thsreon;
d) maintainrpi, xp1an f n (9 rp1ce _-the_.passive
Property, adjacent toJhae..A
Section 7-2.' 7-2. "Repair and Maintenance by Owner" - Except as the
Master Association shall be obligated to repair and maintain as
may be provided in this Declaration, every Owner shall:
(a) maintain the exterior of his Residence, walls, fences
and roof of such Residence in good condition and repair;-.
(b) maintain in attractive condition front and rear yard
landscaping in accordande with the provisions of this Article.
Section 7-3. "Standards for Maintenance and Installation" -
(a) All slopes or terraces on any Residence shall be
maintained so as to prevent any erosion thereof upon adjacent
streets or adjoining property.
(b) The Master Asspciation shall maintain any landscaped
areas which it owns or controls under an easement or license
agreement or which are owned in common by its members in an
attractive condition according to any rules promulgated by
the Board and shall maintain any slopes and terraces which.
are its responsibility so as to prevent erosion thereof upon
adjacent streets or adjoining property.
Section 7-4. "Right of Entry" - The Master Association, after
reasonable notice to Owner, shall have the right to enter upon
any Residence including its slopes and terraces in connection
with any maintenance, repair or construction in the exercise of
the powers and duties of the Master Association.
ARTICLE VIII
Insurance
Section 8-1. "Types" - The Master Association, to the extent
available, shall obtain and continue in effect in. its own name
the following types of insurance so long as such amounts or types
of insurance coverage are not, in the good faith judgment of the
Board, prohibitively expensive or no longer necessary or appro-
priate for the protection of the covered Property, the Master
Association and the Members:
(a) A comprehensive policy of public liability insurance
covering the Community Facilities and any other property main-
tained, controlled or managed by the Master Association, including,
without limitation, the slope areas within the Covered Property
which are maintained by the Master Association. Such policy
shall.have a limit of not less than One Million Dollars ($1,000,000)
for claims for .personal injury and/or property damage arising out
of a single occurrence, such coverage to include protection
against water damage liability, liability for nonowned and hired
automobile and liability for property of others, and such other
risks as shall customarily be covered with respect to similar
planned unit developments in the area of the Covered Property,
and shall contain a "severability of interest" endorsement or the
equivalent which shall preclude the insurer from denying the claim
of-an Owner because of negligent acts or omissions of the Master
Association or other Owners;
• . (b) A policy of fire and casualty insurance with extended
coverage for the full replacement value of the Community Facili-
ties without deduction for depreciation, with an "agreed amount
endorsement" or its equivalent and clauses waiving subrogation
against Members and the Master Association and persons upon the
Covered Property with the permission of a Member, such insurance
to afford protection against at least loss or damage by fire and
other hazards covered by the standard extended coverage endorsement
and vandalism and malicious mischief coverage.
(c) Fidelity coverage against dishonest acts on the part of
directors, officers, employees or volunteers who handle or who
are responsible to handle the funds of the Master Association,
and such fidelity bonds shall name the Master Association as
obligee, shall be written in an amount equal to one hundred fifty
percent (150%) of the estimated annual operating expenses of the
Master Association, including reserves, and shall contain waivers
of any defense based on the exclusion of persons who serve without
compensation or from any definition of "employee" or similar
expression.
Section 8-2. "Waiver by Members" - All insurance obtained by
the Master Association shall be maintained by the Master Associa-
tion for the benefit of the Master Association, the Owners
and the Mortgagees as their interests may appear. As to each of
said policies which will not be voided or impaired thereby, the
Owners hereby waive and release all claims against the Master
Association, the Board, other Owners, the Declarant and agents
and employees of each of the foregoing, with respect to any loss
covered by such insurance, whether or not caused by negligence
of or breach of any agreement by said persons, but to the extent
of insurance proceeds received in compensation for such loss only.
Section 8-3. "Other Insurance; Annual Review" - The Master
Association may purchase such other insurance as it may deem
necessary, or as may be required by law, including, but not
limited to, worker's compensation, officers' and directors'
liability, and errors and omission insurance. The Board shall
annually determine whether the amounts and types of insurance it
has obtained provide adequate coverage for the Community Facilities
in light of increased construction costs, inflation, practice in
the area in which -the Covered Property is located, or any other
factor which tends to indicate that either additional insurance
policies or increased coverage under existing policies are
necessary or desirable to protect .the interests of the Master
Association. If the Board determines that increased coverage or
additional insurance is appropriate, it shall obtain the same.
Section 8-4. "Premiums, proceeds and Settlement" - Insurance
premiums for any such blanket insurance coverage obtained by the
Master Association and any other insurance deemed necessary by
the Master Association shall be a Common Expense to be included
in the Regular Assessments levied by the Master Association.
Casualty insurance proceeds shall be used by the Master Association
for the repair or. replacement of the property for which the insurance
was carried, or otherwise disposed of as provided in the Article
hereof entitled "Destruction of Improvements". The Master Assoc-
iation is hereby granted the authority to negotiate loss settlements.
with the appropriate insurance carriers. Any two (2) directors
of the Master Association may sign a loss claim form and release
form in connection with the settlement of a loss claim, and such
signatures shall be binding on the Master Association and the
Members.
Section 8-5. "Federal Requirements" - Notwithstanding the
.foregoing provisions of this Article, the Master Association
shall continuously maintain in effect such casualty, flood and
liability insurance and a fidelity bond meeting the insurance
and fidelity bond requirements for planned unit development
projects established by FNMA, GNMA, FHLMC, FHA and VA, so long
as either is a Mortgagee or Owner within the Covered Property,
or insures or guarantees a Mortgage, as the case may be, except
to the extent such coverage is not available or has been waived
in writing by the foregoing entities. .
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ARTICLE IX
Destruction of Community Facilities
Section 9-1. "Duty of Master Association" - In the event of
partial or total destruction of the Community Facilities, it
shall be the duty of the Master Association to restore and
repair the same as promptly as practical pursuant to this
Article. The proceeds of any casualty insurance maintained
pursuant to this Declaration shall be used for such purpose,
subject to the prior rights of Mortgagees whose interest may be
protected by said policies.
Section 9-2. "Automatic Reconstruction" - In the event that the
amount available from the proceeds of such insurance policies for
such restoration and repair shall be at least eighty-five percent
(85%) of the estimated cost of restoration and x 1 epair or the cost
not covered by insurance proceeds is less than the sum of One
Hundred Fifty Dollars ($150.00) per year per Residence, a Recon-
struction Assessment, with each Owner contributing a like sum,
may be levied by the Master Association to provide the necessary
funds for such reconstruction, over and above the amount of any
insurance proceeds available for such purpose, and the Board shall
cause the damaged or destroyed Community Facilities to be
restored as closely as practical to its condition prior to the
destruction or damage.
Section 9-3. "Vote of Members" - In the event that the amount
available from the proceeds of such insurance policies for such
restoration and repair shall be less than eighty-five percent
(85%) of the estimated cost of restoration and repair or greater
than the sum of One Hundred Fifty Dollars ($150.00) per Residence
per year, the Community Facilities shall not be replaced or
restored unless a majority of the voting power of the Master
Association agree in writing to such replacement or restoration or
gives its affirmative vote at a meeting duly called therefor. If
the Members approve such replacement or restoration, the Board
shall cause the damaged or destroyed Community Facilities to be
restored as closely as practical to its former condition prior to
the destruction or damage.
ARTICLE X
Eminent Domain
Section 10-1. "Definition of Taking" - The term "taking" as used
in this Article shall mean condemnation by eminent domain or sale
under threat of condemnation of all or any portion of the Community
Facilities.-
Section 10-2. "Appointment of Board".-.In the event of a
threatened taking of all or any portion of the Community Facilities,
the Members hereby. appoint the Board and such persons as the .
Board may delegate to represent all of the Members in connection
with the taking. The Board shall act in its sole discretion with
respect to any awards being made in connection with the taking
and shall be entitled to make a voluntary sale to the condemnor
in lieu of engaging in a condemnation action.
Section 10-3. "Procedure on Taking" - Any awards received on
account of the taking shall be paid to the Master Association.
The Board may in its sole discretion retain any award in the general
funds of the Master Association or distribute pro rata all or a
portion thereof to the Members. The rights of an Owner and the
Mortgagee of his Residence as to any such pro rata distribution
shall be governed by the provisions of the Mortgage encumbering
such Residence.
Section 10-4. "Inverse Condemnation" - The Board is authorized
to bring an action in inverse condemnation. -In such event, the
provisions of this Article shall apply with equal force.
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ARTICLE XI
USE RESTRICTIONS
Section 11-1. "Commercial Use" - Subject to the Section entitled
"Construction and Sales" of the Article hereof entitled "Easements",
no part of a Residence shall be used or caused to be used or
allowed or authorized in any way, directly or indirectly, for any
business, commercial, manufacturing, mercantile, storing, vending,
or any nonresidential purposes; provided, however, that the Master
Association shall have the right to provide or authorize such
services on the Community Facilities as it deems appropriate for
the enjoyment of the Community Facilities or for the benefit of
the Members.
Section 11-2. "Signs" - No signs, posters or displays shall be
shown or displayed on a lot excepting one sign of customary
and reasonable dimensions which states that, the premises are for
sale or rent, as well as temporary signs and fl.gs customarily
used by real estate offices to advertise an open house, and such
signs as may be required by legal proceedings, excepting for
the right of Declarant to use billboards, signs, markers, flags,
flag poles and the like in connection with its sales or rental
activities.
Section 11-3. "Nuisance" - No noxious or offensive trade or
activity shall be carried on.or upon any Residence, or any part
of the Covered Property nor shall anything be done thereon which
may be, or may become, an annoyance or nuisance to the neighbor-
hood, or which shall in any way interfere with the quiet enjoyment
of each of 'the Owners of his respective Residence, or which shall
in any way. increase the rate of insurance.
Section 11-4. "Temporary Structures" - No structure of a temporary
character, trailer, tent, shack, garage, barn or other out-building
shall hereafter be used on any Residence at any time, either
temporarily or permanently.
Section 11-5. "Recreational Vehicles". - Any and all recreational
vehicles,-including-but not limited to trailers, campers, motorhomes
or boats, shall be permitted on the Covered Property only in the
designated Recreational Parking Area. The parking of such vehicles
shall be on an assigned basis determined by the Master Association.
No trailer, camper, motorhome, boat or similar recreational
vehicle shall hereafter be permitted to remain upon the
Covered Property otherwise.
Section 11-6. "Animals" - No animals, livestock or poultry of
any kind shall be raised, bred or kept upon the Covered Property,
except that dogs, cats or other household pets may be kept on the
Residences, provided they are not kept, bred or maintained for
any commercial purpose, or in numbers deemed unreasonable by the
Board. Notwithstanding the foregoing, no animals or fowl may be
kept on the Residences which, in the good faith judgment of the
Board or a committee selected by the Board for this purpose,
result in an annoyance or are obnoxious to residents in the
vicinity. All animals permitted to be kept by this Section shall
be kept on a leash when on any portion of the Covered Property
except within a Residence, or a fenced rear yard, courtyard or
patio.
Section 11-7. "Oil and Mineral Rights" - No oil drilling, oil
development operations, oil refining, quarrying, or mining
operations of any kind shall be permitted upon or in the Covered
Property nor, subsequent to the recording of this Declaration,
shall oil wells, tanks, tunnels or mineral excavations or shafts
be installed upon the surface of the Covered Property or within
five hundred (500) feet below the surface of such properties.
No derrick or other structure designed for use in boring for
water, oil or natural gas shall be erected, maintained or
permitted upon the Covered Property.
Section 11-8. "Unsightly Items" - All weeds, rubbish, debris or
unsightly materials or objects of any kind shall be regularly
removed from the Residences and shall not be allowed to accumu-
late thereon. All clotheselines, refuse containers, woodpiles,
storage areas, machinery and equipment shall be prohibited from
any Residence unless obscured from view of adjoining streets or
portions of the Covered Property from a height of six (6) feet
or less. Any fence or screen required by this Section shall
comply with the Architectural Standards or any other standards
promulgated by the Board as to size, color or other qualification
for permitted fences or screens. Trash cans and other rubbish
containers shall nQt be allowed to be visible from any portion
of the Private Streets except during the days in which trash is
collected.
Section 11-9. "Antennas" - No television, radio, or other
electronic antenna or device of any type shall hereafter be
erected, constructed, placed or permitted to remain on the
Covered Property, unless and until the same shall have been
approved in writing by the Architectural Committee, or unless
the same be contained within a building.
Section 11-10. "Drainage" - Each. owner agrees for himself and
his successors in interest that he will not in any way interfere
with the established drainage pattern over his 1t from adjoining
or other lots, or that he will make adequate provisions for
proper drainage in the event it is necessary to change the
established drainage over his lot. For the purposes hereof,
"established" drainage is defined as the drainage which occurred
at the time the overall grading of the properties was completed
by Declarant.
Section 11-11. "Garages" - No garage doors shall be permitted to
remain open except for a temporary purpose, and the Board may
adopt rules, for the regulation of the opening of garage doors,
including the assessment of charges to Owners who violate or
whose invitees violate such rules. Any charges so assessed shall
be Special Assessments. No automobile or other vehicle shall be
parked or stand outside of a garage if there is space for such
automobile or vehicle in such garage and no garage shall be used
for any purpose which would preclude parking of at least two
automobiles therein.
Isin
Section 11-12. "Window Covers" - Windows can be covered only
by drapes, shades, blinds or shutters and cannot be painted or
covered by aluminum foil, cardboard, or other similar materials.
Section 11-13. "Commercial Vehicles" - No commercial vehicles
may be parked or stored on any lot or street at any time.
Notwithstanding the foregoing, commercial vehicles which consist
of ordinary passenger automobiles, vans or pickup trucks, and
which are of such size to be garageable may be parked within the
Covered Property. In addition, commercial vehicles may be
parked on the lot or on the street for reasonable periods of
time for deliveries and/or construction purposes.
Section 11-14. "Single-Family Residential" - All Residences shall
only be used for the residential purposes of a family.
Section 11-15. "Repair of Vehicles" - No painting, repairing or
mechanical work, other than minor maintenance work and minor
emergency repairs, shall be done to a vehicle upon any
Residence except in any enclosed garage with the garage door
closed.
Section 11-16. "Pests" --No Owner shall permit any thing or
condition to exist upon any portion of the Covered Property
which shall induce, breed or harbor infectious plant diseases
or noxious insects or vermin.
Section 11-17. "Solar Systems" - All solar system collector units
shall be integrated into .the design of the dwelling in which each
is installed and shall be subject to approval by the Architectural
Committee in accordance with Article V entitled "Architectural.
Controls".
Section 11-18. "Slopes" - Although the Master Association shall
be responsible for maintaining the slopes as set forth in
Article VII Section 7-1, all owners of land adjoining said
slopes shall continuously maintain and properly water the land
so as to prevent damage or interference with established slope
ratios and to prevent erosion or sliding problems. No owners
shall be permitted to install fencing above the toe of the slope,
nor below the top of a slope. Fencing shall be installed
only at the top of the slope and shall be approved in writing
in advance by the Architectural Committee.
Section 11-19. "Rubbish Removal" - All garbage and trash shall be
placed and kept in sanitary, covered containers. On no event shall
such containers be maintained so as to be visible from neighboring
property except when set out for a reasonable period of time before
and after scheduled trash pickup times.
Section 11-20. "Clothes Drying Facilities" - Outside clothes lines
or other outside facilities for drying or airing clothes shall not
be erected, placed or maintained on any lot, unless they are
erected, placed and maintained so as not to be visible from
neighboring property.
-32-
Section 11-21. "Maintenance of Lawns and Plantings" - Each owner
of a lot shall keep all shrubs, trees, grass.and plantings of
every kind, including planted, areas between adjacent sidewalks
and the street curb, if any, neatly trimmed, properly cultivated
and watered, and free of trash, weeds and other unsightly material.
-33-
ARTICLE XII
Rights of Enjoyment.
Section 12-1. "Members' Right of Enjoyment" - Every Member shall
have a non-exclusive easement for use and enjoyment in and to the
Community Facilities, and such right shall be appurtenant to and
shall pass with the interest required to be an Owner to every
Residence, subject to all of the easements, covenants, conditions,
restrictions and other provisions contained in this Declaration,
including, without limitation, the following provisions:
(a) The right of the Master Association to establish reason--
able rules and regulations pertaining to the use of the Community
Facilities.
(b) The right of the Master Association to borrow money for
the purchase of improving, replacing, restoring or expanding the
Community Facilities or adding new Community Facilities and in
aid thereof, to mortgage saidproperty, provided that the prior
affirmative vote or written approval of a majority of each of the
Class A and the Class B members has been obtained to mortgage
said property, . and provided further that the rights of the lender
thereunder shall be subordinated to the rights of the Members.
(c) The right of the Master Association to suspend the right
of a Member to use the Community Facilities or any portion thereof
designated by the Board during any time in which any Assessment
against his Residence remains unpaid and delinquent or for a
period not to exceed thirty (30) days for any single infraction
of the rules and regulations of the Master Association, provided
that any suspension of such right to use such Community Factilities,
except for the failure to pay Assessments, shall be made only by
the Master Association or a duly appointed committee thereof,
after notice and hearing given and held in accordance with the
Bylaws. Notwithstanding the foregoing, the Master Association shall
not have the right hereunder to suspend any Member's right to use
any portion of the Covered Property necessary for such Member to
gain access to his Residence.
Section 12-2. "Delegation of Use" - Any Member may delegate his
right of enjoyment to the Community Facilities to the members of
his family or his tenants who reside on his Residence, or to his
guests, subject to rules and regulations adopted by the Board.
Section 12-3. "Waiver of Use" - No Member may exempt himself from
personal liability for Assessments duly levied by the Master
Association, nor release the Residence owned by him from the liens,
charges and other provisions of this Declaration, the Articles,
Bylaws and Association Rules, by waiver of the use and enjoyment
of the Community Facilities, or the abandonment of his Residence.
-34-
ARTICLE XIII
Easements
Section 13-1. "Amendment to Eliminate Easements" - This Declara-
tion cannot be amended to modify or eliminate the easements
reserved to Declarant herein without prior written approval of
Declarant and any attempt to do so shall have no effect. Any
attempt to modify or eliminate this Section shall likewise require
the prior written approval of Declarant.
Section 13-2. "Nature of Easements" - Unless otherwise set forth
herein, any easement reserved to Declarant herein shall be non-
exclusive. .
Section 13-3. "Rights and Duties: Utilities and Cable Television" -
Wherever sanitary sewer house connections, water house connections,
electricity., gas, telephone and cable television lines or drainage
facilities are installed within the Covered Property, the Owners of
any Residence.servedby said connections, lines or facilities,
or the Master Association if said connections, lines or facilities
serve the Community Facilities, shall have the right, and there is
hereby reserved to Declarant, together with the right to grant and
transfer the same to Owners and the Master Association, an easement
to the full extent necessary for the full use and enjoyment of such
portion of such connections which service his Residence, or the
Community Facilities, as the case may be, and to enter upon the
Community Facilities and the Residences owned by others, or to have
utility companies enter upon the Community Facilities and Resi-
dences owned by others, in or upon which said connections, lines
or facilities, or any portion thereof lie, to repair, replace and
generally maintain said connections as and when the same may be
necessary as set forth below, provided that such Owner or the
Master Association or utility company shall promptly repair any
damage to a Residence or the Community Facilities caused by such
entry, as promptly as possible after completion of work. thereon.
Section 13-4. "Utilities" - Easements' over the Covered Property
for the installation and maintenance of electric, telephone, cable
television, water, gas, sanitary sewer lines and drainage facili-
ties as are needed to service the Covered Property are hereby
reserved by Declarant, together with the right to grant and
transfer the same; provided, however, such easements shall not
unreasonably interfere with the use and enjoyment by the Members
of their Residences or the Community Facilities.
Section 13-5. "Cable Television" - There is hereby reserved to
Declarant, over the Covered Property, together with the right to
grant and transfer the same, the right to emplace on, under or
across the Covered Property transmission lines and other facili-
ties for a community antenna television system and thereafter to
own and convey such lines and facilities and the right to enter
upon the Covered Property to service, maintain, repair, reconstruct
and replace said lines or facilities; provided, however, that
the exercise of such rights shall not unreasonably interfere
with any Owner's reasonable use and enjoyment of his Residence.
-35-
Section 13-6. "Utilities Shown on Tract Map" - There is hereby
reserved to Declarant together with the right to grant and
transfer the same, easements over the Covered Property for the
installation and maintenance of electric, telephone, cable tele-
vision, water, gas, sanitary sewer lines and drainage facilities
as shown on the-recorded tract maps covering the Covered Property.
Section 13-7. "Construction and Sales" - There is hereby reserved
to Declarant, together with the right to grant and transfer the
same to Declarant's sales agents and representatives and prospective
purchasers of-Residences, over the Covered Property as the same may
from time to time exist, easements for construction, display,
maintenance, sales and exhibit purposes in connection with the
erection and sale or lease of Residences within the Covered
Property; provided, however that such use shall not be for a
period beyond five (5) years from the anniversary of recording
this Declaration for-the first phase of the development, and
three (3) years of the anniversary of recording an annexation
declaration for the most recently annexed phase, whichever occurs
first, and provided further that no such use by Declarant and others
shall otherwise restrict the Members in the reasonable use and - -
enjoyment of the Covered Property. -
Section 13-8. "Slopes" - There is hereby reserved to Declarant,
together with the right to grant and transfer the same to the
Master Association, an easement to enter upon the Lot owned
by each Owner, or to have agents enter upon said Owner's Lot -
to generally maintain and repair the Slopes adjoining said Owner's
Lot.
Section 13-9. "Easements for Certain Residences" - Declarant
reserves, together with the right to grant and transfer the same
to Owners the easements described on Exhibit "D" attached
hereto, for the purpose of ingress and egress to maintain and
repair certain residences which are located on lot lines as
set forth on Exhibit"D". Said easements shall not unreasonably
interfere with the use and enjoyment of the servient tenement's
property. -
Section 13-10. "Community Facilities Easements" - There is hereby
reserved to Declarant, together with the right to grant and transfer
the same to the Owners, a non-exclusive easement for ingress and
egress and recreational purposes over the Community Facilities.
Such easement when granted to Owners shall be subject to the
rights of the Master Association with regard to the Community
Facilities as set forth in the Article hereof entitled "Rights
of Enjoyment".
Section 13-11. "Master Association
reserved to the Declarant easements
together with the right and obligat
same to the Master Association, for
Master Association to discharge its
this Declaration.
Rights" - There is hereby
over the Covered Property,
ion to grant and transfer the
the purpose of permitting the
obligations as described in
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ARTICLE XIV
Annexations
The real property described on Exhibit "E" (hereinafter in this
Article referred to as the "Annexation Property") and/or any
other real property may be annexed to and become subject to this
Declaration by any of the methods set forth hereinafter in this
Article, as follows:.
Section 14-1. "Development of the Covered Property" - Declarant
intends to sequentially develop the Annexation Property on a
phased basis; however, Declarant may elect not to develop all or
any part of such real property, to annex such real property to
this Declaration in increments of any size whatsoever, or to
develop more than one such increment at any given time and in any
given order. Moreover, Declarant reserves the right to subject
all or any portion of the Annexation Property to the plan of this
Declaration or one, or more separate declarations of convenants,
conditions and restrictions which subjects said property to the
jurisdiction and powers of a homeowners association or other
entity with powers and obligations similar to the Master Associ-
ation and which is not subject to the provisions of this Declara-
tion. Although Declarant shall have the ability to annex the
Annexation Property as provided in this Article, Declarant shall
not be obligated to annex all or any portion of such property,
and such property shall not become subject to this Declaration
unless and until a Supplementary Declaration shall have been so
executed and recorded.
Section 14-2. "Supplementary Declarations" - A Supplementary
Declaration shall be a writing in recordable form which annexes
real property to the plan of this Declaration and which incor -
portates by reference all of the covenants, conditions,
restrictions, easements and other provisions of this Declaration
and shall contain such other provisions as set forth in this
Declaration relating to Supplementary Declarations. Such
Supplementary Declarations.contemplated 'above may contain such
complementary additions and modifications of the .covenants,
conditions and restrictions contained in this Declaration as
may be necessary to reflect the different character, if any, of
the annexed property and as are not inconsistent with the plan
of this Declaration. In no event, however, shall any such
Supplementary Declaration, or any merger or consolidation,
revoke, modify, or add to the covenants established by this
Declaration with respect to the existing property.
Section 14-3. "Annexation Without Approval and Pursuant to
General Plan" - All or any part of the Annexation Property may
be annexed to and become subject to this Declaration and subject
to the jurisdiction of the Master Association without the approval,
assent or vote of the Master Association or its Members, provided
-37-
that a Supplementary Declaration covering the portion of the
Annexation Property to be annexed shall be executed and recorded
by Declarant; provided, however, no Supplementary Declaration
shall be so executed and recorded pursuant to this Section more
than three (3) years (i) subsequent to the recordation of this
Declaration, or (ii) subsequent to the last recordation of a
Supplementary Declaration, whichever of (i) or (ii) shall have
later occurred. The recordation of said Supplementary Declara-
tion shall constitute and effectuate the annexation of the said
real property described therein making said real property subject
to this Declaration and subject to the functions, powers and
jurisdiction of the Master Association, and thereafter said
annexed real property shall be part of the Covered Property and
all of the Owners of Residences in said annexed real property
shall automatically be Members. .
Section 14-4. "Annexation Pursuant to Approval" - Upon approval
in writing of the Master Association, pursuant to two-thirds
(2/3) majority of the voting power of each class Of its Members,
or the written assent of such Members, excluding the voting power.
or written assent of the owner of any of the real property
sought to be annexed, any person who desires to add real property,
other than the Annexation Property, to the plan of this Declaration
and to subject such property to the jurisdiction of the Master
Association, may file or record a Supplementary Declaration. The
provisions of this Section shall also apply to the Annexation
Property subsequent to the expiration of the power of Declarant
to annex such property without the approval of the Members as
provided in this Article. The certificate of the President and
the Secretary of the Master Association attached to any Supplement-
ary Declaration recorded pursuant to this Section certifying that
the required two-thirds (2/3) majority-of the voting power of
each class of Members has approved the recordation of such
Supplementary Declaration shall be deemed conclusive proof thereof.
Section 14-5. ."Mergers of Consolidations" - Upon a merger or con-
solidation of the Master Association with another association,
which merger or consolidation must be approved by two-thirds (2/3).
of each class of Members, the Master Association's properties,
rights and obligations may, by operation of law, be transferred
to the 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 Master Association as a surviving corporation
pursuant to a merger. The surviving or consolidated association
may administer the covenants, conditions and restrictions
established by this Declaration within the Covered Property,
together with the covenants and restrictions established upon any
other property as one plan.
Section 14-6. "Limitation Upon Annexation" - Notwithstanding the
foregoing Sections of this Article, no annexation of additional
real property to this Declaration, unless there has been approval
thereof by a majority of the voting power of the Master Association,
shall have the effect of either overburdening the common interests
of the then existing Owners, except as set forth in this Declara-
tion or substantially increasing the Assessments of such Owners if
such increase has not been disclosed in the California Department
of Real Estate's Final Subdivision Public Report applicable to
such Owner's Residence.
Section 14-7. "Expansion of Association Membership" - Membership
shall be expanded to include owners within annexed phases of the
development.
Section 14-8. "improvements on Future Phases of Development" -
Declarant expressly makes no representations or warranties in
connection with improvements constructed on lots within future
phases of the development. Declarant makes no guarantee that it
will build similar or comparable improvements on lots within
future phases of the development. Declarant expressly reserves
the right to change the style, quality, size and cost of said
improvements from those constructed in the first phase of the
development, or any other phase.
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ARTICLE XV
Rights of Mortgagees
Section 15-1 . "Applicability" - Notwithstanding any and
all provisions hereof to the contrary, mortgagees shall have
the rights set forth in this Article XV.
Section 15-2. "Notification of Default to Lender" - A
"mortgagee" at its written request is entitled to written
notification from the Association of any default by the
mortgagor of a lot in the performance of such mortgagor's
obligations under the "enabling documents" (meaning collectively
the within instrument, the articles, bylaws, Association
rules and board resolutions) which is not cured within sixty
(60) days.
Section 15-3. "Exemption from Unpaid Assessments" - Any
mortgagee who comes into title or possession of a lot pur-
suant to the remedies provided in the mortgage, or by foreclosure
of the mortgage, or as may otherwise be provided in this
Declaration, shall take the property free of any claims for,
and shall not be liable for, unpaid assessments or charges
against the mortgaged 1t which accrued prior to the time
such mortgagee came into title or possession of the lot.
Section 15-4. "Prohibited Actions Without Owner Approval" -
Unless at least seventy-five percent (75 9o) of mortgagees of
lots have given their prior written consent, the Association
and the owners shall not be entitled to:
(a) By act or omission seek to abandon, partition,
release, subdivide, encumber, sell or transfer the common
area or any improvements thereon which are owned, directly
or indirectly, by the Association. The granting of easements
for public utilities or for other public purposes consistent
with the intended use of the common area by the Association
shall not be deemed a transfer within the meaning of these
provisions;
(b) change the method of determining the obligations,
assessments (whether annual or special), dues or other
charges which may be levied against an owner of his lot;
-40-
(c) by act or omission, change, waive or abandon any
scheme of regulations, or enforcement thereof, pertaining to
the architectural design or the exterior appearance of
improvements constructed upon lots, the exterior maintenance
of such improvements, or the maintenance and upkeep of the
common area, including improvements, lawns and plantings
located thereon;
(d) fail to maintain fire and extended coverage on
insurable portions of the common area on a current replacement
cost basis in an amount not less than one hundred percent
(100%) of the insurable value (based on current replacement
cost);
(e) use hazard insurance proceeds for losses to any
improvements of the common area for other than the repair,
replacement or reconstruction of such improvements.
Section 15-5. "Right to Operating Information" - Mortgagees
of lots shall be entitled to inspect the books and records
of the Association during normal business hours.
Section 15-6. "Priority Rights of Lenders" - Nothing in the
enabling documents shall be construed as giving any owner or
any other party priority over any rights of mortgagees of
lots pursuant to their respective mortgages in the case of a
distribution to owners or the Association of insurance
proceeds or condemnation awards for losses to or a taking of
all or any portion of the common area.
Section 15-7. "Damage, Destruction" - If any lot or portion
thereof or the common area or any portion thereof is substantially
damaged or destroyed or is made the subject matter of any ,
condemnation or eminent domain proceedings, or is otherwise
sought to be acquired by a condemning authority, the Association
shall promptly notify all mortgagees affected by such
destruction, taking or threatened action.
Section 15-8. "Payment of Delinquent Taxes and Charges" -
Mortgagees may, jointly or singly, pay taxes or other charges
which are in default and which may or have become a charge
against the common area and may pay overdue premiums on
hazard insurance policies, or secure new hazard insurance
coverage on the lapse of a policy, covering the common area;
and mortgagees making such payments shall be owed immediate
reimbursement therefor from the Association. In this regard,
the Association, acting by and through its board, is hereby
expressly empowered and authorized to enter into an agreement
in favor of all mortgagees respecting such reimbursement, and
by the recordation of this Declaration, shall be deemed to
have agreed to such reimbursement of all mortgagees.
-41-
Section 15-9. "Reserve Fund" - Assessments shall include an
adequate reserve fund for maintenance, repairs and replacement
of those improvements constructed upon the common area which
must be replaced on a periodic basis, and such reserve must
be funded by regular assessments collected on a monthly
basis rather than by special assessments.
Section 15-10.. "Insurance" - The Association shall continuously
maintain, in effect casualty, flood and liability insurance
and a fidelity bond meeting the insurance and fidelity bond
requirements for planned unit development projects established
by FHLMC, FNMA and the Government National Mortgage Association
("GNMA") so long as any one of the foregoing is a mortgagee
or owner of a lot within the properties, except to the
extent such coverage is not available or has been waived in
writing by FHLMC and by FNMA or GNMA.
Section 15-11. "Effect of Breach" - No breach of the covenants,
conditions or restrictions contained in this Declaration,
nor the enforcement of any lien provisions herein, shall
affect, impair, defeat or render invalid the lien or charge
or any mortgage or deed of trust made in good faith and for
value encumbering any lot, but this Declaration shall be
binding upon and effective against any owner whose title is
derived through foreclosure or trustee's sale, or otherwise,
with respect to a lot, except as otherwise provided in this'
Article.
-42-
ARTICLE XVI
General Provisions
Section 16-1. "Enforcement" - The Master Association, or any
Owner, shall have the right to enforce by proceedings at law
or in equity, all restrictions, conditions, covenants and
reservations now or hereafter imposed by the provisions of
this Declaration or any amendment hereto, including the right
to prevent the violation of any such restrictions, conditions,
covenants, or reservations and the right to recover damages or
other dues for such violation. The Master Association or any
Owner shall also have the right to enforce by proceedings at
law or in equity the provisions of the Articles or Bylaws and
any. amendments thereto. With respect to Assessment liens or
any other liens or charges and Association Rules, the Master
Association shall have the exclusive right to the enforcement
thereof.
Section 16-2. "No Waiver" - Failure by the Master Association
or by any Member to enforce any covenant, condition, or restric-
tion herein contained, or the Articles, Bylaws or Association
Rules, in any certain instance or on any particular occasion
shall not be deemed a waiver of such right on any such future
breach of the same covenant, condition or restriction.
Section 16-3. "Cumulative Remedies" - All rights, options and
remedies of Declarant, the Master Association, the Owners or
Mortgagees under this Declaration are cumulative, and no one of
them shall be exclusive of any other, and Declarant, the Master
Association, the Owners and the Mortgageees shall have the right
to pursue any one or all of such rights, options and remedies or
any other remedy or relief which may be provided by law, whether
or not stated in this Declaration.
Section 16-4. "Severability" - Invalidation of any one or a
portion of these covenants, conditions or restrictions by
judgment or court order shall in no way affect any other provi-
sions which shall remain in full force and effect.
Section 16-5. "Covenants to Run with the Land; Term" - The
covenants, conditions and restrictions of this Declaration shall
run with and bind the Covered Property and shall inure to the
benefit of and be enforceable by the Master Association or any
Owner, their respective legal representatives, heirs, successors
and assigns, for a term of sixty (60) years from the date this
Declaration is recorded, after which time said covenants, condi-
tions and restrictions shall be automatically extended for a
successive period of ten (10) years, unless an instrument, signed
by a majority of the then Owners and a majority of the
Mortgagees, based on one (1) vote for each Mortgagee held,
has been recorded at least six (6) months prior to the end
of any such period, agreeing to change said covenants,
conditions and restrictions in whole or in part.
-43-
Section 16-6. "Construction" - The provisions of this Declaration
shall be liberally construed to effectuate its purpose of creating
a plan for the development of a residential community or tract and
for the maintenance of the Covered Property. The Article and
Section headings have been inserted for convenience only, and shall
not be considered or referred to in resolving questions of inter-
pretation or construction.
Section 16-7. "Singular Includes Plural" - Whenever the context
of this Declaration requires same, the singular shall include the
plural and the masculine shall include the feminine and the neuter.
Section 16-8. "Nuisance" - The result of every act or omission,
whereby any provision, condition, restriction, covenant, easement,
or reservation contained in this Declaration is violated in whole
or in part, is hereby declared to be and constitutes a nuisance,
and every remedy allowed by law or equity against a nuisance,
either public or private, shall be applicable against every such
result, and may be exercised by the Master Association or any
Member. Such remedy shall be deemed cumulative and not exclusive.
Section 16-9. "Attorneys' Fees" - In the event action is insti-
tuted to enforce any of the provisions contained in this Declara-
tion, the party prevailing in such action shall be entitled to
recover from the other party thereto as part of the judgment,
actual attorneys' fees and costs of such suit.
Section 16-10. "Notices" - Any notice to be given to an Owner or
a Mortgagee or mortgage servicing contractor under the provisions
of this Declaration shall be in writing and may be delivered as
follows:
(a) Notice to an Owner shall be deemed to have been properly
delivered when delivered personally or placed in the United States
mail, first class postage prepaid, to the most recent address
furnished by such Owner in writing to the Master Association for
the purpose of giving notice, or if no such address shall have
been furnished, then to the street address of such Owner's Residence.
Any such notice deposited in the mail within San Diego County,
California, shall be deemed delivered forty-eight (48) hours after
such deposit. In the case of co-Owners, any such notice may be
delivered or sent to any one of the co-Owners on behalf of all
co-Owners and shall constitute delivery on all such co-Owners.
(b) Notice to a Mortgagee or its mortgage servicing contractor
shall be deemed to have been properly delivered when placed in the
United States mailt first class postage prepaid, to the address
furnished to the Master Association by such Mortgagee or such
contractor or, if no such address is furnished, to any
office of the Mortgagee in San Diego County, California, or,
if no such office is located in said County, to any office
of such Mortgagee.
-44-
(c) The affidavit of an officer or authorized agent of
the Master Association declaring under penalty of perjury that
a notice has been mailed to any Owner or Owners, to any Mortgagee
or Mortgagees, or to all Members or all Mortgagees, to the address
or addresses shown on the records of the Master Association, shall
be deemed conclusive proof of such mailing, whether or not such
notices are actually received.
Section 16-11. "Obligation of Declarant" - So long as Declarant
is utilizing the easement described in the Section entitled
"Construction and Sales" of the Article in this Declaration
entitled "Easements", Declarant shall not be subject to the
provisions of the Article entitled "Architectural Control" or
the provisions of the Article entitled "Use Restrictions".
Section 16-12. "Effect of Declaration" - This Declaration is made
for the purposes set forth in the Recitals to this Declaration and
Declarant makes no warranties or representations, express or
implied, as to the binding effect or enforceability of all or
any portion of this Declaration, or as to the compliance of any
of these provisions with public laws, ordinances and regulations
applicable thereto.
Section 16-13. "Personal Covenant" - To the extent the acceptance
of a conveyance of a Residence creates a personal covenant between
the Owner of such Residence and Declarant or other Owners, such
personal covenant shall terminate and be of no further force or
effect from and after the date when a person or entity ceases to
be an Owner except to the extent this Declaration may provide
otherwise with respect to the payment of money to the Master
Association.
Section 16-14. "Nonliability of Officials" - To the fullest extent
permitted by law, neither the Board, the Architectural Committee,
or any other committees of the Master Association or any member
of such Board or committee shall be liable to the Master Associa-
tion or any Member for any damage, loss or prejudice suffered or
claimed on account of any decision, approval or disapproval of
plans or specifications (whether or not defective), course of
action, act, omission, error, negligence or the like made in good
faith within which such Board, committees or persons reasonably
believed to be the scope of their duties.
Section 16-15. "Enforcement of Bonded Obligations" - In the event
that the improvements to the Community Facilities have not been
completed prior to the issuance of a Final Subdivision Public
Report covering the Covered Property by the Department of Real
Estate of the State of California, and the Master Association is
obligee under a bond or other arrangement (hereinafter the "Bond")
to secure performance of the commitment of Declarant to complete
such improvements, the following provisions shall apply:
-45-
(a) The Board shall consider and vote on the question of
action by the Master Association to enforce the obligations under
the Bond with respect to any improvements for which a Notice of
Completion has not been filed within sixty (60) days after the
completion date specified for such improvements in the Planned
Construction Statement appended to the Bond. If the Master
Association has given an extension in writing for the completion
of any Community Facilities improvement, the Board shall consider
and vote on the aforesaid question if a Notice of Completion has
not been filed within thirty (30) days after the expiration of
such extension.
(b) In the event that the Board determines not to initiate
action to enforce the obligations under the Bond, or in the event
the Board fails to consider and vote on such question as provided
above, then on the petition in writing to the Bord signed by
Members of the Master Association representing not less than five
percent (5%) of the total voting power of the Master Association,
the Board shall call a special meeting of the Members for the
purpose of voting to override such decision or such failure to
act by the Board. Such meeting shall be called according to the
provisions of the Bylaws dealing with meetings of the Members,
but in any event such meeting shall be held not less than thirty-
five (35) days nor more than forty-five (45) days after receipt
by the Board of said petition.
(c) The only Members entitled to vote at such meeting of
Members shall be the Owners other than Declarant. A vote at such
meeting of a majority of the voting power of such Members other
than Declarant to take action to enforce the obligations under
the Bond shall be deemed to be the decision of the Master Associ-
ation and the Board shall thereafter implement such decision by
initiating and pursuing appropriate action in the name of the
Master Association.
Section 16-16. "Construction by Declarant" - Nothing in this
Declaration shall limit the right of Declarant to alter the
Community Facilities or the Residences, or to construct such
additional improvements as Declarant deems advisable prior to
completion of improvements upon and sale of the entire Covered
Property. Such right shall include but shall not be limited to
erecting, constructing and maintaining on the Covered Property
such structures and displays as may be reasonably necessary for
the conduct of the business or completing the work and disposing
of the same by sale, lease or otherwise. This Declaration shall
not limit the right of Declarant at any time prior to acquisition
of title by a purchaser from Declarant to establish on the Covered
Property additional licenses, reservations and rights-of-way to
itself, to utility companies, or to others as may from time to
time be reasonably necessary to the proper development and
disposal of the Covered Property. Declarant reserves the right
-46-
to alter its construction plans and designs as it deems appropriate.
The rights of Declarant hereunder may be assigned to any successor
or successors to all or part of said entity's respective interest
in the Covered Property, by an express assignment incorporated in
a recorded deed or lease, as the case may be, transferring such
interest to such successor. Declarant shall exercise its rights
contained in this provision in such a way as not to unreasonably
interfere with the Members' rights to use and enjoy the Covered
Property.
Section 16-17. "Amendments" - Subject to the other provisions of
this Declaration, including, without limitation, the rights of
Mortgagees pursuant to the Articles hereof entitled "Insurance"
and "Rights of Lenders", or otherwise, this Declaration may be
amended as follows:
(a) Until such time as there is a Class A membership, this
Declaration may be cancelled or amended by Declarant. Thereafter,
as long as there is a Class B membership, any amendments shall
require the affirmative vote or written assent of fifty-one
percent (51%) of each class of Members. After the Class B
membership has been converted to Class A membership, amendments
to the Declaration may be enacted by the vote or written
assent of a bare majority which is not more than seventy-
five percent (75%) of the total voting power of the Master
Association; and (ii) at least a bare majority of the votes
of Members other than Declarant.
(b) In addition to the foregoing, any amendment or
modification of the Articles hereof entitled "Covenant for
Maintenance Assessments", "Nonpayment of Assessments",
"Architectural Control", "Repair and Maintenance", "Destruction
of Improvements", and "Eminent Domain" shall additionally
require the prior written approval of not less than seventy-
five percent (75%) of the Members other than Declarant.
(c) An amendment or modification that requires the vote and
written assent of the Members as hereinabove provided shall be
effective when executed by the President and Secretary of the
Master Association who shall certify that the amendment or
modification has been approved as hereinabove provided, and when
recorded in the Official Records of San Diego County, California.
(d) Notwithstanding the foregoing, any provision of this
Declaration, or the Articles, Bylaws or Association Rules which
expressly requires the approval of a specified percentage of the
voting power of the Master Association for action to be taken
under said provision can be amended only with the affirmative vote
or written assent of not less than the same percentage of the
voting power of the Master Association.
-47-
ARTICLE XVII
Automatic Amendments and Other Effects
of Federal Programs
Section 17-1. "Amendments to Conform with Mortgagee
Requirements". It is the intent of Declarant that this Declara-
tion and the articles and bylaws of the Master Association, and
the development in general, shall now and in the future meet all
requirements necessary to purchase, guarantee, insure or subsidize
any mortgage of a condominium in the development by the Federal
Home Loan Mortgage Corporation, the Federal National Mortgage
Association, the Federal Housing Administration and the Veterans'
Administration. In furtherance of that intent, Declarant expressly
reserves the right and shall be entitled by unilateral amendment
of the Declaration so long as Declarant owns more than twenty-five
percent (25%) of the residences in the development to amend this
Declaration in order to incorporate any provisions or to enter
into any agreement on behalf and in the name of the Master Associ-
ation that are, in the opinion of any of the cited entitites or
governmental agencies, required to conform the Declaration, the
articles, the bylaws or the development to the requirements of
any of the entities or governmental agencies, including without
limitation, the execution on behalf of and in the name of the
Master Association of a regulatory agreement between the Master
Association and the Federal Housing Cornmisioner and any other
agreement sufficient to satisfy the requirements for mortgage
purchase, guarantee or insurance by any of said entities or
agencies. Declarant is hereby granted an irrevocable power of
attorney to execute any such amendment or agreement by and in
the name of the Master Association. Any such provision shall
first be approved by the California Department of Real Estate in
connection with its issuance of a final subdivision public report
or amendment to it with respect to the development. Each owner
of a residence and each mortagee of a residence by acceptance of
a deed or encumbrance of a residence consents to the incorporation
in this Declaration of any such provision and to the execution of
any amendment or regulatory agreement and agrees to be bound by
any such provisions as if they were incorporated in this Declaration.
The board and each owner shall take any action or shall adopt any
resolutions required by Declarant or any mortgagee to conform this
Declaration or the development to the requirements of any of
said entities or agencies.
CEM
IN WITNESS WHEREOF, the undersigned has executed
this Declaration as of the date first set forth.
TAMARACK POINTE VENTURE,
A California joint venture
BY: GLENFED DEVELOPMENT CORPORATION,
A California corporation
By:
Mel Wynn
Its: President
BY: THE WOODWARD COMPANIES, INC.
A California corporation
By:
Don E. Woodward
Its: President
STATE OF CALIFORNIA )
ss.
COUNTY OF
On , 1985, before me, the
undersigned, a Notary Public in and for said State, personally
appeared Mel Wynn, personally known to me or proved to me on
the basis of satisfactory evidence to be the person who executed
the within instrument as President or on behalf of GLENFED
DEVELOPMENT CORPORATION, the corporation therein named, and
acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
-49-
STATE OF CALIFORNIA )
ss.
COUNTY OF
On , 1985, before me, the
undersigned, a Notary Public in and for said State, personally
appeared Don E. Woodward, personally known to me or proved to
me on the basis of satisfactory evidence to be the person who
executed the within instrument as President or on behalf of
THE WOODWARD COMPANIES, INC., the corporation therein named,
and acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
-50-
EXHIBIT "A"
LEGAL DESCRIPTION OF THE COVERED PROPERTY
-51-
EXHIBIT "B"
LEGAL DESCRIPTION OF THE COMMUNITY FACILITIES
-52-
EXHIBIT "C"
SLOPES
-53-
EXHIBIT "D"
EASEMENTS FOR CERTAIN OWNERS
ZERO LOT LINE
-54-
EXHIBIT "E"
PROPERTY SUBJECT TO ANNEXATION:
-55-
P1-N6. p9LE;
ARTICLES OF INCORPORATION
OF
TAMARACK POINTE TOWNHOMES HOMEOWNERS ASSOCIATION
FIRST: The name of this corporation is TAMARACK POINTE
TOWNHOMES HOMEOWNERS ASSOCIATION.
SECOND: This corporation is a nonprofit mutual
benefit corporation orqanized under the Nonprofit Mutual
Benefit Corporation Law. The purpose of this corporation is
to enqaqe in any lawful act or activity for which a corpora-
tion may be orqanized under such law.
THIRD: The specific and primary purposes for
which this corporation is formed are to provide for the
maintenance, preservation and architectural control of a
Condominium Project located in the City of Carlsbad, County
of San Dieqo, State of California.
FOURTH: The name and business address in the
State of California of this corporation's initial agent for
service of process is:
Scott E. Woodward
The Woodward Companies
5100 Campus Drive
Newport Beach, California 92660
FIFTH: The number and manner in which directors
shall be chosen and removed from office, their qualifications,
powers, duties, compensation, and tenure of office, the
manner of filling vacancies on the board, and the manner of
calling and holding meetings of directors, shall be as
stated in the Bylaws.
SIXTH: The authorized number, if any, and qualifica-
tions of members of this corporation, the different classes
of membership, if any, the property, voting and other rights
and privileges of members, liability for dues and assessments
and the method of collecting same, and the transfer of
membership shall be as stated in the Bylaws.
SEVENTH: The directors shall serve without compen-
sation, and no director shall receive any pecuniary benefit
as a direct result of being a director of this corporation.
EIGHTH: The powers of this corporation shall be
exercised, its property controlled, and its affairs conducted
by the Board of Directors, as set forth in the Bylaws.
NINTH: Neither the directors nor the members of
this corporation shall be personally liable for the debts,
liabilities, or obligations of the corporation.
TENTH: Notwithstanding any of the above statements
of purposes and powers, this corporation shall not, except
to an insubstantial degree, engage in any activities or
exercise any powers that are not in furtherance of the
specific purposes of this corporation.
ELEVENTH: Amendment of these articles shall
require the vote or written consent of a bare majority of
the Board of Directors, a bare majority of the voting power
of the corporation, and a bare majority of the voting power
-2-
of members of this corporation other than the declarant;
provided, however, if the two-class voting structure is
still in effect as provided in the Bylaws, these articles
may not be amended without the vote or written assent of a
majority of each class of membership.
DATED: , 1985
SCOTT E. WOODWARD
I hereby declare that I am the person who executed
the foregoing Articles of Incorporation, which execution is
my act and deed.
SCOTT E. WOODWARD
J1 PLNC FiLt
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS ESTABLISHING A PLAN
OF CONDOMINIUM OWNERSHIP
FOR
TAMARACK POINTE TOWNHOMES HOMEOWNERS ASSOCIATION
PAGE
ARTICLE I - DEFINITIONS 3-4
ARTICLE II - DESCRIPTION OF COMMON INTERESTS, PROPERTY
RIGHTS, RIGHTS OF ENJOYMENT AND EASEMENTS
Section 2.1 - Ownership of Condominium 5
Section 2.2 - Reservation of Easements 5
Section 2.3 - Owners Non-Exclusive Easements of
Enjoyment, etc. 6
Section 2.4 - Delegation of Use; Contract Purchasers;
Tenants 7
Section 2.5 - Minor Encroachments 7
Section 2.6 - Easements Granted by Association 8
ARTICLE III - USE RESTRICTIONS
Section 3.1 - Residential Use 9
Section 3.2 - Commercial Use 9
Section 3.3 - Window Coverings 9
Section 3.4 - Oil Drilling 9
Section 3.5 - Offensive Conduct; Nuisances 9
Section 3.6 - Parking Restrictions; Use of Garage 9
Section 3.7 - Signs 10
Section 3.8 - Antennae, External Fixtures, etc. 10
Section 3.9 - Fences, etc. 10
Section 3.10 - Animals 10
Section 3.11 - Restricted Use of Recreation Vehicles, etc. 11
Section 3.12 - Trash Disposal 11
Section 3.13 - Outside Drying and Laundering 11
Section 3.14 - Structural Alterations 11
Section 3.15 - Exterior Alterations 11
Section 3.16 - Compliance with Laws, etc. 11
Section 3.17 - Indemnification 11
Section 3.18 - Owner's Obligation for Taxes 12
Section 3.19 - Future Construction 12
Section 3.20 - Enforcement 12
Section 3.21 - Balconies and Courtyards 12
ARTICLE IV - THE ASSOCIATION
Section 4.1 - Formation 13
Section 4.2 - Association Action; Board of Directors
and Officers; Members' Approval 13
E.P4.1:I:I
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ESTABLISHING A
PLAN OF CONDOMINIUM OWNERSHIP FOR TAMARACK POINTE TOWNHOMES
HOMEOWNERS ASSOCIATION
Page 2
PAGE
Section 4.3 - Powers of the Association 13
Section 4.4 - Duties of the Association 15
Section 4.5 - Limitations on Authority of Board 17
Section 4.6 - Personal Liability 18
ARTICLE V - MEMBERSHIP AND VOTING RIGHTS
Section 5.1 - Membership Qualifications 19
Section 5.2 - Members' Rights and Duties 19
Section 5.3 - Transfer of Membership 19
Section 5.4 - Classes of Voting Membership 19
Section 5.5 - Special Class A Voting Rights 20
Section 5.6 - Vote of Two Classes as Prerequisite 20
Section 5.7 - Joint Owner Votes 20
Section 5.8 - Cumulative Voting 21
Section 5.9 - Suspension and Penalties 21
ARTICLE VI - ASSESSMENTS
Section 6.1 - Agreement to Pay 22
Section 6.2 - Personal Obligations 22
Section 6.3 - Purpose of Assessments 22
Section 6.4 - Regular Assessments 22
Section 6.5 - Special Assessments 24
Section 6.6 - Limitation Respecting Special Assessments 24
Section 6.7 - Uniform Rate of Regular Assessments 25
Section 6.8 - Cornmencment of Regular Assessments;
Assessment Period 25
Section 6.9 - Notice and Assessment; Installment Due Dates 25
Section 6.10 - Certificate of Payment 26
Section 6.11 - Subordination of the Lien to Mortgages 26
ARTICLE VII - COLLECTION OF ASSESSMENTS: LIENS
Section 7.1 - Rights to Enforce 27
Section 7.2 - Creation of Lien 27
Section 7.3 - Notice of Default; Foreclosure 27
Section 7.4 - Waiver of Exemption 28
ARTICLE VIII - INSURANCE
Section 8.1 - Liability Insurance 29
Section 8.2 - Fire and Extended Coverage Insurance 29
¼
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ESTABLISHING A
PLAN OF CONDOMINIUM OWNERSHIP FOR TAMARACK POINTE TOWNHOMES
HOMEOWNERS ASSOCIATION
Page 3
PAGE
Section 8.3 - Individual Fire Insurance Limited 29
Section 8.4 - Trustee 30
Section 8.5 - Other Insurance 30
Section 8.6 - Owner's Insurance 30
Section 8.7 - Adjustment of Losses 30
Section 8.8 - Distribution to Mortgagees 30
ARTICLE IX - DESTRUCTION OF IMPROVEMENTS
Section 9.1 - Restoration of Development 31
Section 9.2 - Automatic Reconstruction 31
Section 9.3 - Vote of Members 31
Section 9.4 - Sale of Project 31
Section 9.5 - Right to Partition 32
Section 9.6 - Interior Damage 32
Section 9.7 - Notice to Unit Owners and Listed Mortgagees 32
ARTICLE X - CONDEMNATION 33
ARTICLE XI - PARTITION 34
ARTICLE XII - NON-SEVERABILITY OF COMPONENT
INTERESTS IN A CONDOMINIUM
Section 12.1 - Prohibition Against Severance 35
Section 12.2 - Conveyances 35
ARTICLE XIII - TERM OF DECLARATION 36
ARTICLE XIV - PROTECTION OF MORTGAGEES
Section 14.1 - Mortgage Permitted 37
Section 14.2 - Subordination 37
Section 14.3 - Amendment 37
Section 14.4 - Right to Examine Books and Records 38
Section 14.5 - Distribution of Insurance and Condemnation
Proceeds 38
Section 14.6 - Amenities 38
Section 14.7 - Notices to Mortgagees of Record 38
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ESTABLISHING
A PLAN OF CONDOMINIUM OWNERSHIP FOR TAMARACK POINTE TOWNHOMES
HOMEOWNERS ASSOCIATION
Page 4
PAGE
Section 14.8 - Payments by Mortgagees 38
Section 14.9 - Effect of Breach 39
Section 14.10 - Foreclosure 39
Section 14.11 - Non-Curable Breach 39
Section 14.12 - Loan to Facilitate 39
ARTICLE XV - AMENDMENT
Section 15.1 - Amendment Before the Close of First Sale 40
Section 15.2 - Amendment After Close of First Sale 40
Section 15.3 - Conflict with Article XIV or Other
Provision of this Declaration 40
Section 15.4 - Business and Professions Code Section 11018 41
Section 15.5 - Reliance on Amendments 41
Section 15.6 - Amendments to Conform with Mortgagee
Requirements 41
ARTICLE XVI - REPAIR AND MAINTENANCE
Section 16.1 - Repair and Maintenance of the Units by
Owners 42
Section 16.2 - Repair and Maintenance of Certain Common
Areas and Restricted Common Areas by or at
the Expense of Owners 42
Section 16.3 - Repair and Maintenance by the Association 43
ARTICLE XVII - ANNEXATION
Section 17.1 - Development of the Covered Property 44
Section 17.2 - Supplementary Declarations 44
Section 17.3 - Annexation Without Approval and Pursuant
to General Plan 44
Section 17.4 - Annexation Pursuant to Approval 45
Section 17.5 - Mergers or Consolidations 45
Section 17.6 - Limitation upon Annexation 45
Section 17.7 - No Obligation to Annex 46
Section 17.8 - Improvements on Future Phases of Develop-
ment 46
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ESTABLISHING
A PLAN OF CONDOMINIUM OWNERSHIP FOR TAMARACK POINTE TOWNHOMES
HOMEOWNERS ASSOCIATION
Page 5
PAGE
ARTICLE XVIII - GENERAL PROVISIONS
Section 18.1 - Headings 47
Section 18.2 - Severability 47
Section 18.3 - Cumulative Remedies 47
Section 18.4 - Violations as Nuisance 47
Section 18.5 - No Racial Restriction 47
Section 18.6 - Access to Books 47
Section 18.7 - Liberal Construction 47
Section 18.8 - Notification of Sale of Condominium 47
Section 18.9 - Number; Gender 48
Section 18.10 - Exhibits 48
Section 18.11 - Easements Reserved and Granted 48
Section 18.12 - Binding Effect 48
Section 18.13 - Unsegregated Real Estate Taxes 48
ARTICLE XIX - ARCHITECTURAL CONTROL 49
I-
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
TAMARACK POINTE VENTURE
5100 Campus Drive
Newport Beach, California 92660
Attn: Mr. Scott Woodward
DECLARATION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
ESTABLISHING A PLAN OF CONDOMINIUM OWNERSHIP
FOR
TAMARACK POINTE TOWNHOMES HOMEOWNERS ASSOCIATION
This declaration is made this day of
1985 by TAMARACK POINTE VENTURE, a California joint venture
("Declarant").
RECITALS:
A. Declarant is the owner of certain real property
located in the City of Carlsbad, County of San Diego, State of
California, described in Exhibit A attached hereto ("the Property").
B. Declarant has improved or intends to improve the
property by constructing improvements thereon consisting of
dwelling units and recreational and other facilities in accord-
ance with plans and specifications on file with the City of
Carlsbad, California.
C. By this Declaration, Declarant intends to establish
a plan of condominium ownership for the property.
DECLARATION:
Declarant declares that the property is, and shall be,
held, assigned, hypothecated, encumbered, leased, rented, used
and occupied subject to the following limitations, restrictions,
easements, covenants, conditions, liens and charges, all of which
are declared and agreed to be in furtherance of a plan of condo-
minium ownership as described in California Civil Code Sections
1350-1360 for the subdivision, improvement, protection, maintenance,
and sale of condominiums within the property, and all of which are
declared and agreed to be for the purpose of enhancing, maintaining
and protecting the value and attractiveness of the property. All
of the limitations, restrictions, easements, covenants, conditions,
liens and charges shall run with the land, shall be binding on and
inure to the benefit of the successors in interest of such parties.
Declarant further declares that it is the express intent that this
Declaration satisfy the requirements of California Civil Code,
Section 1355.
IWM
ARTICLE I
DEFINITIONS
Section 1.1 The "articles" mean the Association's
articles of incorporation and their amendments.
Section 1.2 The "Association" means the Tamarack
Pointe Townhomes Homeowners Association, a California
nonprofit mutual benefit corporation, its successors and
assigns.
Section 1.3 The "Association rules" means the
rules and regulations regulating the use and enjoyment of
the common area adopted by the board from time to time.
Section 1.4 The "board" means the board of directors
of the Association.
Section 1.5 The "bylaws" mean the Association's
bylaws and their amendments.
Section 1.6 The "common area" means the entire
development except all units as defined in this Declaration
or as shown on the condominium plan, and without limiting
the generality of the foregoing, specifically includes all
structural projections within a unit which are required for
the support of a condominium building, gas, water, waste
pipes, all sewers, all ducts, chutes, conduits, wires and
other utility installations of the structures wherever
located (except the outlets thereof when located within the
units), the land upon which the structures are located, the
air space above these structures, all bearing walls, columns,
floors, the roof, the foundation, common stairways, window
and skylight glass and the like, as well as private streets
and certain recreational facilities. Common area shall
specifically exclude all garage door opening systems, if
any, notwithstanding that the foregoing are located in the
common area. The common area upon which the recreational
facilities shall be constructed is described in Exhibit "B".
On or before the date of the first conveyance of a condominium
in the development by Declarant to an owner, Declarant shall
convey to the Association title to the real property described
in Exhibit "B", free and clear of all encumbrances and liens
other than those approved by the California Department of Real
Estate.
Section 1.7 The "restricted common area" shall
mean and include those portions of the common area over
which exclusive easements are reserved for the benefit of
certain owners, including, but not limited to
as those areas are described on the condominium plan.
Section 1.8 A "Condominium" means an estate in real
property as defined in California Civil Code, Section 783 consist-
ing of an undivided interest as a tenant in common in the common
area, together with an interest in a unit shown and described on
a condominium plan, and all easements appurtenant thereto.
Section 1.9 The "condominium plan" means the condominium
plan recorded pursuant to California Civil Code, Section 1351
respecting the development, and any amendments to the plan.
Section 1.10 The "Declarant" means Tamarack Pointe Venture,
a California joint venture, and its successors and assigns, if such
successors and assigns, acquire or hold record title to any portion
of the development for development purposes.
Section 1.11 The "development" means the property
divided or to be divided into condominiums, including the units,
and common area.
Section 1.12 The "Governing instruments" mean the
articles, bylaws, this Declaration and the Association rules.
Section 1.13 A "member" means every person or entity
who holds a membership in the Association.
Section 1.14 A "mortgage" means a mortgage or deed of
trust encumbering a condominium or other portion of the development.
A "mortgagee" shall include the beneficiary under a deed of trust.
An "institutional" mortgagee, is a mortgagee which is a bank or
savings and loan association or mortgage company or other entity
chartered or licensed under federal or state laws whose principal
business is lending money on the security of real property, or
any insurance company or any federal or state agency. A "first
mortgage" or "first mortgagee" is one having priority as to all
other mortgages or holders of mortgages encumbering the same
condominium or other portions of the development.
Section 1.15 An "owner" means each person or entity
holding a record ownership interest in a condominium, including
Declarant, and contract purchasers under recorded contracts.
"Owner" shall not include persons or entitites who hold an interest
in a condominium merely as security for the performance of an
obligation.
Section 1.16 A "unit" means the elements of a condominium
that are not owned in common with the other owners of condominiums
in the development, such units and their respective elements and
boundaries being shown and particularly described in the condominium
plan. In interpreting deeds and plans the existing physical
boundaries of a unit or of a unit reconstructed in substantial
accordance with the original plans shall be conclusively presumed
to be its boundaries rather than the description expressed in the
deeds or plans, regardless of minor variance between boundaries
shown on the plans or in the deed and those of the building and
regardless of settling or lateral movement of the building. When-
ever reference is made in this Declaration, in the condominium plan,
in any deed or elsewhere to a unit it shall be assumed that such
reference is made to the unit as a whole, including each of its
component elements, and to any and all exclusive easements appur-
tenant to such unit over common area, if any.
-4-
ARTICLE II
DESCRIPTION OF COMI4ON INTERESTS, PROPERTY
RIGHTS, RIGHTS OF ENJOYMENT AND EASEMENTS
Section 2.1 Ownership of Condominium. Ownership of
each condominium within the development shall include a unit, an
undivided interest in the common area, which undivided interest
shall be specified in the deed from Declarant to each owner and
which undivided interest cannot be altered or changed as long as
the prohibition against severability of component interests in a
condominium remains in effect as provided in this Declaration, a
membership in the Association, and any exclusive or non-exclusive
easement or easements appurtenant to such condominium over the
common area as described in this Declaration or the deed to the
condominium.
Section 2.2 Reservation of Easements. Declarant
expressly reserves for the benefit of the owners in the develop-
ment reciprocal, non-exclusive easements for access, ingress and
egress over all of the common area, which easements may be con-
veyed by Declarant to owners and to the Association for so long
as Declarant owns any interest in the development. Declarant
specifically reserves for the benefit of the owners in the
development reciprocal, non-exclusive easements for access,
ingress and egress and maintenance purposes over that portion of
the Property where that certain private storm drain system is
located as depicted on Exhibit "C" attached hereto. Subject to
the provisions of this Declaration governing use and enjoyment
thereof, such easements may be used by Declarant, its successors,
purchasers and all owners, their guests, tenants and invitees,
residing on or temporarily visiting the development, for recrea-
tional purposes, walkways, vehicular access and such other pur -
poses reasonably necessary for use and enjoyment of a condominium
in the development. Declarant expressly reserves for the benefit
of the board and all agents, officers and employees of the Associa-
tion non-exclusive easements over the common area as necessary to
maintain and repair the common area and to perform all other tasks
in accordance with the provisions of this Declaration. Such ease-
ments over the common area shall be appurtenant to and shall pass
with the title to every condominium conveyed. Declarant expressly
reserves for the benefit of certain owners exclusive easements for
the use of the restricted common area depicted on the condominium
plan for as assigned to particular owners for correspondingly
numbered units in the condominium plan and the individual deeds
of the respective condominiums. Declarant expressly reserves for
the benefit of the Association the right of Declarant to grant
additional easements and rights-of-way over the development to
utility companies and public agencies, as necessary for the proper
development and disposal of the development, until close of escrow
for the sale of the last condominium in the development from
Declarant to a purchaser pursuant to a Final Public Report issued
by the California Department of Real Estate. The board of the
Association, with a vote or written consent of a majority of both
the Class A and Class B members, shall have the right to grant
easements and rights-of-way over the common areas after the close
of escrow for the sale of the first condominium from the Declarant
-5-
in the development. Declarant, the Association and owners of
contiguous units shall have a reciprocal easement appurtenant
to each of the units over the units and the common area for the
purpose of (1) accommodating any existing encroachments of any
wall of the building, and (2) maintaining the same and accommoda-
ting authorized construction, reconstruction, repair, shifting,
movement or development housing their respective units. There
are specifically reserved for the benefit of the owners easements
and reciprocal negative easements for utility services and repairs,
replacement and maintenance of the same over all of the common
area. Such easements shall not unreasonably interfere with the use
and enjoyment by the owners of adjoining units.
Section 2.3 Owners Non-Exclusive Easements of Enjoyment,
etc. Every owner of a condominium shall have a non-exclusive ease-
ment of use and enjoyment in, to and throughout the common area for
ingress, egress and support over and through the common area; how-
ever, such non-exclusive easements shall be subordinate to, and
shall not interfere with, exclusive easements appurtenant to units
over the common area, if any. Each such non-exclusive easement
shall be appurtenant to and pass with the title to every condo-
minium, subject to the following rights and restrictions:
(a) The rights of the Association to limit the number
of guests, and to adopt and to enforce the Association rules.
(b) The right of the Association to charge reasonable
admission and other fees for use of any unassigned parking and
storage spaces and any recreational facility situated upon the
common area.
(c) The right of the Association to borrow money to
improve, repair or maintain the common area.
(d) The right of the Association to assign, rent,
license or otherwise designate and control use of unassigned
parking and storage spaces within the common area (other than
those portions subject to exclusive easements appurtenant to
units, if any).
(e) The right of the Association to impose monetary
penalties, temporary suspensions of an owner's rights as a member
of the Association or other appropriate discipline for failure to
comply with the governing instruments provided that the procedures
for notice and hearing, satisfying the minimum requirements of
Section 7341 of the Corporations Code, are followed with respect
to the accused members before a decision to impose discipline is
reached. Notwithstanding the foregoing, the Association has no
power to cause a forfeiture or abridgement of an owner's rights
to the full use and enjoyment of his individually-owned subdivision
interest on account of a failure by the owner to comply with provi-
sions of the government instruments or of duly-enacted rules of
I
operation for common area and facilities except where the loss or
forfeiture is the result of the judgment of a court or a decision
arising out of arbitration or on account of a foreclosure or sale
under a power of sale for failure of the owner to pay assessments
levied by the Association.
(f) The right of Declarant or its designees to enter on
the development to construct the development and to make repairs
and remedy construction defects if such entry shall not unreasonably
interfere with the use of any occupied unit unless authorized by
the unit owner.
(g) The right of the Association, or its agents, to
enter any unit to perform its obligations under this Declaration,
including obligations with respect to construction, maintenance
or repair for the benefit of the common area, or the owners in
common, or to make necessary repairs that the unit owner has failed
to perform. The right shall be immediate in case of an emergency
originating in or threatening such unit, whether or not the owner
is present.
(h) The right of any owner, or his representative, to
enter the unit of any other owner to perform permissible installa-
tions, alterations or repairs to mechanical or electrical services,
including installation of television antennae and related cables,
if requests for entry are made in advance and such entry is at a
time convenient to the owner whose unit is being entered, except
that in the case of emergency such right of entry shall be immediate.
Section 2.4 Delegation of Use; Contract Purchasers;
Tenants. Any owner may delegate his rights of use and enjoyment
in the development, including any recreational facilities to
members of his family, guests, invitees, tenants, unrecorded
contract purchasers, and to such other persons as may be permitted
by the bylaws and the Association rules, subject however, to this
Declaration, to the bylaws and to the Association rules. Any
delegated rights of use and enjoyment are subject to monetary
penalties, temporary suspensions, or other appropriate discipline
to the same extent as are the rights of owners.
Section 2.5 Minor Encroachments. If any portion of the
common area encroaches on any unit or if any portion of a unit
encroaches on the common area, regardless of the cause, a valid
easement exists for such encroachment and for the maintenance of
it as long as it remains, and, all units and the common area are
made subject to such easements. If any structure containing a
unit is partially or totally destroyed and then rebuilt and any
encroachment on the common area results, a valid easement exists
for such encrochment and for the maintenance of it as long as it
remains, and, all units and the common area are made subject to
such easements.
-7-
Section 2.6 Easements Granted by Association. The
Association shall have the right to grant and convey to any third
party easements and rights-of-way in, on, over or under the common
area for the purpose of constructing, erecting, operating or main-
taining lines, cables, wires, conduits, or such other devices for
electricity, cable television, power, telephone and other purposes,
public sewers, storm water drains and pipes, water systems, sprink-
ling systems, water, heating and gas lines or pipes, and any similar
public or quasi-public improvements or facilities, and each purchaser,
in accepting a deed to a condominium, expressly consents to such
easement. However, no such easement can be granted if it would
interfere with the use, occupancy or enjoyment by any owner of
his unit.
ARTICLE III
USE RESTRICTIONS
Section 3.1 Residential Use. Units shall be used for
residential purposes only. However, units owned by Declarant may
be used by Declarant for its designees as models, sales offices and
construction offices for the purpose of developing, improving and
selling condominiums in the development. Nothing in this
Declaration shall prevent an owner from leasing or renting his
condominium. However, any lease or rental agreement shall be in
writing and any tenant shall abide by and be subject to all
provisions of this Declaration, the articles, the bylaws, and the
Association rules and any lease or rental agreement must specify
that failure to abide by such provisions shall be .a default under
the lease or rental agreement. Also, no owner shall rent, lease
or let his condominium for transient or hotel purposes.
Section 3.2 Commerical Use. Except as otherwise pro-
vided in Section 3.1, no part of the development shall be used or
caused, allowed, or authorized to be used in any way, directly, or
indirectly, for any business, commercial, manufacturing, mercan-
tile, storing, vending, or other such non-residential purpose.
Section 3.3 Window Coverings. Windows can be covered
only by drapes, shades, blinds or shutters and cannot be painted
or covered by aluminium foil, cardboard, or other similar materials.
Section 3.4 Oil Drilling. No oildrilling, oildeve-
lopment operations, oil refining, quarrying, or mining operations
of any kind shall be permitted on or in the development, and no
oil wells, tanks, tunnels or mineral excavations or shafts shall
be permitted on the surface of the development or within five hun-
dred (500) feet below the surface of the development. No derrick
or other structure designed for use in the drilling for water, oil
or natural gas shall be erected, maintained or permitted on the
development..
Section 3.5 Offensive Conduct; Nuisances. No noxious
or offensive activities, including but not limited to, repair of
automobiles or other motorized vehicles, except for minor repairs,
shall be conducted within the development. Nothing shall be done
on or within the development that may be or may become an annoyance
or nuisance to the residents of the development, or that in any way
interferes with the quiet enjoyment of occupants of units. Unless
otherwise permitted by the Association rules, no owner shall serve
food or beverages, cook, barbecue or engage in similar activities,
except within such owner's unit and except within those portions
of the common area subject to exclusive easements appurtenant to
such owner's condominium, if any.
Section 3.6 Parking Restrictions; Use of Garage. Unless
otherwise permitted by the board, no automobile shall be parked or
left within the development other than within a garage, carport, or
assigned or appurtenant parking stall or space. No boat, trailer,
recreational vehicle, camper, motorhome, truck, or commercial vehicle
Mtn
shall be parked or left within the development other than in a
parking area designated by the board for the parking and storage
of such vehicles. However, parking by commercial vehicles for
the purpose of making deliveries shall be permitted in accordance
with the Association rules. Any garages and carports shall be used
for parking automobiles only and shall not be converted for living
or recreational activities. Any garage doors shall remain closed
at all times except when being used to enter or exit.
Section 3.7 Signs. No sign of any kind shall be dis-
played to the public view on or from any unit or within the common
area without the approval of the board, except such signs as may be
used by the Declarant or its designees for the purpose of developing,
selling and improving condominiums within the development. However,
one sign of customary and reasonable dimensions advertising a condo-
minium for sale or for rent may be placed within each unit or within
the common area immediately adjacent to it by the owner, the location
and design of it to be subject to approval by the board.
Section 3.8 Antennae, External Fixtures, etc. No tele-
vision or radio poles, antennae, flag poles, clotheslines, or
other external fixtures other than those originally installed by
Declarant or approved by the board and any replacements shall be
constructed, erected or maintained on or within the common area
or any structures on it. No wiring, insulation, air-conditioning,
or other machinery or equipment other than that originally installed
by Declarant or approved by the board, and their replacements shall
be constructed, erected or maintained on or within the common area,
including any structures on it. Each owner shall have the right
to maintain televisio or radio antennae within completely enclosed
portions of his unit, or the attic space, if any, directly above
his unit.
Section 3.9 Fences, etc. No fences, awnings, ornamental
screens, screen doors, sunshades or walls of any nature shall be
erected or maintained on or around any portion of any structure
or elsewhere within the development except those that are installed
in accordance with the original construction of the development,
and their replacements or as are authorized and approved by the
board.
Section 3.10 Animals. No animals, reptiles, rodents,
birds, fish, livestock or poultry shall be kept in any unit or
elsewhere within the development except that domestic dogs, cats,
fish and birds may be kept as household pets within any unit if
they are not kept, bred or raised for commercial purposes. The
board can prohibit maintenance of any animal that constitutes a
nuisance to any other owner in the sole and exclusive opinion of
the board. Each person bringing or keeping a pet upon the develop-
ment shall be absolutely liable to other owners, their family mem-
bers, guests, and invitees, for any damage to persons or property
caused by any pet brought upon or kept upon the development by
such person or by members of his family, his guests or invitees.
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Section 3.11 Restricted Use of Recreation Vehicles,
etc. No boat, truck, trailer, camper, motorhome, recreational
vehicle or tent shall be used as a living area while located on
the development. However, trailers or temporary structures for
use incidental to the initial construction of the development or
the initial sales of condominiums may be maintained within the
development, but shall be promptly removed on completion of all
initial construction and all initial sales.
Section 3.12 Trash Disposal. Trash, garbage or other
waste shall be kept only in covered sanitary containers. No owner
shall permit or cause any trash or refuse to be kept on any
portion of the development other than in the receptacles
customarily used for it, which, shall be located only in places
specifically designated for such purpose except on the scheduled
day for trask pickup.
Section 3.13 Outside Drying and Laundering. No
exterior clothesline shall be erected or maintained and
there shall be no exterior drying or laundering of clothes
on balconies, in entryways or other areas.
Section 3.14 Structural Alterations. No structural
alterations to the interior of or common area surrounding any
unit shall be made and no plumbing or electrical work within any
bearing or common walls shall be performed by any owner without
the prior written consent of the board.
Section 3.15 Exterior Alterations. No owner shall
at his expense or otherwise make any alterations or modifications
to the exterior of the buildings, fences, railings, or walls
situated within the development without the prior written con-
sent of the board.
Section 3.16 Compliance With Laws, etc. Nothing shall
be done or kept in any unit or in the common area that might in-
crease the rate of, or cause the cancellation of, insurance for
the development, or any portion of the development, without the
prior written consent of the board. No owner shall permit any-
thing to be done or kept in his unit that violates any law, or-
dinance, statute, rule or regulaton of any local, county, state
or federal body.
Section 3.17 Indemnification. Each owner shall be
liable to the remaining owners for any damage to the common area
that may be sustained by reason of the negligence of that owner,
members of his family, guests or invitees, but only to the extent
that any such damage is not covered by insurance. Each owner, by
acceptance of his deed, agrees for himself and for the members of
his family, guests or invitees, to indemnify each and every other
owner, and to hold him harmless from, and to defend him against,
any claim of any person for personal injury or property damage
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occurring within the unit of that particular owner or within
any exclusive easements over the common area appurtenant to the
owner's unit.
Section 3.18 Owner's Obligation for Taxes. To the
extent allowed by law, all condominiums, including their pro
rata undivided interest in the common area and the membership of
an owner in the Association, shall be separately assessed and
taxed so that all taxes, assessments and charges which may become
liens prior to first mortgages shall relate only to the individual
condominiums and not to the development as a whole. Each owner
shall be obligated to pay any taxes or assessments assessed by
the San Diego County Assessor against his condominium and against
his personal property.
Section 3.19 Future Construction. Nothing in this
Declaration shall limit the right of Declarant, its successors
and assigns, to complete construction of improvements to the
common area and to condominiums owned by Declarant or to alter
them in any way whatsoever or to construct additional improvements
as Declarant deems advisable before completion and sale of
the entire development. The rights of Declarant in this
Declaration may be assigned by Declarant to any successor to
all or any part of any Declarant's interest in the development,
as developer, by an express assignment that transfers any
such interest to a successor.
Section 3.20 Enforcement. The failure of any owner to
comply with any provision of this Declaration or the articles or
bylaws shall give rise to a cause of action in the Association
and any aggrieved owner for the recovery of damages or for
injunctive relief, or both.
Section 3.21 Balconies and Courtyards. No furniture
shall be placed on or in balconies or courtyards except furniture
which is designated as patio furniture. Nothing shall be placed
or kept on a balcony or in a courtyard except such furniture,
trees, shrubs, bushes or plants and other items as may be permitted
therein or thereon, pursuant to the Association Rules or this
Declaration.
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ARTICLE IV
THE ASSOCIATION
Section 4.1 Formation. The Association is a nonprofit
mutual benefit corporation formed under the laws of California.
Upon the close and recording of the first condominium sale to
an owner, the Association shall be charged with the duties and
invested with the powers set forth in the articles, the bylaws
and this Declaration, including, but not limited to, control
and maintenance of the common area and any facilities on the
common area.
Section 4.2 Association Action; Board of Directors
and Officers; Members' Approval. Except as to matters requiring
the approval of members as set forth in this Declaration, the
articles, or the bylaws, the affairs of the Association shall
be conducted by the board and such officers as the board may
elect or appoint. Such election or appointment shall be in
accordance with this Declaration or the bylaws, and their
amendments. Except as otherwise provided in this Declaration,
the articles or the bylaws, all matters requiring the approval
of members shall be deemed approved if members holding a majority
of the total voting rights assent to them by written consent as
provided in the bylaws or if approved by a majority vote of a
quorum of members at any regular or special meeting held in
accordance with the bylaws.
Section 4.3 Powers of the Association. The Association
shall have all the powers of a nonprofit mutual benefit corporation
organized under the General Nonprofit Mutual Benefit Corporation
Law of California, subject only to such limitations on the exercise
of such powers as are set forth in the articles, the bylaws and
this Declaration. It shall have the power to do any lawful thing
that may be auhorized, required, or permitted to be done by the
Association under this Declaration, the articles and the bylaws,
and to do and perform any act that may be necessary or proper for
or incidental to, the exercise of any of the express powers of
the Association, including, without limitation, the following:
(a) Assessments. The Association shall have the
power to establish, fix, and levy assessments against the owners
and to enforce payment of such assessments, in accordance with
the provisions of this Declaration. However, the approval of
members shall be required as to the amounts of all regular and
special assessments except as otherwise provided in this
Declaration.
(b) Right of Enforcement. The Association in its own
name and on its own behalf, or on behalf of any owner who consents,
can commence and maintain actions for damages or to restrain and
enjoin any actual or threatened breach of any provision of this
Declaration or of the articles or bylaws, or of the Association
rules or any resolutions of the board, and to enforce by mandatory
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injunction, or otherwise, all of the provisions. In addition,
the Association shall have the powers to initiate and execute
disciplinary proceedings against members of the Association for
violations of provisions of the governing instruments in accor-
dance with procedures set forth in the governing instruments.
(c) Right of Entry. The Association shall have the
power to enter upon any privately-owned subdivision interest
as necessary in connection with construction, maintenance or
emergency repair for the benefit of the common area or the
owners in common.
(d) Borrowing Money. The Association shall have the
power to borrow money and incur indebtedness for the purpose of
maintenance of the Association's property and to execute and
deliver therefor, in the Association's name, promissory notes,
bonds, debentures, deeds of trust, mortgages, pledges or other
evidences of debt and security therefor.
(e) Delegation of Powers; Professional Management.
The Association acting by and through the board can delegate
its powers, duties, and responsibilities to committees or
employees, including a professional managing agent ("manager").
Any agreement for professional management of the development
shall be terminable by either party with or without cause and
without payment of a termination fee on thirty (30) days written
notice. The term of any such agreement shall not exceed one (1)
year, although such agreement may be renewed from year to year
by the board.
(f) Association Rules. The board shall have the power
to adopt, amend and repeal the Association rules as it deems
reasonable. The Association rules shall govern the use of the
common area by all owners, and their families, guests, invitees
or by any contract purchaser, or tenant, and their respective
family members, guests or invitees. However, the Association
rules shall not be inconsistent with or alter any provisions of
this Declaration, the articles or the bylaws. A copy of the
Association rules as adopted, amended or repealed, shall be
mailed or otherwise delivered to each owner and a copy shall be
posted in a conspicuous place within the development. In case
of any conflict between any of the Association rules and other
provisions of this Declaration, the articles, or bylaws, the
conflicting Association rule shall be deemed to be superseded
by the provisions of this Declaration, the articles or the
bylaws.
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Section 4.4 Duties of the Association. In addition
to the powers delegated to it by its articles or the bylaws, and
without limiting their genera lity, the Association, acting by and
through the board, or persons or entities described in Section
4.3(e), has the obligation to conduct all business affairs of
common interest to all owners and to perform each of the following
duties:
(a) Operation and Maintenance of Common Area. To
operate, maintain, and otherwise manage or provide for the
operation, maintenance and management of the common area,
and all its facilities, improvements, and landscaping
including any private driveways and private streets, and any
other property acquired by the Association, including
personal property, in a good condition and in a good state
of repair. In this connection, the Association may enter
into contracts for services or materials for the benefit of
the Association or the common area, including contracts with
Declarant.
(b) Taxes and Assessments. To pay all real and
personal property taxes and assessments and all other taxes
levied against the Association. Such taxes and assessments
may be contested or compromised by the Association; provided,
that they are paid or that a bond insuring payment is posted
before the sale or the disposition of any property to
satisfy the payment of such taxes.
(c) Water and Other Utilities. To acquire,
provide and pay for water, sewer, garbage disposal, refuse
and rubbish collection, electrical, telephone, cable television,
gas and other necessary utility services for the common
area, and for condominiums when condominiums are not separately
billed.
(d) Insurance. To obtain, from reputable insurance
companies, and maintain the insurance described in Article
VIII.
(e) Enforcement of Restrictions and Rules. To perform
such other acts, whether or not expressly authorized by this
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Declaration, that may be reasonably necessary to enforce any of
the provisions of this Declaration, the articles and bylaws, and
the Association's rules and board resolutions.
(f) Preparation of Budgets and Finanöial Statements.
To prepare budgets and financial statements for the Association
as required by the Declaration or bylaws.
(g) Election of Officers. To elect officers of the
Association.
(h) Filling of Vacancies on Board. To fill vacancies
on the board except for a vacancy created by the removal of a
director.
(i) Enforcement of Bonded Obligation. If the
Association is the obligee under a bond or other arrangement
("bond") to secure performance of a commitment of the Declarant
or its successors or assigns to complete common area improvements,
not completed at the time the California Commissioner of Real :Estate
issues a final subdivision public report for the development, the
board shall consider and vote on the question of action by the
Association to enforce the obligations under the bond with respect
to any improvement for which a notice of completion has not been
filed within sixty (60) days after the completion date specified
for that improvement in the "planned construction statement"
appended to the bond. However, if the Association has given an
extension in writing for the completion of any common area im-
provement, the board shall consider and vote on the action to
enforce the obligations under the bond only if.a notice of comple-
tion has not been filed within thirty (30) days after the expiration
of the extension. If the board fails to consider and vote on the
action to enforce the obligations under the bond, or if the board
decides not to initiate action to enforce the obligations under
the bond, then on the petition in writing to the board signed by
members of the Association representing not less than five percent
(5%) of the total voting power of the Association, the board shall
call a special meeting of members for the purpose of voting to
override the decision of the board not to initiate action or to
compel the board to take action to enforce the obligations under
the bond. The meeting shall be called by the board by fixing a
date not less than thirty-five (35) days nor more than forty-five
(45) days after receipt by the board of said petition and by giving
written notice to all owners entitled to vote in the manner pro-
vided in this Declaration or in the bylaws for notices of special
meetings of members of the Association. At the meeting, the vote
in person or by proxy of a majority of the owners entitled to vote
(other than Declarant) in favor of taking action to enforce the
obligations under the bond shall be deemed to be the decision of
the Association and the board shall then implement this decision
by initiating and pursuing appropriate action in the name of the
Association.
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(j) Storm Drain. To maintain and repair the private
storm drain system located on the Property.
Section 4.5 Limitations on Authority of Board. The
board of the Association shall be prohibited from taking any of
the following actions, except with the vote or written assent of
a majority of the voting power of the Association residing in
members other than Declarant:
(a) Entering into a contract with a third person where-
in the third person will furnish goods or services for the common
area or to the Association for a term longer than one year with
the following exceptions:
(1) A management contract, the terms of which
have been approved by the Federal Housing
Administration of Veterans Administration.
(ii) A contract with a public utility company
if the rates charged for the material or ser -
vices are regulated by the Public Utilities
Commission provided, however, that the term
of the contract shall not exceed the shortest
term for which the supplier will contract at
the regulated rate.
(iii) Prepaid casualty and/or liability insur-
ance policies of not to exceed three years dura-
tion provided that the policy permits short rate
cancellation by the insured.
(b) Incurring aggregate expenditures for capital
improvements to the common area in any fiscal year in excess
of five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year.
(c) Selling during any fiscal year property of the
Association having an aggregate fair market value greater than
five percent (5%) of the budgeted gross expenses of the Associa-
tion for that fiscal year.
(d) Paying compensation to directors or to officers
of the Association for services performed in the conduct of the
Association's business provided, however, that the board may
cause a member or officer to be reimbursed for expenses incurred
in carrying on the business of the Association.
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(e) Filling of a vacancy on the board created by the
removal of a director.
Section 4.6 Personal Liability. No member of the
board, or of any committee of the Association, or any officer
of the Association, or any manager, or Declarant, or any agent
of Declarant, shall be personally liable to any owner, or to any
other party, including the Association, for any damage, loss or
prejudice suffered or claimed on account of any act, omission,
error or negligence of any such person or entity of such person
or entity has, on the basis of such information as may be
possessed by him or it, acted on in good faith without willful
or intentional misconduct.
ARTICLE V
MEMBERSHIP AND VOTING RIGHTS
Section 5.1 Membership Qualifications. Each owner
of a condominium, including Declarant, shall be a member of the
Association. No owner shall hold more than one membership in
the Association even though such owner may own, or own an interest
in more than one condominium. Ownership of a condominium or
interest mit shall be the sole qualification for membership
in the Association. Each owner shall remain a member of the
Association until his ownership or ownership interest in all
condominiums in the development ceases at which time his mem-
bership in the Association shall automatically cease. Persons
or entities who hold an interest in a condominium merely as
security for performance of an obligation shall not be regarded
as members.
Section 5.2 Members' Rights and Duties. Each member
shall have the rights, duties, and obligations set forth in this
Declaration, the articles, the bylaws and the Association's rules,
as the same may from time to time be amended.
Section 5.3 Transfer of Membership. The Association
membership of each person or entity who owns, or owns an interest
in, one or more condominiums shall be appurtenant to each such
condominium, and shall not be assigned, transferred, pledged,
hypothecated, conveyed or alienated in any way except on a transfer
of title to each such condominium or interest in it and then only
to the transferee. Any attempt to make a prohibited transfer shall
be void. Any transfer of title to a condominium or interest in it
shall operate automatically to transfer the appurtenant membership
rights in the Association to the new owner.
Section 5.4 Classes of Voting Membership. The Associa-
tion shall have two (2) classes of voting membership:
Class A: Class A members are all owners, with the
exception of Declarant during such time or times
that it shall have Class B membership. Each Class A
member shall be entitled to one (1) vote for each
condominium in which such member owns an interest.
However, when more than one Class A member owns an
interest in a condominium, the vote for such condo-
minium shall be exercised as they themselves deter-
mine, but in no case shall more than one (1) vote
be cast with respect to any one condominium.
Class B: The Class B member shall be the Declarant
who shall be entitled to three (3) votes for each
condominium owned in the development.
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The Class B membership shall cease and be con-
verted to Class A membership on the happening of
one of the following events, whichever occurs
earlier:
(a) When the total votes outstanding in the
Class A membership equal the total votes out-
standing in the Class B membership;
(b) On the date which is the second anniversary
of the original issuance of the Final Subdivision
Public Report by the California Department of Real
Estate for the development; or
(c) The date which is the fourth anniversary of
the original issuance of the Final Subdivision
Public Report by the California Department of
Real Estate for the first phase of the multi-
phase development planned by Declarant.
Section 5.5 Special Class A Voting Rights. Notwithstand-
ing the provisions of this Article, from the first election of the
board, and thereafter for so long as a majority of the voting power
of the Association resides in the Declarant or so long as there are
two outstanding classes of membership in the Association, not less
than twenty percent (20%) of the directors on the board shall
have been elected solely by the votes of members other than Declarant.
Section 5.6 Vote of Two Classes as Prerequisite. Not-
withstanding anything to the contrary as may be contained else-
where in this Declaration, any action by the Association which
must have the approval of the membership of the Association
before being undertaken, except provisions with respect to the
action referred to at Section 4.4(i) preceding, shall require the
vote or written assent of the required percentage of each class
of membership during the period of time that there are two (2)
outstanding classes of membership, and any requirement that the
vote of the Declarant is to be excluded in any such determination
shall not be applicable.
Section 5.7 Joint Owner Votes. The voting rights for
each condominium may not be cast on a fractional basis. If the
joint owners of a condominium are unable to agree among themselves
as to how their voting rights shall be cast, they shall forfeit
the vote on the matter in question. If any owner exercises the
voting rights of a particular condominium, it will be conclusively
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presumed for all purposes that he was acting with the authority
and consent of all other owners of the same condominium. If
more than one (1) person or entity exercises the voting rights
for a particular condominium, their votes shall not be counted
and shall be deemed void.
Section 5.8 Cumulative Voting. Election to and re-
moval from the board shall be by secret written ballot. Cumu-
lative voting in the election of directors shall be prescribed
for all elections in which more than two positions on the
board are to be filled, subject only to the procedural pre-
requisites to cumulative voting prescribed in Section 7615(b)
of the Corporations Code. Pursuant to such cumulative voting,
no member shall be entitled to cumulate votes for a candidate
or candidates unless such candidate's name or candidates' names
have been placed in nomination prior to the voting and the
member has given notice at the meeting prior to the voting of
the member's intention to cumulate votes. If any one member
has given notice, all members may cumulate their votes for
candidates in nomination.
Section 5.9 Suspension and Penalties. The Association
shall be authorized to impose monetary penalties, temporary
suspensions of an owner's rights as a member of the Association
or other appropriate discipline for failure to comply with this
Declaration, the bylaws, the Association rules or any other
governing instruments provided that the procedures for notice and
hearing, satisfying the minimum requirements of Section 7341 of
the Corporations Code are followed with respect to the accused
member before a decision to impose said discipline is reached.
However, a monetary penalty imposed by the Association as a
disciplinary measure for failure of a member to comply with
this Declaration, the bylaws, the Association rules or any other
governing instruments or as a means of reimbursing the Association
for costs incurred by the Association in the repair of damage to
common areas and facilities for which the member was allegedly
responsible or in bringing the member and his interest into
compliance with the governing instruments shall not be an
assessment which may become a lien against the member's subdivision
interest enforceable by a sale of interest in accordance with the
provisions of Sections 2924, 2924(b) and 2924(c) of the California
Civil Code. The aforesaid sentence shall not apply to charges
imposed against an owner consisting of reasonable late payment
penalties for delinquent assessments and/or charges to reimburse
the Association for the loss of interest and for costs reasonably
incurred (including attorneys' fees) in its efforts to collect
delinquent assessments.
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ARTICLE VI
ASSESSMENTS
Section 6.1 Agreement to Pay. The Declarant, for each
condominium owned by it in the development which is expressly made
subject to assessment as set forth in this Declaration, covenants
and agrees, and each purchaser of a condominium by his acceptance
of a deed, covenants and agrees, for each condominium owned, to pay
to the Association regular assessments and special assessments, such
assessments to be established, made and collected as provided in
this Declaration.
Section 6.2 Personal Obligations. Each assessment or
installment, together with any late charge, interest, collection
costs and reasonable attorneys' fees, shall be the personal
obligation, of the person or entity who was an owner at the time
such assessment, or installment became due and payable. If more
than one person or entity was the owner of a condominium, the
personal obligation to pay such assessment, or installment
respecting such condominium shall be both joint and several. The
personal obligation for delinquent assessments, or delinquent
installments and other such sums, shall not pass to an owner's
successors in interest unless expressly assumed by them. No
owner may exempt himself from payment of assessments, or install-
ments, by waiver of the use of enjoyment of all or any portion of
the common area or by waiver of the use or enjoyment of, or by
abandonment of, his condominium.
Section 6.3 Purpose of Assessments. The assessments
levied by the Association shall be used exclusively to promote
the recreation, health, safety, and welfare of the members of the
Association, the improvement, replacement, repair, operation and
maintenance of the common area and the performance of the duties
of the Association as set forth in this Declaration.
Section 6.4 Regular Assessments. The board shall prepare
or cause to be prepared a budget for the forthcoming fiscal year
not less than forty-five (45) days before the beginning of each
fiscal year of the Association. The budget shall be prepared
each year regardless of the number of members or the amount
of assets of the Association. A copy of the budget shall be
distributed to each owner and to each mortgageee which has
requested in writing that copies be sent to it. The budget
shall at least include the following information:
(A) Estimated revenue and expenses on an accrued
basis;
(B) The amount of the total cash reserves of the
Association currently available for replacement or
major repair of common facilities and for
contingencies;
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(C) An itemized estimate of the remaining life of, and
the methods of funding to defray repair, replacement
or additions to major components of the common
facilities and any other facilities for which the
Association is responsible; and
(D) A general statement setting forth the procedures
used by the governing body in the calculation and'
establishment of reserves to defray the costs of
repair, replacement or additions to major components
of the common facilities and any other
facilities for which the Association is responsible.
A balance sheet (as of an accounting date which is
the last day of the month closest in tIme to six months from
the date of closing of the first sale of a condominium in the
Development) - and an operating statement (for the period
from the date of the first closing to the said accounting
date) shall be distributed within sixty (60) days after the
accounting date. This operating statement shall include a
schedule of assessments received and receivable identified
by address of the condominium and the name of the individual
or entity assessed.
A report consisting of the following shall be
distributed within one hundred and twenty (120) days after
the close of the fiscal year:
(A) A balance sheet as of theend of thefiscal
year;
(B) An operating (income) statement for the
fiscal year;
(C) A statement of changes in -financial position
for the fiscal year.
For any fiscal year in which the gross income to the
Association exceeds $75,000, a copj of the review of the annual
report prepared in accordance with generally accepted accounting
principles by a licensee of the California State Board of
Accountancy shall also be distributed. If said report is not
prepared by an independent accountant, it shall be accompanied
by the certificate of an authorized officer of the Association
that the statement was prepared from the books and records of the
Association without independent audit or review. - -
In addition to financial statements, the Association
shall annually distribute a statement of the Association's
policies and practices in enforcing its remedies against members
for defaults in the payment of regular and special assessments
including the recording and foreclosing of liens against members'
condominium interests. This statement shall be distributed
within sixty (60) days prior to the beginning of each fiscal year.
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Not more than sixty (60) days nor less than thirty (30)
days before the beginning of each fiscal year of the Association,
the board shall meet for the purpose of establishing the regular
annual assessment for the forthcoming fiscal year. At such
meeting the board shall review the budget, any written comments
received and any other information available to it and, after
making any adjustments that the board deems appropriate, without
a vote of the members of the Association, shall establish the
regular assessment for the forthcoming fiscal year; provided,
however, that the board may not establish a regular assessment
for any fiscal year of the Association which is more than twenty
percent (20%) greater than the regular assessment for the immediately
preceding fiscal year, without the vote or written consent of a
majority of the voting power of the Association residing in
members other than Declarant.
Unless the Association or its assessment income shall
be exempt from federal or state income taxes, to the extent
possible, all reserves shall be accounted for and handled as
contribution to the capital of the Association and as trust funds
segregated from the regular income of the Association or in such
other manner authorized by law or regulations of the Internal
Revenue Service and the California Franchise Tax Board as will
prevent such funds from being taxed as income of the Association.
Section 6.5 Special Assessments. If the board deter-
mines that the estimated total amount of funds necessary to defray
the common expenses of the association for a given fiscal year is
or will become inadequate to meet expenses for any reason, including,
but not limited to, unanticipated delinquencies, costs of construction,
unexpected repairs or replacements of capital improvements on the
common area, the board shall determine the approximate amount
necessary to defray such expenses, and if the amount is approved
by a majority vote of the board it shall become a special assess-
ment. The board may, in its discretion, pro rate such special
assessment over the remaining months of the fiscal year or levy
the assessment immediately against each condominium. Unless
exempt from federal or state income taxation, all proceeds from
any special assessment shall be segregated and deposited into a
special account and shall be used solely for the purpose or
purposes for which it was levied or it shall be otherwise handled
and used in a manner authorized by law or regulations of the
Internal Revenue Service or the California Franchise Tax Board in
order to avoid, if possible, its taxation as income of the
Association.
Section 6.6 Limitation Respecting Special Assessments.
In any fiscal year, the board may not, without the vote or written
assent of a majority of the voting power of the Association residing
in members other than the Declarant, levy special assessments to
defray the costs of any action or undertaking on behalf of the
Association which in the aggregate exceed five percent (5%) of
the budgeted gross expenses of the Association for that fiscal year.
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Except as provided in (a) and (b) hereof, every special
assessment shall be levied upon the same basis as that prescribed
for the levy of regular assessments.
(a) A special assessment against owners to raise funds
for the rebuilding or major repair of the structural common area
housing units of the development shall be levied upon the basis
of the ratio of the square footage of the floor area of the unit
to be assessed to the total square footage of floor area of all
units.
(b) The provisions hereof with respect to special assess-
ments do not apply in the case where the special assessment against
a member is a remedy utilized by the board to reimburse the Associa-
tion for costs incurred in bringing the member and his condominium
interest into compliance with provisions of the governing instruments
for the subdivision.
Section 6.7 Uniform Rate of Regular Assessments. Regular
assessments must be fixed at a uniform rate for all condominiums and
shall be determined by dividing the amount by the total number of
condominiums then within the development and subject to assessment.
Section 6.8 Commencement of Regular Assessments; Assess-
ment Period. The regular assessment period shall commence on January 1
of each year and shall terminate on December 31 of such year, and
regular assessments shall be payable in equal monthly installments
unless the board adopts some other basis for collection. However, the
initial regular assessment period shall commence on the first day
of the calendar month following the date on which the sale of the
first condominium to a purchaser is closed and recorded (the "initia-
tion date") and shall terminate on December 31 of the year in which
the initial sale is closed and recorded. The first regular assess-
ment shall be adjusted according to the number of months remaining
in the fiscal year and shall be payable in equal monthly install-
ments unless the board adopts some other basis for collection. The
Association shall not change the pro rata interest or obligation of
any condominium for purposes of levying assessments unless all owners
have given their prior written consent.
Section 6.9 Notice and Assessment; Installment Due Dates.
A single ten (10) day prior written notice of each annual regular
assessment and each special assessment shall be given to each owner
of every condominium subject to assessment in which the due dates
for the payments of installments shall be specified. The due dates
for the payment of installments normally shall be the first day of
each month unless some other due date is established by the board.
Each installment of regular assessments and special assessments
shall become delinquent if not paid within fifteen (15) days after
its due date. There shall accrue with each delinquent installment
a late charge determined by the board but in no event to exceed
the maximum permitted by California State law, together with
interest at the rate of ten percent (10%) per annum calculated
from the due date to and including the date full payment is
received by the Association.
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Section 6.10 Certificate of Payment. The Association
shall, upon demand, and for a reasonable charge, furnish a certifi-
cate signed by an officer or authorized agent of the Association
setting forth whether the assessment on a specified condominium
has been paid; such certificate shall be conclusive evidence of
such payment upon any third party relying thereupon in good faith.
Section 6.11 Subordination of the Lien to Mortgages.
The lien of the regular or special assessments provided for herein
shall be subordinate to the lien of any mortgage given for value,
including but not limited to purchase-money mortgages. Sale or
transfer of any condominium shall not affect the assessment lien.
However, the sale or transfer of any condominium pursuant to fore-
closure of any mortgage given for value or as the result of the
exercise of a power of sale shall extinguish the lien of such
assessments as to payments which became due prior to such sale or
transfer. No sale or transfer shall relieve such new condominium
owner from liability for any assessments thereafter becoming due
or from the lien thereof.
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ARTICLE VII
COLLECTION OF ASSESSMENTS: LIENS
Section 7.1 Rights to Enforce. The right to collect and
enforce assessments is vested in the board acting for and on behalf
of the Association. The board or its authorized representative,
including any manager, can enforce the obligations of the owners to
pay assessments provided for in this Declaration by commencement and
maintenance of a suit at law or in equity, or the board may foreclose
by judicial proceedings or through the exercise of the power of sale
pursuant to Section 7.2 to enforce the lien rights created (any
foreclosure right for nonpayment of assessments under this or any
other Article contained within this Declaration shall be for non-
payment of Regular Assessments only, there shall be no foreclosure
right for nonpayment of any type of special assessment, and all
reference to foreclosure rights is for nonoayment of Regular Assess-
ments only). Suit to recover a money judgment for unpaid assessments
together with all other amounts described in Section 6.2 shall be
maintainable without foreclosing or waiving the lien rights.
Section 7.2 Creation of Lien. If there is a delinquency
in the payment of any assessment, or installment on a condominium,
as described in Section 6.9, any amounts that are delinquent,
together with the late charge described in that section, interest at
the rate of ten percent (10%) per annum, and all costs that are
incurred by the board or its authorized representative in the
collection of the amounts, including reasonable attorneys' fees,
shall be a lien against such condominium upon the recordation in
the office of the San Diego County Recorder of a notice of assess-
ment as provided in California Civil Code, Section 1356. The notice
of assessment shall not he recorded until fifteen (15) days after
the board or its authorized representative has mailed by first class
mail to the delinquent owner or owners a written notice of delinquency
and a demand for payment. The lien shall expire and be void unless,
within one (1) year after the recordation of the notice of assessment,
the board or its authorized representative records (a) a one year
extension of said lien, (h) a notice of default as provided herein-
after, or (c) institutes judicial foreclosure proceedings with
respect to such lien.
Section 7.3 Notice of Default; Foreclosure. Not more
than one (1) year or two (2) years if the lien has been extended,
nor less than fifteen (15) years after the recording of the notice
of assessment, the board or its authorized representative can
record a notice of default and can cause the condominium with
respect to which a notice of default has been recorded to be sold
in the same manner as a sale is conducted under California Civil
Code, Section 2924, 2924b and 2924c, or through judicial fore-
closure. However, as a condition precedent to the holding of any
such sale under Section 2924c appropriate publication shall be
made. In connection with any sale under Section 2924c the board
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is authorized to appoint its attorney, any officer or director, or
any title insurance or foreclosure company authorized to do business
in California as trustee for purposes of conducting the sale. If
a delinquency is cured before sale, or before completing a judicial
foreclosure, the board or its authorized representative shall cause
to be recorded in the office of the San Diego County Recorder a
certificate setting forth the satisfaction of such claim and
release of such lien upon payment of actual expenses incurred,
including reasonable attorneys fees by any delinquent owner. On
becoming delinquent in the payment of any assessments, or install-
ments each delinquent owner shall be deemed to have absolutely
assigned all rents, issues and profits of his condominium to the
Association and shall further be deemed to have consented to the
appointment of a receiver (which appointment may, at the election
of the Association, be enforced by the -Association through specific
performance). The Association, acting on behalf of the owners,
shall have the power to bid upon the condominium at foreclosure
sale and to acquire, hold, lease, mortgage and convey the condominium.
Section 7.4 Waiver of Exemption. Each owner, to the
extent permitted by law, waives to the extent of any liens created
pursuant to this Article XII, the benefit of any homestead or
exemption laws of California in effect at the time any assessment,
or installment, becomes delinquent or any lien is imposed.
SECTION VIII
INSURANCE
Section 8.1 Liability Insurance. The Association shall
obtain and maintain at all times comprehensive public liability
insurance insuring the Association, any manager, and the owners
and occupants of condominiums, and their respective family members,
guests, invitees, and the agents and employees of each, against
any liability incident to the ownership or use of the common area
and including, if obtainable, a cross-liability or severability of
interest endorsement insuring each insured against liability
to each other insured. The limits of such insurance shall
not be less than One Million Dollars ($1,000,000) covering
all claims for death, personal injury and property damage
arising out of a single occurrence. Such insurance shall
include coverage against water damage liability, liability
for non-owned and hired automobiles, liability for property
of others and any other liability or risk customarily covered
with respect to projects similar in construction, location
and use.
Section 8.2 Fire and Extended Coverage Insurance.
The Association also shall obtain and maintain a master or blanket
policy of fire insurance for the full insurable value of all of
the improvements within the development. The form, content, and
term of the policy and its endorsements and the issuing company
must be satisfactory to all institutional mortgagees. If
more than one institutional mortgagee has a loan of record
against a condominium in the development, the policy and endorse-
ments shall meet the maximum standards of the various institutional
mortgagees represented in the development. The policy shall
contain an agreed amount endorsement or its equivalent, an increased
cost of construction endorsement or a contingent liability from
operation of building laws endorsement or its equivalent, an ex-
tended coverage endorsement, vandalism, malicious mischief cover-
age, a special form endorsement and a determinable cash adjust-
ment clause or a similar clause to permit cash settlement covering
full value of the improvements in case of partial destruction and
a decision not to rebuild. The policy shall provide amounts of
coverage as shall be determined by the board. The policy shall
name as insured the Association, the owners, and all mortgagees
as their respective interests may appear, and may contain a loss
payable endorsement in favor of the trustee described hereinafter.
Section 8.3 Individual Fire Insurance Limited. Except
as provided in this Article, no owner shall separately insure his
unit against loss by fire or other casualty covered by any insurance
carrier under Section 3.2. If any owner violates this provision,
any diminution in insurance proceeds otherwise payable under poli-
cies described in Section 3.2 that results from the existence of
such other insurance will be chargeable to the owner who acquired
other insurance, and such owner will be liable to the Association
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to the extent of any such diminution. An owner can insure his
personal property against loss. In addition, any improvements
made by an owner within his unit may be separately insured by
the owner, but the insurance is to be limited to the type and
nature of coverage commonly known as "tenant's improvements."
All such insurance that is individually carried must contain a
waiver of subrogration rights by the carrier as to other owners,
the Association, and any institutional mortgagee of such
condominium.
Section 8.4 Trustee. All insurance proceeds payable
under Section 8.2 and 8.3, subject to the rights of mort-
gagees under Section 8.8, may be paid to a trustee, to be held
and expended for the benefit of the owners, mortgagees and
others, as their respective interests shall appear. Said trustee
shall be a commercial bank in San Diego County that agrees in writing
to accept such trust. If repair or reconstruction is authorized,
the Board shall have the duty to contract for such work as pro-
vided for in this Declaration.
Section 8.5 Other Insurance. The board may purchase
and maintain demolition insurance in adequate amounts to cover
demolition in case of total or partial destruction and a deci-
sion not to rebuild, and a blanket policy of flood insurance.
The board also shall purchase and maintain worker's compensation
insurance, to the extent that it is required by law, for all
employees or uninsured contractors of the Association. The
board also shall purchase and maintain fidelity bonds or insur-
ance (which shall be in an amount not less than 150% of each
year's estimated annual operating expenses and reserves and
shall contain an endorsement of coverage of any person who may
serve without compensation) sufficient to meet the requirements
of any institutional mortgagee. The board shall purchase
and maintain such insurance on personal property owned by the
Association, and any other insurance, that it deems necessary.
Section 8.6 Owner's Insurance. An owner may carry
whatever personal liability and property damage liability insur-
ance with respect to his condominium that he desires. However,
any such policy shall include a waiver of subrogation clause
acceptable to the board and to any institutional mortgagee.
Section 8.7 Adjustment of Losses. The board is ap-
pointed attorney-in-fact by each owner to negotiate and agree
on the value and extent of any loss under any policy carried
pursuant to Section 8.1, 8.2 and 8.5. The board is granted
full right and authority to compromise and settle any claim or
enforce any claim by legal action or otherwise and to execute
releases in favor of any insurer.
Section 8.8 Distribution to Mortgagees. Any mortgagee
has the option to apply insurance proceeds payable on account
of a condominium in reduction of the obligation secured by the
mortgage of such mortgagee.
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ARTICLE IX
DESTRUCTION OF IMPROVEMENTS
Section 9.1 Restoration of Development. Except as
hereinafter otherwise provided in this Section, in the event of
a total or partial destruction of the development, it shall be
the duty of the Association to restore and repair the same to its
former condition in accordance with all building codes in effect
at the time of such reconstruction, as promptly as practical.
The proceeds of any insurance maintained pursuant to Article VIII
hereof for reconstruction or repair of the development shall be
used for such purpose, and the deficiency, if any, shall be raised
by a special assessment imposed pursuant to Article VI hereof.
The board shall be authorized to have prepared the necessary docu-
ments to effect such reconstruction as promptly as practical. The
development shall be reconstructed and rebuilt substantially in
accordance with the condominium plan and the original construction
plans if they are available, unless changes recommended by the
board shall have been approved in writing by a majority of the
voting power of the Association.
Section 9.2 Automatic Reconstruction. In the event
that the amount available from the proceeds of such insurance
policies for such restoration and repair shall be at least
eighty-five percent (85%) of the estimated cost of restoration
and repair or the cost not covered by insurance is less than
the sum of One Hundred Fifty Dollars ($150.00) per year, per
unit, a Reconstruction Assessment, with each owner contributing
a like sum, may be levied by the Association to provide the
necessary funds for such reconstruction, over and above the
amount of any insurance proceeds available for such purpose,
and the Board shall cause the damaged or destroyed development
to be restored as closely as practical to its condition prior
to the destruction or damage.
Section 9.3 Vote of Members. In the event that the
amount available from the proceeds of such insurance policies
for such restoration and repair shall be less than eighty-five
percent (85%) of the estimated cost of restoration and repairs
or greater than the sum of One Hundred Fifty Dollars ($150.00)
per unit per year, the development shall not be replaced or
restored unless a majority of the voting power of the
Association agree in writing to such replacement or restoration,
or gives its affirmative vote at a meeting duly called therefor.
If the members approve such replacement or restoration, the
Board shall cause the damaged or destroyed development to be
restored as closely as practical to its former condition prior
to the destruction or damage.
Section 9.4 Sale of Project. In the event of a deter-
mination not to rebuild, the Association shall cause the develop-
ment to be offered for sale at the highest and best price obtainable,
either in its damaged condition, or after damaged structures have
been razed. The net proceeds of such sale and the proceeds of any
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insurance carried by the Association shall be distributed by the
Association among the owners of the units and their respective
mortgagees proportionately based upon the respective selling prices
of the units in the original sales of the units by the Declarant,
with all prices adjusted on account of subsequent price increases
in the development.
Section 9.5 Right to Partition. No owner shall have
the right to judicial partition of his interest in the development,
or any part thereof, except in the event that restoration has not
actually commenced within six (6) months from the date of any
partial or total destruction in which event the conditions for
partition as set forth in Subdivision (4) of Section 1354 of the
Civil Code shall be deemed to have been satisfied. Nothing herein
shall be deemed to prevent partition of a co-tenancy in any condo-
minium. 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 units 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 development and do further
covenant that no action for such judicial partition shall be
instituted, prosecuted or reduced to judgment.
Section 9.6 Interior Damage. With the exception of
any casualty or damage insured against by the Association pursuant
to Article VIII, restoration and repair of any damage to the
interior of any individual unit, including without limitation all
fixtures, appliances, cabinets and improvements therein, together
with restoration and repair of all interior paint, wall coverings
and floor coverings, shall be made by and at the individual expense
of the owner of the unit so damaged. In the event of an obligation
or determination to rebuild the development after partial or total
destruction as provided in this Article IX, such interior repair
and restoration shall be completed by each such unit owner as
promptly as practical and in a lawful and workmanlike manner,
in accordance with the original plans and specifications or as
otherwise approved by the board pursuant to Section 3.14, hereof.
Section 9.7 Notice to Unit Owners and Listed Mortgagees.
The board, immediately upon having knowledge of any damage or
destruction (a) to the common area or any portion thereof, with
damage exceeding Ten Thousand Dollars ($10,000.00), or (b) to any
individual unit which damage or destruction may only be restored
at a cost exceeding One Thousand Dollars ($1,000.00), shall promptly
notify all owners, and all mortgagees who have filed a written
request for such notice with the board.
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ARTICLE X
CONDEMNATION
A condemnation award affecting all or a part of the
structural common area of the development which is not appor -
tioned among the owners by court judgment or by agreement bet-
ween the condemning authority and each of the affected owners
of the development, shall be distributed among the affected
owners and their respective mortgagees according to the rela-
tive values of the condominium units affected by the condemna-
tion as determined by independent appraisal to be obtained by
the board.
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ARTICLE XI
PPTTTT(Th1
Except as is provided in California Civil Code Section
1364, as the same may be amended from time to time, the common -
area of the development shall remain undivided, and there shall
be no judicial partition thereof.
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ARTICLE XII
NON-SEVERABILITY OF COMPONENT
INTERESTS IN A CONDOMINIUM
Section 12.1 Prohibition Against Severance. An owner
shall not be entitled to sever his unit from his membership in
the Association, and shall not be entitled to sever his unit and
his membership from his undivided interest in the common area for
any purpose. None of the component interests in a condominium
can be severally sold, conveyed, encumbered, hypothecated or
otherwise dealt with, and any violation or attempted violation of
this provision shall be void. Similarly, no owner can sever any
exclusive easement appurtenant to his unit over the common area
from his condominium, and any attempt to do so shall be void.
The suspension of such right of severability shall not extend
beyond the period in which the right to partition a condominium
project is suspended under California Civil Code, Section 1354.
It is intended hereby to restrict severability pursuant to
California Civil Code, Section 1355(g).
Section 12.2 Conveyances. After the initial sales of
the condominiums, any conveyance of a condominium by an owner
shall be presumed to convey the entire condominium. However,
nothing contained in this section shall preclude the owner of any
condominium from creating a co-tenancy or joint tenancy in the
ownership of the condominium with any other person or persons.
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ARTICLE XIII
TERM OF DECLARATION
This declaration shall run with the land, and shall
continue in full force and effect for a period of sixty (60)
years from the date on which this Declaration is recorded.
After that time, this Declaration and all covenants, conditions,
restrictions and other provisions shall he automatically extended
for successive ten (10) year periods unless this Declaration is
revoked by an instrument executed by a majority of the owners
and mortgagees, and such instrument is recorded in the office of
the San Diego County Recorder.
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ARTICLE XIV
PROTECTION OF MORTGAGEES
Section 14.1 Mortgage Permitted. Any owner may en-
cumber his condominium with a mortgage.
Section 14.2 Subordination. Any lien created or
claimed under the provisions of this Declaration is expressly
made subject and subordinate to the rights of any mortgage
given for value, including, but not limited to, purchase money
mortgages, that encumbers all or a portion of the development,
or any condominium, made in good faith and for value, and no
such lien shall in any way defeat, invalidate, or impair the
obligation or priority of such mortgage unless the mortgagee
expressly subordinates his interest, in writing, to such lien.
Section 14.3 Amendment. The prior written consent
of seventy-five percent (75%) of the holders of all first mort-
gages (based upon one vote for each mortgage held) shall be re-
quired for any material amendment to this Declaration, to the
articles or to the bylaws. As used in this Section 14.3, the
term "any material amendment" is defined to mean amendments to
provisions of this Declaration, to the articles or to the
bylaws governing the following subjects:
(a) The purpose for which the development may be
used;
(b) Voting;
(c) Assessments, collection of assessments, creation
and subordination of Assessment liens;
(d) Reserves for repair and replacement of common
area improvements;
(e) Maintenance of common area, and improvements
thereon;
(f) Casualty and liability insurance;
(g) Rebuilding or reconstruction of common area and
improvements thereon, in the event of damage or destruction;
(h) Rights of use to and in the common area;
(i) Annexation of additional property; and
(j) Any provisions, which by their terms, are spe-
cifically for the benefit of first mortgagees, or specifically
confers rights on first mortgagees.
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Section 14.4 Right to Examine Books and Records.
Institutional first mortgagees can examine the books and records of
the Association of the condominium development and can require the
submission of financial data concerning the Association or the
condominium development, including annual audit reports and
operating statements as furnished to the owners.
Section 14.5 Distribution of Insurance and Condemnation
Proceeds. No owner, or any other party, shall have priority over
any rights of institutional mortgagees of condominiums pursuant to
their mortgages in case of a distribution to owners of insurance
proceeds or condemnation awards for losses to or a taking of units
or common area. Any provision to the contrary in this Declaration
or in the bylaws or other documents relating to the development
is to such extent void. All applicable fire and all physical loss
or extended coverage insurance policies shall contain loss payable
clauses acceptable to the affected institutional mortgagees
naming the mortgagees, as their interests may appear.
Section 14.6 Amenities. All amenities (such as parking,
recreation and service areas) and common area shall be available
for use by owners and all such amenities with respect to which
regular or special assessments for maintenance or other uses may
be levied shall constitute common area. All such amenities shall
be owned in fee by the owners in undivided interests or by the
Association free of encumbrances except for any easements granted
for public utilities or for other public purposes consistent
with the intended use of such property by the owners or by the
Association.
Section 14.7 Notices to Mortgagees of Record. Upon
any loss to any unit covered by a mortgage, if such loss exceeds
One Thousand Dollars ($1,000.00), or on any loss to the common
area, if such loss exceeds Ten Thousand Dollars ($10,000.00), or
on any taking of the common area, notice in writing of such loss
or taking shall be given to each mortgagee of record. If any
owner of a unit is in default under any provision of these cove-
nants, conditions and restrictions, or under any provision of the
bylaws or the Association rules, which default is not cured within
thirty (30) days after written notice to such owner, the Associa-
tion shall give to the mortgagee of record of such owner written
notice of such default and of the fact that said thirty (30) day
period has expired.
Section 14.8 Payments by Mortgagees. Mortgagees of
condominiums may, jointly or singularly, pay taxes or other
charges which are in default and which may or have become a
charge against the common area and may pay overdue premiums
on hazard insurance policies, or secure new hazard insurance
coverage on the lapse of a policy, for common area improvements
MWE
or other insured property of the Association and, upon making
any such payments, such mortgagees shall be owed immediate
reimbursement therefor from the Association. This provision
shall constitute an agreement by the Association for the express
benefit of all mortgagees and upon request of any mortgagees the
Association shall execute and deliver to such mortgagee a separate
written agreement embodying the provisions of this Section 14.8.
Section 14.9 Effect of Breach. No breach of any
provision of these covenants, conditions and restrictions shall
invalidate the lien of any mortgage in good faith and for value,
but all of covenants, conditions and restrictions shall be binding
on any owner whose title is derived through foreclosure sale,
trustee's sale, or otherwise.
Section 14.10 Foreclosure. If any condominium is encum-
bered by a mortgage made in good faith and for value, the fore-
closure of any lien created by any provision set forth in this
Declaration for assessments, or installments of assessments,
shall not operate to affect or impair the lien of the mortgage.
On foreclosure of a mortgage, the lien for assessments on
installments that have accrued up to the time of foreclosure shall
be subordinate to the lien of the mortgage, with the foreclosure-
purchaser taking the title to the condominium free of the lien for
assessments on installments that have accrued up to the time of
the foreclosure sale. On taking title to the condominium the
foreclosure-purchaser of a mortgage shall only be obligated
to pay assessments or other charges levied or assessed by the
Association after the foreclosure-purchaser acquired title to
the condominium. The subsequently levied assessments or other
charges may include previously unpaid assessments provided all
owners, including the foreclosure-purchaser, and his successors
and assigns are required to pay their proportionate share as
provided in this Section.
Section 14.11 Non-Curable Breach. Any mortgagee who
acquires title to a condominium by foreclosure or by deed-in-lieu
of foreclosure shall not be obligated to cure any breach of this
Declaration that is non-curable or of a type that is not practi-
cal or feasible to cure.
Section 14.12 Loan to Facilitate. Any mortage given to
secure a loan to facilitate the resale of a condominium after
acquisition by foreclosure or by a deed-in-lieu of foreclosure
shall be deemed to be a loan made in good faith and for value
and entitled to all of the rights and protections of this
Article XIV.
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ARTICLE XV
AMNDMF.NT
Section 15.1 Amendment Before The Close of First Sale.
Prior to the close of the first sale of a condominium in the
development to a purchaser other than Declarant, this Declaration
and any amendments to it may be amended in any respect or revoked
by the execution by Declarant of an instrument amending or
revoking this Declaration, after such instrument has been approved
by the Department of Real Estate of the State of California.
The amending or revoking instrument shall make appropriate
reference to this Declaration and its amendments and shall be
acknowledged and recorded in the office of the San Diego County
Recorder.
Section 15.2 Amendment After Close of First Sale.
After the close of the first sale of a condominium in the
development to a purchaser, other than Declarant, and during such
time that the two-class voting structure is still in effect, this
Declaration may not be amended or revoked in any respect, except
by the vote or written consent of the holders of not less than
fifty-one percent (51%) of the voting rights of each class of
members. Upon the termination of the two-class voting structure,
this Declaration may not be amended or revoked in any respect
except by the vote or written consent of a majority of the total
voting power of the Association which is at least a bare
majority; and at least a bare majority of the votes of
members other than Declarant if Declarant still retains
voting rights. However, if any provision of this Declaration
requires a greater percentage of the voting rights of any
class of members in order to take affirmative or negative
action under such provision, the same percentage of such
class or classes of members shall be required to amend or revoke
such provision. Also, if the consent or approval of any
governmental authority, any Mortgagee or other person, firm,
agency or entity is required under this Declaration with
respect to any amendment or revocation of any provision of
this Declaration, no such amendment or revocation shall
become effective unless such consent or approval is obtained.
Any amendment or revocation subsequent to the close of such
first sale shall be evidenced by an instrument certified by
the Secretary or other duly authorized officer of the Association
and shall make appropriate reference to this Declaration and
its amendments and shall be acknowledged and recorded in the
office of the San Diego County Recorder.
Section 15.3 Conflict with Article XIV or Other
Provision of this Declaration. To the extent any provisions of
this Article XV conflict with the provisions of Article XIV or
any other provision of this Declaration, except those contained
in Section 15.4, the provisions of Article XIV or the other
provisions shall control.
I'
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Section 15.4 Business and Professions Code Section 11018.
All amendments or revocations of this Declaration shall comply with
the provisions of California Business and Professions Code, Section
11018.7 to the extent said Section is applicable.
Section 15.5 Reliance on Amendments. Any amendment
made in accordance with the terms of this Declaration shall be
presumed valid by anyone relying on them in good faith.
Section 15.6 Amendments to Conform with Mortgagee
Requirements. It is the intent of Declarant that this Declaration
and the articles and bylaws of the Association, and the development
in general, shall now and in the future meet all requirements
necessary to purchase, guarantee, insure or subsidize any mortgage
of a condominium in the development by the Federal Home Loan Mort-
gage Corporation, the Federal National Mortgage Association, the
Federal Housing Administration and the Veterans' Administration.
In furtherance of that intent, Declarant expressly reserves the
right and shall be entitled by unilateral amendment of the Declara-
tion so long as Declarant owns more than twenty-five percent (25%)
of the condominiums in the development to amend this Declaration
in order to incorporate any provisions or to enter into any agree-
ment on behalf and in the name of the Association that are, in
the opinion of any of the cited entitites or governmental agencies,
required to conform the Declaration, the articles, the bylaws or
the development to the requirements of any of the entities or
governmental agencies, including without limitation, the execution
on behalf of and in the name of the Association of a regulatory
agreement between the Association and the Federal Housing Commi-
sioner and any other agreement sufficient to satisfy the require-
ments for mortgage purchase, guarantee or insurance by any of said
entities or agencies. Declarant is hereby granted an irrevocable
power of attorney to execute any such amendment or agreement by and
in the name of the Association. Any such provision shall first be
approved by the California Department of Real Estate in connection
with its issuance of a final subdivision public report or amendment
to it with respect to the development. Each owner of a condominium
and each mortagee of a condominium by acceptance of a deed or
encumbrance of a condominium consents to the incorporation in this
Declaration of any such provision and to the execution of any
amendment or regulatory agreement and agrees to be bound by any
such provisions as if they were incorporated in this Declaration.
The board and each owner shall take any action or shall adopt any
resolutions required by Declarant or any mortgagee to conform this
Declaration or the development to the requirements of any of said
entities or agencies.
-41-
ARTICLE XVI
REPAIR AND MAINTENANCE
Section 16.1 Repair and Maintenance of the Units by
Owners. Except to the extent that the Association is obligated
hereunder to maintain a portion of a unit, each owner shall main-
tam, repair, replace and restore all portions of his unit
including, without limitation, the interior walls, ceilings,
floors and doors in a clean, sanitary and attractive condition.
All such repairs and maintenance pursuant to this Section shall
be subject to such rules therefor as the Association may from
time to time establish.
Section 16.2 Repair and Maintenance of Certain Common
Areas and Restricted Common Areas by or at the Expense of Owners.
(a) Common Area. In the event the board shall determine
that the walls, ceilings, floors, doors or any other portion of the
common area forming the boundaries of a unit have been damaged from
within the unit, notwithstanding that such damage may be to the
common area, the owner of the unit shall be responsible for
repairing such damage in a timely manner and in accordance with such
rules as the board shall from time to time adopt. In the event
such repair is not so accomplished by the owner, the Association
or its delegates shall have the right at reasonable time to enter
the unit to effect such repair, and the cost thereof shall be
charged to the owner of the unit and, if not paid in a timely
manner, shall be a special asssment.
(b) Window Glass. Each owner shall be responsible
at his sole expense for the interior and exterior cleaning,
repair and replacement of all window glass and skylights, if any,
of his condominium.
(c) Air Conditioning Units. Each owner shall be
responsible at his sole expense for the repair, maintenance and
replacement of the air conditioning unit servicing his condominium.
(d) Garage Doors, Openes and Interiors. Each owner
shall be responsible at his sole expense for the repair, maintenance
or replacement of the garage doors of his condominium, including
without limitation, hinges, springs and other parts of the door
mechanism, including automatic door openers, and excepting only
the exterior painting thereof. Each owner shall also be responsible
at his sole expense for the repair and maintenance of the interior
surfaces of the garage area appurtenant to his condominium.
(e) Rights of Association. In the event that an owner
fails to accomplish any maintenance or repair required by this
section, the Association or its delegates shall have the right at
reasonable times to enter the unit to effect such maintenance or
repair, and the costs thereof shall be charged to the owner of
the unit and, if not paid in a timely manner, shall be a special
assessment.
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Section 16.3 Repair and Maintenance by the Association.
(a) Common Area. The Association shall maintain and
repair the exterior surfaces of all condominium buildings,
including the painting thereof, and shall maintain and repair
all landscaping and recreational facilities on the common area,
the private streets and alleys located within the development,
and the roofs of all condominium buildings and recreational
facilities.
(b) Restricted Common Area. The Association shall
be obligated to maintain, repair, restore, replace and make
all necessary improvements to those restricted common areas
identified as
-43-
ARTICLE XVII
ANNEXATION
The real property described on Exhbiti "D" (hereinafter
in this Article referred to as the "Annexation Property") and/or
any other real property may be annexed to and become subject to
this Declaration by any of the methods set forth hereinafter in
this Article, as follows:
Section 17.1 Development of the Covered Property.
Declarant intends to sequentially develop the Annexation Property
on a phased basis; however, Declarant may elect not to develop
all or any part of such real property, to annex such real property
to this Declaration in increments of any size whatsoever, or to
develop more than one such increment at any given time and in any
given order. Although Declarant shall have the ability to annex
the Annexation Property as provided in this Article, Declarant
shall not be obligated to annex all or any portion of such prop-
erty, and such property shall not become subject to this Declara-
tion unless and until a Supplementary Declaration shall have been
so executed and recorded.
Section 17.2 Supplementary Declarations. A Supple-
mentary Declaration shall be a writing in recordable form which
annexes real property to the plan of this Declaration and which
incorporates by reference all of the covenants, conditions, res-
trictions, easements and other provisions of this Declaration
and shall contain such other provisions as set forth in this
Declaration relating to Supplementary Declarations. Such Supple-
mentary Declarations contemplated above may contain such comple-
mentary additions and modifications of the covenants, conditions
and restrictions contained in this Declaration as may be necessary
to reflect the different character, if any, of this Declaration.
In no event, however, shall any such Supplementary Declaration,
or any merger or consolidation, revoke, modify or add to the
covenants established by this Declaration with respect to the
existing property.
Section 17.3 Annexation Without Approval and Pursuant
to General Plan. All or any part of the Annexation Property may
be annexed to and become subject to this Declaration and subject
to the jurisdiction of the Association without the approval,
assent or vote of the Association or its Members, provided that
a Supplementary Declaration covering the portion of the Annexa-
tion Property to be annexed shall be executed and recorded by
Declarant; provided, however, no Supplementary Declaration shall
be so executed and recorded pursuant to this Section more than
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three (3) years (i) subsequent to the recordation of this Dec-
laration, or (ii) subsequent to the last recordation of a
Supplementary Declaration, whichever of (i) or (ii) shall have
later occurred. The recordation of said Supplementary Declara-
tion shall constitute and effectuate the annexation of the said
real property described therein making said real property subject
to this Declaration and subject to the functions, powers and
jurisdiction of the Association, and thereafter said annexed real
property shall be part of the Property and all of the Owners of
condominiums in said annexed real property shall automa-
tically be Members.
Section 17.4 Annexation Pursuant to Approval. Upon
approval in writing of the Association, pursuant to two-thirds (2/3)
majority of the voting power of each class of its Members, or
the written assent of such Members, excluding the voting power
of written assent of the owner of any of the real property
sought to be annexed, any person who desires to add real property,
other than the Annexation Property, to the plan of this Declara-
tion and to subject such property to the jurisdiction of the
Association, may file of record a Supplementary Declaration. The
provisions of this Section shall also apply to the Annexation
Property subsequent to the expiration of the power of Declarant
to annex such property without the approval of the Members as
provided in this Article. The certificate of the President and
the Secretary of the Association attached to any Supplementary
Declaration recorded pursuant to this Section certifying that
the required two-thirds (2/3) majority of the voting power of
each class of Members has approved the recordation of such Sup-
plementary Declaration shall be deemed conclusive proof thereof.
Section 17.5 Mergers or Consolidations. Upon a merger
or consolidation of the Association with another association,
which merger or consolidation must be approved by two-third (2/3)
of each class of Members, the Association's properties, rights
and obligations may, by operation of law, be transferred to the
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 pur-
suant to a merger. The surviving or consolidated association
may administer the covenants, conditions and restrictions
established by this Declaration within the Property, together
with the covenants and restrictions established upon any
other property as one plan.
Section 17.6 Limitation upon Annexation. Notwith-
standing the foregoing Section of this Article, no annexation
of additional real Droperty to this Declaration, unless there
has been approval thereof by a majorty of the voting power of
the Association, shall have the effect of either overburdening
-45-
the common interests of the then existing Owners, except as
set forth in this Declaration or substantially increasing the
Assessments of such Owners if such increase has not been dis-
closed in the California Department of Real Estate's Final
Subdivision Public Report applicable to such Owner's unit.
Section 17.7 No Obligation to Annex. Not-
withstanding any provisions of this Declaration expressly or
impliedly to the contrary, Declarant shall have no obligation
whatsoever to annex any real property hereto including, with-
out limitation, the real property described in Exhibit "D".
Section 17.8 Improvements on Future Phases of
Development. Declarant expressly makes no representations or
warranties in connection with improvements constructed on lots
within future phases of the development. Declarant makes no
guarantee that it will build similar or comparable improve-
ments on lots within future phases of the development. De-
clarant expressly reserves the right to change the style,
quality, size and cost of said improvements from those con-
structed in the first phase of the development, or any other
phase.
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ARTICLE XVIII
GENERAL PROVISIONS
Section 18.1. Headings. The headings used in this
Declaration are for convenience only and are not to be used to
interpret the meaning of any of the provisions of this Declara-
tion.
Section 18.2 Severability. The provisions of this
Declaration shall be deemed independent and severable, and the -
invalidity or partial invalidity or unenforceability of any
provision shall not invalidate any other provisions.
Section 18.3 Cumulative Remedies. Each remedy pro-
vided for in this Declaration shall be cumulative and not
exclusive. Failure to exercise any remedy provided for in this
Declaration shall not, under any circumstances, be construed as
a waiver thereof.
Section 18.4 18.4 Violations as Nuisance. Every act or
omission in violation of the provisions of this Declaration
shall constitute a nuisance and, in addition to all other
remedies herein set forth, may be abated or enjoined by any
owner, any member of the board, and the manager, or the Associa-
tion. -
Section 18.5 No Racial Restriction. No owner shall
execute or cause to be recorded any instrument which imposes a
restriction upon the sale, leasing or occupancy of this condo-
minium on the basis of race, sex, color or creed.
Section 18..6 Access to Books. Any owner may, at any ,
reasonable time and upon reasonable notice to the board of
manager at his own expense, cause an audit or inspection to be
made of the books and financial records of the Association.
S
Section 18.7 Liberal Construction. The provisions
of this Declaration shall be liberally construed to.effectuate
its purpose. Failure to enforce any provision hereof shall not
constitute a waiver of the right to enforce said provision
thereafter.
Section 18.8 Notification of Sale of Condominium.
Concurrently with the consummation of the sale of any condomin-
ium under circumstances whereby the transferee becomes an owner
thereof, or within five (5) business days thereafter, the trans-
feree shall notify the board in writing of such sale. Such
notification shall set forth the name of the transferee and his
mortgagee and transferor, the street address of the condominium
-I
purchased by the transfereee, the transferree's and the mortgagee's
mailing address, and the date of sale. Prior to the receipt of
such notification, any and all communications required or per-
mitted to be given by the Association, the board or the manager
shall be deemed to be duly made and given to the transferee if
duly and timely made and given to said transferee's transferor.
Nailing addresses may be changed at any time upon written noti-
fication to the board. Notices shall be deemed received forty
eight (48) hours after mailing if by certified mail, return
receipt requested and addressed to the a'ddress above specified.
Notices shall also be deemed received twenty four (24) hours
after being sent by telegram, or upon personal delivery to any
occupant of a condominium over the age of twelve (12) years.
Section 18.9 Number; Gender. The singular shall
include the plural and the plural the singular unless the
context requires the contrary, and the masculine, feminine and
neuter shall each include the masculine, feminine or neuter, as
the context requires.
Section 18.10 Exhibits. All exhibits referred to
are attached to this Declaration and incorporated by reference.
Section 18.11 Easements Reserved and Granted. Any
easements referred to in this Declaration shall be deemed
reserved or granted, or both reserved and granted, by reference
to this Declaration in a deed to any condominium.
Section 18.12 Binding Effect. This Declaration shall
inure to the benefit of and be binding on the successors and
assigns of the Declarant and the heirs, personal representatives,
grantees, tenants, successors and assigns of the owners.
Section 18.13 Unsegregated Real Estate Taxes. Until
such time as real property taxes have been segregated by the San
Diego County Assessor, they shall be paid by the respective
owners of condominiums. The proportionate share of the taxes
for a particular, condominium shall be determined by dividing
the initial sales price or offered initial sales price of the
condominium by the total initial sles.price and offered initial
sales prices of all condominiums within the development (the
term "offered initial sales price" means the price at which an
unsold condominium is then being offered for sale by the Decla-
rant). If, and to the extent that, taxes are not paid by any
owner of a condominium and are allowed to become delinquent,
they shall be collected from the delinquent owner by the Associ-
ation as a special assessment.
ME M-O
ARTICLE XIX
ARCHITECTURAL CONTROL
The Board of Directors shall have the full authority
over the architectural and landscape control of the Property
and must approve in writing any and all changes thereto. The
Board of Directors is authorized to delegate said duties and
responsibilities to an architectural committee in its sole
discretion.
No exterior changes, additions or alterations of
any type shall be erected, installed or maintained on the
Property, including, but not limited to, awnings, patio
covers, fences or landscape, unless said changes have been
submitted to and approved in writing by the Board of Directors.
The provisions of this Article shall not apply to lots
owned by Declarant for purposes of development, and all improve-
ments constructed by Declarant thereon shall be deemed in full
compliance with this Declaration.
The reconstruction after destruction by casualty or
otherwise of any Condominium which is accomplished in substantial
compliance with a condominium plan filed covering the portion
of the Covered Property in which such Condominium is situated
shall not require compliance with the provisions of this Article.
Such reconstruction shall be conclusively deemed to be in
substantial compliance with such condominium plan if it has
received the approval of a majority of the Condominium Owners
whose units were destroyed within the portion of the Covered
Property in which the Condominium being reconstructed is
located. This Section may not be modified or eliminated without
the prior vote or written assent of a majority of the Condominium
Owners.
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IN WITNESS WHEREOF, the undersigned has executed
this Declaration as of the date first set forth.
TAMARACK POINTE VENTURE,
A California joint venture
BY: GLENFED DEVELOPMENT CORPORATION,
A California corporation
By:
Mel Wynn, President
BY: THE WOODWARD COMPANIES, INC.
A California corporation
By:
Don E. Woodward, President
STATE OF CALIFORNIA )
ss.
COUNTY OF
On , 1985, before me, the under-
signed, a Notary Public in and for said State, personally appeared
Mel Wynn, personally known to me or proved to me on the basis
of satisfactory evidence to be the person who executed the within -
instrument as president or on behalf of GLENFED DEVELOPMENT
CORPORATION, the corporation therein named, and acknowledged to me
that the corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
-50-
STATE OF CALIFORNIA )
ss.
COUNTY OF
On , 1985, before me, the under-
signed, a Notary Public in and for said State, personally appeared
Don E. Woodward, personally known to me or proved to me on the
basis of satisfactory evidence to be the person who executed the
within instrument as president or on behalf of THE WOODWARD
COMPANIES, INC., the corporation therein named, and acknowledged
to me that the corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
S
51-
EXHIBIT "A't
THE PROPERTY
-5-
EXHIBIT 'tB"
RECREATIONAL FACILITIES
-53-
EXHIBIT "C"
LOCATION OF STORM DRAIN SYSTEM
-54-
EXHIBIT "D"
ANNEXATION PROPERTY
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FiLE:
CT9-, 1/
INDEX
BYLAWS OF
TAMARACK POINTE TOWNHOMES HOMEOWNERS ASSOCIATION
PAGE
ARTICLE I - NAME AND LOCATION 1
ARTICLE II - DEFINITIONS 1
Section 2.1 - Declaration 1
Section 2.2 - Other Definitions 1
ARTICLE III - MEMBERSHIP; VOTING RIGHTS
ARTICLE IV - MEETINGS OF MEMBERS
Section 4.1 - Annual Meetings 2
Section 4.2 - Special Meetings 2
Section 4.3 - Organizational Meeting of Members 2
Section 4.4 - Place of Meetings 2
Section 4.5 - Notice of Meetings 2
Section 4.6 - Quorum 2
Section 4.7 - Proxies 3
Section 4.8 - Order of Business 3
Section 4.9 - Parliamentary Procedure 3
Section 4.10 - Action Without Meeting 3
ARTICLE V - SELECTION AND TERM OF OFFICE OF BOARD
Section 5.1 - Number 4
Section 5.2 - Term of Office 4
Section 5.3 - Compensation 4
Section 5.4 - Idemnification of Directors, Officers
and Employees 4
ARTICLE VI - NOMINATION, ELECTION AND REMOVAL OF DIRECTORS
Section 6.1 - Nomination 5
Section 6.2 - Initial Homeowner Representation 5
Section 6.3 - Election 5
Section 6.4 - Cumulative Voting 5
Section 6.5 - Removal 5
Section 6.6 - Vacancies 6
A
INDEX - BYLAWS (Continued)
Page Two
ARTICLE VII - MEETING OF DIRECTORS
Section 7.1 - Regular Meetings 6
Section 7.2 - Special Meetings 6
Section 7.3 - Organization Meeting of Board 6
Section 7.4 - Quorum 7
Section 7.5 - Board Action Without a Meeting 7
Section 7.6 - Adjournment - Notice 7
Section 7.7 - Conduct of Meetings 7
Section 7.8 - Right of Members to Attend 7
Section 7.9 - Executive Sessions 7
ARTICLE VIII - POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 8.1 - Powers 8
Section 8.2 - Duties 8
Section 8.3 - Budgets and Financial Statements 8
ARTICLE IX - OFFICERS AND THEIR DUTIES
Section 9.1 - Enumeration of Officers 9
Section 9.2 - Election of Officers 9
Section 9.3 - Term 9
Section 9.4 - Special Appointments 10
Section 9.5 - Resignation and Removal 10
Section 9.6 - Vacancies 10
Section 9.7 - Multiple Offices 10
Section 9.8 - Duties 10
ARTICLE X - COMMITTEES 11
ARTICLE XI - BOOKS AND RECORDS
Section 11.1 - Inspection and Copying 11
Section 11.2 - Rules and Regulations 11
Section 11.3 - Rights of Directors 11
ARTICLE XII -ASSESSMENTS 12
INDEX - BYLAWS (Continued)
Page 3
ARTICLE XIII - AMENDMENTS 12
ARTICLE XIV - MISCELLANEOUS
Section 14.1 - Fiscal Year 13
Section 14.2 - Corporate Seal 13
Section 14.3 - Conflicts 13
Section 14.4 - Proof of Membership 13
Section 14.5 - Absentee Ballots 13
BYLAWS
OF
TAMARACK POINTE TOWNHOMES HOMEOWNERS ASSOCIATION
ARTICLE I
NAME AND LOCATION
The name of the corporation is TAMARACK POINTE TOWNHOMES
HOMEOWNERS ASSOCIATION (hereinafter referred to as the "Association").
The principal office of thecorporation shall be located within the
development (as hereinafter defined) or as close thereto as
practicable, in the City of Carlsbad, County of San Diego, State
of California.
ARTICLE II
DEFINITIONS
Section 2.1 Declaration. The "Declaration" shall
mean the Declaration of Covenants, Conditions, and Restrictions
Establishing a Plan of Condominium Ownership for TAMARACK POINTE
TOWNHOMES HOMEOWNERS ASSOCIATION, and any amendments thereto.
Section 2.2 Other Definitions. Each and every defini-
tion set forth in Article I of the Declaration shall have the
same meaning herein.
ARTICLE III
MEMBERSHIP; VOTING RIGHTS
The qualification for membership, the classes of
membership and the voting rights of members shall be as set
forth at Article V of the Declaration.
ARTICLE IV
MEETINGS OF MEMBERS
Sectibn 4.1 Annual Meetings. Annual meetings of the
members shall be held on such date and at such time as the board
of directors shall determine from time to time; provided, how-
ever, that the first of said annual meetings shall not commence
until subsequent to the organizational meeting as set forth in
Section 4.3 of this Article IV.
Section 4.2 Special Meetings. A special meeting of
the members shall be promptly called by the board upon:
(a) The vote for such meeting by a majority of a
quorum of the board, or
(b) Receipt of a written request for a special meeting
signed by members representing at least five percent (5%) of the
total voting power of the Association.
Section 4.3 Organizational Meeting of Members. The
organizational meeting of the members shall be deemed to be a
special meeting, and shall be held within forty-five (45) days
after the closing of the sale of the condominium which represents
the fifty-first percentile (51%) interest authorized for sale
under the first public report for any portion of the development,
but in no event shall the meeting be held later than six (6)
months after the close of escrow in the first condominium in the
development.
Section 4.4 Place of Meetings. Meetings of the mem-
bers shall be held within the development or a meeting place as
close thereto as possible. Unless unusual conditions exist,
meetings shall not be held outside San Diego County.
Section 4.5 Notice of Meetings. Written notice of
regular and special meetings shall be given to members of the
board by mailing a copy of such notice, postage prepaid, not less
than 10 nor more than 90 days before the date of any meeting to
each member entitled to vote thereat, addressed to the member's
address last appearing on the books of the Association, or
supplied by such member to the Association for the purpose of
such notice. Such notice shall specify the place, day and hour
of the meeting, and, in the case of a special meeting, the nature
of the business to be undertaken.
Section 4.6 Quorum. The presence at any meeting in
person or by proxy of members entitled to cast at least fifty-
one percent (51%) of the total votes of all members of the
Association shall constitute a quorum. In the absence of
a quorum, a majority of those present in person or by proxy
may adjourn the meeting to another time, but may not trans-
act any other business. An adjournment for lack of a quorum
of those in attendance shall be to a date not less than
five (5) days and not more than thirty (30) days from
-2-
the original meeting date. The quorum for an adjourned meeting
shall be twenty-five percent (257o) of the total voting power of
the Association. If a time and place for the adjourned meeting
is not fixed by those in attendance at the original meeting or
if for any reason a new date is fixed for the adjourned meeting
after adjournment, notice of the time and place of the adjourned
meeting shall be given to members in the manner prescribed for
regular meetings.
Section 4.7 Proxies. Every member entitled to
vote shall have the right to do so either in person, or by a
written proxy executed by such member, and filed with the
secretary of the Association; provided, that no such proxy
shall be valid after the expiration of eleven (11) months from
the date of its execution. Every proxy shall be revocable and
shall automatically cease when the ownership interest or interests
of such member entitling him to membership in 'the Association
ceases.
Section 4.8 Order of Business. The order of business
of all meetings of the members shall be as follows:
(a) Roll call;
(b) Proof of notice of meeting or waiver of notice;
(c) Reading of minutes of preceding meeting;
(d) Reports of board and officers;
(e) Election of directors, if any are to be elected;
(f) Unfinished business; and
(g) New business
Section 4.9 Parliamentary Procedure. Al]. questions
of parliamentary procedure shall be decided in accordance with
Roberts Rules of Order.
Section 4.10 Action Without Meeting. Any action which,
may be taken by the vote of members at a regular or special meeting,
except the election of directors where cumulative voting is allow-
able, may be taken without a meeting if done in compliance with
the provisions of Section 7513 of the Corporations Code.
-3-
ARTICLE V
SELECTION AND TERM OF OFFICE OF BOARD
Section 5.1 Number. The affairs of this Association
shall be managed by a board of three (3) directors, who are
required to be members of the Association.
Section 5.2 Term of Office. Until the holding of
the organizational meeting of the members, the board shall
consist of the incorporator of this Association. At the
organizational meeting of members, the members shall elect
two (2) directors to serve for a term commencing at the close
of the organizational meeting and continuing until the following
first annual meeting, and one (1) director to serve a term
commencing at the close of the organizational meeting and
continuing until the following second annual meeting. At the
expiration of the initial term of office of each respective
director, his successor shall be elected to serve for a term
of two (2) years, commencing immediately following the annual
meeting of members, and expiring two (2) annual meetings there-
after.
Section 5.3 Compensation. No director shall receive
compensation for any service he may render to the Association.
However, any director may be reimbursed for his actual expenses
incurred in the performance of his duties.
Section 5.4 Indemnification of Directors, Officers
and Employees. Except to the extent prohibited by then applicable
law, this Association shall reimburse, indemnify and hold harmless
each present and future director, officer and employee of this
Association from and against all loss, cost, liability and expense
which may be imposed upon or reasonably incurred by him, including
reasonable settlement payments, in connection with any claim,
action, suit or proceeding, or threat thereof, made or instituted,
in which he may be involved or be made a party by reason of his
being or having been a director, officer or employee of this
Association or such other Association, or by reason of any action
alleged to have been taken or omitted by him in such capacity.
If a disinterested majority of the board of this Association
(or, if a majority of the board is not disinterested, then
independent legal counsel) determines in good faith that such
person was acting in good faith (a) within what he reasonably
believed to be the scope of his authority or employment, and
(b) for a purpose which he reasonably believed to be in the best
interests of the Association.
The right of indemnification provided in this Section
shall inure to each person referred to in this Section, and in
the event of his death shall extend to his legal representatives.
The right of indemnification provided in this Section shall not be
-4-
exclusive of any other rights to which any such person, or any
other individual, may be entitled as a matter of law (including,
without limitation, his rights under Section 7237 of the California
Corporations Code), or under any agreement, vote of directors
or stockholders or otherwise.
ARTICLE VI
NOMINATION, ELECTION AND REMOVAL OF DIRECTORS
Section 6.1 Nomination. Nomination for election
to the board shall be made by a nominating committee. Nominations
may also be made from the floor at the annual meeting of members.
The nominating committee shall consist of a chairman, who shall
be a member of the board, and two (2) or more members of the
Association. The nominating committee shall be appointed by the
board subsequent to each annual meeting of the members, to serve
from the close of such annual meeting until the close of the next
annual meeting. The nominating committee shall piake as many
nominations for election to the board as it shall, in its discretion,
determine, but not less than the number of vacancies that are to
be filled. All such nominations must be made from among members.
Section 6.2 Initial Homeowner Representation. Not less than
20% of the representatives on the board shall be elected solely
by the votes of owners other than the Declarant at any election in
which the Declarant retains a majority of the voting power of the
Association.
Section 6.3 Election. Election to the board and
removal therefrom shall be by secret written ballot. At any such
election the members or their proxies may cast, in respect to each
vacancy, as many votes as they are entitled to exercise under the
provisions of the Declaration. The persons receiving the largest
number of votes shall be elected, except as is otherwise provided
in Section 6.2.
Section 6.4 Cumulative Voting. The election and
removal of directors shall be by cumulative voting in accordance
with California Corporations Code, Section 7615, and pursuant
to subsection (b) of California Corporations Code, Section 7615,
no member shall be entitled to cumulate votes for a candidate or
candidates unless such candidate's name or candidates' names have
been placed in nomination prior to the voting and the member has
given notice at the meeting prior to the voting of the member's
intention to cumulate votes. If any one member has given such
notice, all members may cumulate their votes for candidates in
nomination.
Section 6.5 Removal. Any director may be removed from
the board with or without cause by a majority vote of the members
of the Association; provided, however, that unless the entire
board is removed, an individual director shall not be removed
prior to the expiration of his term of office if the votes cast
against removal would be sufficient to elect the board member if
voted cumulatively at an election at which the same total number
of votes were cast and the entire number of directors authorized
at the time of the most recent election of the board members were
then being elected. -c-
Notwithstanding the foregoing provisions, any director
appointed pursuant to Section 6.2 may be removed from office prior
to the expiration of his term of office only by the vote of at
least a s imple majority of the voting power residing in members
other than Declarant.
Section 6.6 Vacancies. In the event of death, or
resignation, of a director, his successor shall be elected by the
remaining members of the board and shall serve for the unexpired
term of his predecessor. The remaining members of the board shall
not, however, have the power to reappoint the removed director
or directors.
ARTICLE VII
MEETING OF DIRECTORS
Section 7.1 Regular Meetings. Regular meetings of
the board shall be held monthly, at such time as may be fixed
from time to time by resolution of the board. Should said
meeting fall upon a legal holiday, then that meeting shall be
held at the same time on the next day which is not a legal
holiday.
Notice of the time and place of a regular meeting shall
be posted at a prominent place or places within the common area
and shall be communicated to board members not less than four (4)
days prior to the meeting, provided however, that notice of a
meeting need not be given to any board member who has signed a
waiver of notice or a written consent to holding of the meeting.
Section 7.2 Special Meetings. Special meetings of
the board may be called by written notice signed by the president
of the Association or by any two members of the board other than
the president. The notice shall specify the time and place of
the meeting and the nature of any special business to be considered.
Notice shall be posted in a manner prescribed for notice
of regular meetings and shall be sent to all board members not less
than seventy-two (72) hours prior to the scheduled time of the
meeting; provided, however, that notice of the meeting need not be
given to any board member who signed a waiver of notice or a written
consent to holding of the meeting.
Section 7.3 Organization Meeting of Board. The first
meeting of a newly elected board shall be an organizational meeting
and shall be held within ten (10) days of election of the board, at
such place as shall be fixed and announced by the directors at the
meeting at which such directors were elected for the purpose of
organization, election of officers and the transaction of other
business. No notice shall be necessary to the newly elected
directors in order legally to constitute such meeting, provided
I
a majority of the whole board shall be present when the time and
place are announced.
Section 7.4 Quorum. A majority of the number of
directors shall constitute a quorum for the transaction of business.
Every act or decision done or made by a majority of the directors
present at a duly held meeting at which a quorum is present shall
be regarded as the act of the board, unless a greater number be
required by law or by the articles of incorporation or by the
declaration.
Section 7.5 Board Action Without A Meeting. The
directors shall have the right to take any action in the absence
of a meeting which they could take at a meeting by obtaining the
unanimous written consent of all the directors to the action to be
taken. Any action so approved shall have the same effect as though
taken at a meeting of the directors. If the board resolves by
unanimous written consent to take action, an explanation of the action
taken shall be posted at a prominent place or places within the
Common Area or the development within three (3) days after the written
consent of all directors have been obtained.
Section 7.6 Adjournment - Notice. A quorum of the
directors may adjourn any director's meeting to meet again at a
stated day and hour. Notice of the time and place of holding an
adjourned meeting shall be given to all directors. In the absence
of a quorum, a majority of the directors present at any directors'
meeting, either regular or special, may adjourn from time to time
until the time fixed for the next regular meeting of the board.
Section 7.7 Conduct of Meetings. The president, or
in his absence, any director selected by the directors present,
shall preside at meetings of the board. The secretary of the
corporation, or in his absence, any person appointed by the
presiding officer, shall act as secretary of the board.
Section 7.8 Right of Members to Attend. Regular and
special meetings of the board shall be open to all members of the
Association; provided, however, that Association members who are
not on the board may not participate in any deliverance or
discussion unless expressly so authorized by the vote of a
majority of a quorum of the board.
Section 7.9 Executive Sessions. The board may, with
the approval of a majority of a quorum of its members, adjourn a
meeting and reconvene in executive session to discuss and vote
upon personnel matters, litigation in which the Association is
or may become involved and orders of business of a similar nature.
The nature of any and all business to be considered in executive
session shall first be announced in open session.
-7-
ARTICLE VIII
POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 8.1 Powers. The board shall have all
powers conferred upon the Association as set forth herein and in
the Declaration, excepting only those powers expressly reserved
to members.
Section 8.2 Duties. It shall be the duty of the
board to:
(a) Cause to be kept a complete record of all acts and
corporate affairs and to present a statement thereof to the
members at each annual meeting of the members, or at any special
meeting when such statement is requested in writing by one-fourth
(1/4) of the Class A members who are entitled to vote.
(b) Supervise all officers, agents and employees of
this Association, and to see that their duties are properly
performed.
(c) Delegate its powers as provided in this Declaration.
Section 8.3 Budgets and Financial Statements. The
board shall cause to be regularly prepared and distributed to all
members regardless of the number of members or the amount of
assets of the Association as follows:
(a) A budget consisting of at least the following
information for each fiscal year shall be distributed not less
than forty-five (45) days prior to the beginning of the fiscal
year:
(i) Estimated revenue and expenses on an accrual
basis.
(ii) The amount of the total cash reserves of the
Association currently available for replacement or major repair
of common facilities and for contingencies.
(iii) An itemized estimate of the remaining life
of, and the methods of funding to defray repair, replacement or
additions to major components of the common areas and facilities
for which the Association is responsible.
(iv) A general statement setting forth the procedures
used by the governing body in the calculation and establishment
of reserves to defray the costs of repair, replacement or additions
to major components of the common areas and facilities for which
the Association is responsible.
(b) A balance sheet---as of an accounting date which
is the last day of the month closest in time to six (6) months
from the date of closing of the first sale of a condominium in
the development--- and an operating statement for the period from
the date of the first closing to the said accounting date, shall
be distributed within sixty (60) days after the accounting date.
This operating statement shall include a schedule of assessments
received and receivable identified by the number of the condo-
minium interest and the name of the entity assessed.
(c) An annual report consisting of the following shall
be distributed within one hundred-twenty (120) days after the
close of the fiscal year:
(i) A balance sheet as of the end of the fiscal
year.
(ii) An operating (income) statement for the
fiscal year.
(iii) A statement of changes in fiiancia1 position
for the fiscal year.
For any fiscal year in which the gross income to the
Association exceeds $75,000, a copy of the review of the annual
report prepared in accordance with generally accepted accounting
principles by a licensee of the California State Board of Accountancy
shall also be distributed. If the report referred to in (c)
above is not prepared by an independent accountant, it shall be
accompanied by the certificate of an authorized officer of the
Association that the statements were prepared without independent
audit or review from the books and records of the Association.
In addition to financial statements, the governing body shall
annually distribute within sixty (60) days prior to the beginning
of the fiscal year a statement of the Association's policies and
practices in enforcing its remedies against members for defaults
in the payment of regular and special assessments including the
recording and foreclosing of liens against members' condominium
interests.
ARTICLE IX
OFFICERS AND THEIR DUTIES
Section 9.1 Enumeration of Officers. The officers
of the Association shall be a president and vice president, who
shall at all times be members of the board, a secretary, and a
treasurer, and such other officers as the board may from time to
time by resolution create..
Section 9.2 Election of Officers. The election of
officers shall take place at the organizational meeting of the
board following each annual meeting of the members.
Section 9.3 Term. The officers of this Association
shall be elected annually by the board and each shall hold office
for one (1) year unless he shall sooner resign, or shall be
removed, or shall otherwise be or become disqualified to serve.
Section 9.4 Special Appointments. The board may
elect such other officers as the affairs of the Association may
require, each of whom shall hold office for such period, have
such authority, and perform such duties as the board may, from
time to time, determine.
Section 9.5 Resignation and Removal. Any officer
may be removed from office with or without cause by the board.
Any officer may resign at any time after given written notice to
the board, the president or the secretary. Such resignation
shall take effect on the date of receipt of such notice or at any
later time specified therein, and, unless otherwise specified
therein, the acceptance of such resignation shall not be neces-
sary to make it effective.
Section 9.6 Vacancies. A vacancy in any office may
be filled by appointment by the board. The officer appointed to
such vacancy shall serve for the remainder of the term of the
officer he replaces.
Section 9.7 Multiple Offices. The offices of the
secretary and treasurer may be held by the same person. No person
shall simultaneously hold more than one of any of the other offices
except in the case of special offices created pursuant to Section 9.4.
Section 9.8 Duties. The duties of the officers are
as follows:
(a) President. The president shall preside at all
meetings of the board, shall see that orders and resolutions of
the board are carried out, shall sign all leases, mortgages,
deeds and shall co-sign all promissory notes.
(b) Vice President. The vice president shall act in
the place and stead of the president in the event of his absence,
inability or refusal to act, and shall perform such other duties
as may be required of him by the board.
(c) Secretary. The secretary shall record the votes
and keep the minutes of all meetings and proceedings of the board
and of the members, shall keep the corporate seal of the Associa-
tion and affix it on all papers requiring said seal, shall serve
notice of meetings of the board and of the members, shall keep
appropriate current records showing the members of the Association
together with their addresses, and shall perform such other
duties as required by the board.
(d) Treasurer. The treasurer shall be responsible for
receiving and depositing in appropriate bank accounts all monies
of the Association and shall be responsible for disbursing such
funds as directed by resolution of the board, shall co-sign
all promissory notes of the Association, shall keep proper books
of account, shall prepare budgets and financial statements on
behalf of the Association, and shall perform such other duties as
required by the board.
-10-
ARTICLE X
COMMITTEES
The Association shall appoint a nominating committee
as provided in these bylaws. In addition, the board shall
appoint such other committees as it deems appropriate in order
to carry out its purpose.
ARTICLE XI
BOOKS AND RECORDS
Section 11.1 Inspection and Copying. The membership
register, books of account and minutes of meetings of the members,
of the board and of committees of the board of the Association
shall be made available for inspection and copying by any member
of the Association-.--or by his duly appointed representative --- at
any reasonable time and for a purpose reasonably related to his
interest as a member, at the office of the Association or at such
other place within the development as the board shall prescribe.
Section 11.2 Rules and Regulations. The board shall
establish reasonable rules with respect to:
(a) Notice to be given to the custodian of records by
the member desiring to make the inspection.
(b) Hours and days of the week when such an inspection
may be made.
(c) Payment of the cost of reproducing copies of
documents requested by a member.
Section 11.3 Rights of Directors. Every director
shall have the absolute right at any reasonable time to inspect
all books, records and documents of the Association and the
physical properties owned or controlled by the Association. The
right of inspection by a director includes the right to make
extracts and copies of documents.
-11--
ARTICLE XII
ASSESSMENTS
As more fully provided in the Declaration, each member
is obliged to pay to the Association regular assessments which
are secured by a continuing lien upon the property against which
the assessment is made. Any assessments which are not paid when
due shall be delinquent. If the assessmentis not paid when due,
it shall bear interest from the date of delinquency at ten percent
(lO%)per annum, and the Association may bring an action at law
against the owner personally obligated to pay the same or foreclose
the lien against the property, and interest, costs and actual
attorneys' fees of any such action shall be added to the amount
of such assessment. No owner may waive, or otherwise be
relieved of liability for the assessments provided for herein by
non-use of the common area or abandonment of his condominium.
The Association shall have the right to impose mbnetary penalties,
temporary suspensions of an owner's rights as a member of the
Association or other appropriate discipline for failure to comply
with the governing instruments provided that the procedures for
notice and hearing, satisfying the minimum requirements of
Section 7341 of the Corporations Code, are followed with respect
to the accused member before a decision to impose discipline is
reached. The Association may bring an action at law against
the owner personally obligated to pay the same or foreclose the
lien against the property, and interest, costs and actual attorneys'
fees of any such action shall be added to the amount of such
assessment.
ARTICLE XIII
AMENDMENTS
These bylaws may be amended, at a regular or special
meeting of the members, by the vote or written assent. of:
(a) At least a bare majority of a quorum of the
voting power of the Association; and
(b) At least a bare majority of the votes of members
other than the Declarant.
Notwithstanding the above, the percentage of a quorum
or of the voting power of the Association or of members other
than the Declarant necessary to amend a specific clause or
provision in these bylaws shall not be less than the prescribed
percentage of affirmative votes required for action to be taken
under that clause.
-12-
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Fiscal Year. The fiscal year of the
Association shall be determined by the Board of Directors from
time to time, except that the first fiscal year shall begin on
the date of incorporation of the Association.
Section 14.2 Corporate Seal. The Association shall
have a seal in the circular form, containing the. name of the
Association, and "Incorporated ," and
"California."
Section 14.3 Conflict. In the case of any conflict
between the articles and these bylaws, the arti.1cles shall con-
trol; and in the case of any conflict between the Declaration
and these bylaws, the Declaration shall control.
Section 14.4 Proof of Membership. No person shall
exercise the rights of membership in the Association until satis-
factory proof thereof has been furnished to the secretary. Such
proof may consist of either a copy of recorded deed or title
insurance policy showing said person to be the owner of a con-
dominium in the development entitling him to membership. Such
deed or policy shall be deemed conclusive in the absence of a
conflicting claim based on a later deed or policy.
Section 14.5 Absentee Ballots. The board may take
such provisions as it may consider necessary or desirable for
absentee ballots.
-13-
CERTIFICATE OF ADOPTION BYLAWS
The undersigned person appointed in the articles
to act as the incorporator of the above named corporation
hereby adopts the same as the bylaws of said corporation.
Executed this day of , 1985.
SCOTT WOOD WARD
PiA1C. FIL
CT gq.,t(
WHEN RECORDED NAIL TO:
TAMARACK POINTE VENTURE
5100 Campus Drive
Newport Beach, California 92660
Attention: Mr. Scott Woodward
(Space Above for Recorder's Use Only)
SUPPLEMENTARY DECLARATION OF
ANNEXATION
TOWNHOME S
THIS SUPPLEMENTARY DECLARATION OF ANNEXATION FOR
TAMARACK POINTE TOWNHONES HOMEOWNERS ASSOCIATION is executed
this day of , 1985, by TAMARACK
POINTE VENTURE, a California joint venture (hereinafter
referred to as "Declarant").
W I T N E S S E T H:
WHEREAS, Declarant is the owner of certain property
(hereinafter referred to as the "Annexed Property") in the
County of San Diego, State of California, described on
Exhibit "A" attached hereto and incorporated herein by this
reference.
WHEREAS, Declarant will convey the Annexed Property
subject to certain protective covenants, conditions, restric-
020885
tions, reservations, liens and charges as set forth in that
certain Declaration of Covenants, Conditions and Restrictions
which was recorded on in Book , Pages
of the Official Records of San Diego County,
California, and any amendments thereto (hereinafter referred to
as the "Declaration") specifically pursuant to the provisions
of Article XIV entitled "Annexations" of the Declaration.
NOW, THEREFORE, it is declared as follows:
1. All of the Annexed Property is hereby made subject
to all the terms, covenants, conditions and provisions as set
forth in the Declaration and specifically pursuant to the
provisions of the Section entitled "Annexations" of the Declara-
tion to all intents and purposes as though said land were a part
of the Initial Property as defined in the Declaration.
2. The recordation of this Supplementary Declaration
of Annexation shall constitute and effectuate the annexation of
the Annexed Property, making said real property subject to the
Declaration and subject to the functions, powers and jurisdic-
tion of Tamarack Pointe Townhomes Homeowners Association, a
California nonprofit mutual benefit corporation (hereinafter
referred to as the "Association"), as provided in the Declaration,
and thereafter said real property shall be part of the
Property as that term is defined in the Declaration and all
of the Owners of condominiums as those terms are defined in the
Declaration, in the Annexed Property shall automatically be
Members of the Association and Owners under the Declaration.
Irm
3. All easements reserved by Declarant in Article II
of the Declaration are hereby reserved by Declarant over the
- Annexed Property, specifically an easement to maintain that
certain private storm drain system as depicted on Exhibit "B"
attached hereto, together with the right to grant and transfer
the same as provided in the Declaration.
4. Regular Assessments shall commence as to all
condominiums in the Annexed Property on the first day of the
month following the first conveyance of a condominium within
the Annexed Property.
IN WITNESS WHEREOF, this instrument is executed as
of the day and hear first above written.
TAMARACK POINT VENTURE,
A California joint venture
BY: GLENFED DEVELOPMENT CORPORATION,
A California corporation
By:
Mel Wynn, President
BY: THE WOODWARD COMPANIES, INC.
A California corporation
By:
Don E. Woodward, President
-3-
STATE OF CALIFORNIA )
COUNTY OF
On , 1985, before me, the
undersigned, a Notary Public in and for said State, personally
appeared Mel Wynn, personally known to me or proved to me on
the basis of satisfactory evidence to be the person who executed
the within instrument as President or on behalf of GLENFED
DEVELOPMENT CORPORATION, the corporation therein named, and
acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA
COUNTY OF
On , 1985, before me, the
undersigned, a Notary Public in and for said State, personally
appeared Don E. Woodward, personally known to me or proved
to me on the basis of satisfactory evidence to be the person
who executed the within instrument as President or on behalf
of THE WOODWARD COMPANIES, INC., the corporation therein
named, and acknowledged to me that the corporation executed
it.
WITNESS my hand and official seal.
Notary Public in and for said State
-4-
EXHIBIT "A"
LEGAL DESRIPTION OF PROPERTY
EXHIBIT "B"
LOCATION OF STORM DRAIN SYSTEM
PLNG F,LE
cr aq-1V
WHEN RECORDED MAIL TO:
TAMARACK POINTE VENTURE
5100 Campus Drive
Newport Beach, California 92660
Attention: Mr. Scott Woodward
(Space Above for Recorder's Use Only)
SUPPLEMENTARY DECLARATION OF
ANNEXATION
(GARDEN HONES)
THIS SUPPLEMENTARY DECLARATION OF ANNEXATION FOR
TAMARACK POINTE MASTER ASSOCIATION is executed this day
of , 1985, by TAMARACK POINTE VENTURE, a
California joint venture (hereinafter referred to as "Declarant").
WITNESSETH:
WHEREAS, Declarant is the owner of certain property
(hereinafter referred to as the "Annexed Property") in the
County of San Diego, State of California, described on
Exhibit "A" attached hereto and incorporated herein by this
reference.
WHEREAS, Declarant will convey the Annexed Property
subject to certain protective covenants, conditions, restric-
tions, reservations, liens and charges as set forth in that
certain Declaration of Covenants, Conditions and Restrictions
for Tamarack Pointe Master Association which was recorded on
in Book......., Pages...... of
the Official Records of San Diego County, California, and
any amendments thereto (hereinafter referred to as the
"Declaration") specifically pursuant to the provisions of
Article XIV entitles "Annexations" of the Declaration.
NOW, THEREFORE, it is declared as follows:
1. All of the Annexed Property is hereby made subject
to all the terms, covenants, conditions and provisions as set
forth in the Declaration and specifically pursuant to the
provisions of the Section entitled "Annexations" of the
Declaration to all intents and purposes as though said land
were a part of the initial Covered Property as defined in the
Declaration.
2. The recordation of this Supplementary Declaration
of Annexation shall constitute and effectuate the annexation of
the Annexed Property, making said real property subject to the
Declaration and subject to the functions, powers and jurisdic-
tion of Tamarack Pointe Master Association, a California
-2-
non-profit mutual benefit corporation (hereinafter referred to
as the "Association"), as provided in the Declaration, and
thereafter said real property shall be part of the Covered
Property as that term is defined in the Declaration and all
of the Owners of Lots as those terms are defined in the
Declaration, in the Annexed Property shall automatically be
Members of the Association and Owners under the Declaration.
3. All easements reserved by Declarant in Article
XIII of the Declaration are hereby reserved by Declarant
over the Annexed Property, specifically those easemen.ts.. for.
certain residences described in Section 13-9 of the Declaration
which are described in Exhibit "B" attached hereto, together
with the right to grant and transfer the same as provided in
the Declaration.
4. Regular Assessments shall commence as to all
Lots in the Annexed Property on the first day of the month
following the first conveyance of a Lot within the Annexed
Property.
IN WITNESS WHEREOF, this instrument is executed as
of the day and year first above written.
TAMARACK POINTE VENTURE,
A California joint venture
BY: GLENFED DEVELOPMENT CORPORATION,
A California corporation
By: ..........................
Mel Wynn, President
BY: THE WOODWARD COMPANIES, INC.
A California corporation
By:
Don E. Woodward, President
STATE OF CALIFORNIA )
ss.
COUNTY OF . )
On , 1985, befbre me, the
undersigned, a Notary Public in and for said State, personally
appeared Mel Wynn, personally known to me or proved to me on
the basis of satisfactory evidence to be the person who executed
the within instrument as President or on behalf of GLENFED
DEVELOPMENT CORPORATION, the corporation therein named, and
acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA )
ss.
COUNTY OF . )
On , 1985, before me, the
undersigned, a Notary Public in and for said State, personally
appeared Don E. Woodward, personally known to me or proved to
me on the basis of satisfactory evidence to be the person who
executed the within instrument as President or on behalf of
THE WOODWARD COMPANIES, INC., the corporation therein named,
and acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
Notary Public in and for said State
-4-
EXHIBIT "A"
ANNEXED PROPERTY
EXHIBIT "B"
EASEMENTS FOR CERTAIN RESIDENCES
ZERO LOT LINE
IC.X ENGINEERING CO. iATE 8:47 All 3 JAR.. 1935 - DF!P1E/5 400 0 4000 0 200.0 200.0 17.0 25.0 0.0 2 5 5120 /AIRJN1TS
'
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