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HomeMy WebLinkAboutCT 85-13; ALTON RUDEN; Tentative Map (CT)A MOPPLICATION )75- r1Y 53 L)P - ø REQUEST Ozone Change OMinor Redevelopment Permit OGeneral Plan Amendment 0 Precise Development Plan Tentative Tract Map OSpecific Plan Planned Unit Development 0 Site Development Plan OMajor Condominium Permit 0 Conditional Use Permit (]Minor Condominium Permit DVariance OMaster Plan Dplanning Commission Determination DMajpr Condominium Conversion []Special Use Permit DMajor Redevelopment Permit DAdministrative Variance (check other boxes if appropriate) Z it escripton o Project (attach additional sheets if necessaçy) tot S !y rl V ate- uljfvlye~ z ad caT Parce intc i of -ceJs serve a PU t d:e M 5 ot-i eaZ ôt rsWi • 2- prcejpc VVI ey4_eXcep for 0 ie iøe '00 V,'((e.,'cz- pc Location of Project Cay 5Tre t belei B&'sooI A ve, ak,.Jo&k Ave._- Legal Descripbiofl(COrlete) Pevce-I 1/ f fe( iV)j 1 , iI for'tofr) f Lots 3?- and 3'( c,f - flvsotq .0 AI41) o, Mp Assessors Parcel Numbers i 81 Existing Land Use zone 7- General Plan iw de?5'ity 2%e51IevTh1 $/#-/e f,y /i ç )t1I VC'ièid Propose ne Proposed General Plan - iEAcreage Sa )0 r1C) 4cIr'es Owners EDict Applicants Name (Print. or Type) Name (Print or Type) j7,'e Lee V'!fescz.. ,4!fôi L.40 Lor&ia RAM -- tflIñjdress Mailing Address (7P )a& Ave 273 I\AeSa f)V7ve - '3Ey and State Zip Telephone City and State Zip Telephone C ai'ls tac, ca, [IT 9oo ' 43- oc-ca ide., cahc, fZo$7' 7S 7 -31/2- I CERTIFY THAT I AM THE LEGAL OWNER AND I CERTIFY THAT I AM THE OWNER'S REPRESENTATIVE THAT ALL THE ABOVE INFORMATION IS TRUE AND THAT ALL THE ABOVE INFORMATION IS TRUE AND CORRECT MY KNOWLEDGE. AND CORRECT TO THE BEST OF MY KNOWLEDGE. SIGNATURE ,4zPATE i-1a ' SIGNATURE DATE fV1 i let C2Cv - on Red'd Pec Fees IITT 1.71 - /A ip a ti on Re c AssIgned il c fase Nuffer JCi--/3 /ø 711L -d3 I. SPECIFIC REQUIREMENTS General Plan Amendment/Zone Change 1. Application Form 2. General Requirement Items H-Q 3. Reproducible 1:500 scale map of subject property showing requested zoning and surrounding zoning and land uses. 4. Fee: General Plan Amendment $200.00 + $5.00 per lot or acre. Zone Change: $500.00 Master Plan/Specific Plan/Precise Development Plan 1 Application Form Z. General Requirement Items: - thirteen (13) copies of items A-D - items E-Q 3. Fee: Master Plan $1,000 + $2.00 per/acre Specific Plan $1,000.00 Master Plan Amendment: Minor $50.00 + 2.00 acre Major $500.00 + 2.00 acre Tentative Tract Map 1. Application Form 2. Thirteen (13) copies of the Tentative Tract Map 3. General Requirement Items - thirteen (13) copies of items A-C - items 5, G'-K, M-R 4. Fee: $500.00 (1-25 lots or units) $750.00 (26-100 lots or units) • $1,000 (100 + lots or units) Extension: 1/2 of original fee • Revision: 1/4 of tentative map and regular fee on additional lots or acres.- Major Planned Development (5 or more units) 1. Application Form 2. General Requirement Items: - - thirteen (13) copies of items A-D • - items E-Q 3. Conversion to Condominiums - list of names and addresses of all tenants of the project, proof of notification of the tenants 60 days prior to filing • • - tentative map. 4. Fee: $200.00 $5.00 per unit for notification of tenants • NOTE; Tentative Tract Map Required • Minor Planned Dve1oeeent(4or less units) 1 . Appi ict ion Furs-i 2. General Requirement Items: - three (3) copies ot items A-D items K, L, 0, P Q 3. Conversion to Condominiums - list of names and addresses of' all tenants of the units to be converted to condominiums. 4. Fee: $50.00 + $1.00 per unit NOTE: Tentative Parcel Map Required Site Development Plan 1. ApplicatIon Form 2. General Requirement Items - thirteen (13) copies of items A-D - items E-L,'O, P 1 0 3. Fee: $350.00 Conditional Use Permit/Special Use Permit 1. Application Form 2. General Requirement Items: - thirteen (13) copies of items A-D - items E-Q (items M,N & 0 not required for Special Use Permit) 3. Fee: $400.00 Variance 1. Application Form 2. General Requirement Items: - thirteen (13) copies of item A - items E, G, H, .3-N, I if applicable, and P (see Title 19. Environment) 3. Variance Supplemental Sheet 4. Fee: Single Family = $100.00 Other = $250.00 Planning Commission Determination 1. Application Form 2. One page statement precisely indicating the determination request. 3. General Requirement Items: - thirteen (13) copies of items A and D - items H, K, and L. 4. Fee: $25.00 Administrative Variance - 1. Application Form 2. General Requirement Items: - (3) copies of itses A & D if applicable - items C, H, .3-N, and P 3. Fee: $100.00 Major and Minor Redevelopment Permits 1. A0p.1jcation Form 2. General Requirement Items: - thirteen (13) copies of Item A-O - items (Major) E-N, P, R (if applicable) material samples. - items (Minor) E-H, .3-N, P, material samples 3. Fee. (Not established except where other permit is necessary). GENERAL REQUIREMENTS H. One (1) copy of colored site plan (24 1lx36") F. One (1) copy of colored elevations (24 1lx36") A. Site Plan: Shall include the following information: C. One (1) copy each of 8 1/2"xll" site plan and elevations. - Name and address of applicant, engineer and/or H. One (1) copy of -8 1/2"xll" location map (suggested scale, architect, etc. 1:200" - vicinity maps on the site plan are not acceptable) - All easements I. Environmental Impact Assessment Form ($100) - Dimensioned locations of: J. Public Facility Agreement: 2 copies: One (1) notorized access, both pedestrian and vehicular, showing original, One (1) reproduced copy. service areas and points of ingress and egress K. Disclosure Statement off-street parking and loading areas showing L. Photostatic copy of deed with complete legal description of location, number and typical dimension of spaces, subject property or other form of description acceptable to and wheel stops. the Land Use Planning Manager. - distances between buildings and/or structures . M. Property Owners' List and Addressed Stamped Envelo pes - building setbacks (front, rear and sides) (Not needed for Site Development Plan, Special Use Permit - location, height, and materials of walls and fences and Minor Condominium Permit) 1). a typewritten list of the - location of freestanding signs names and addresses of all property owners and Qccupants - all driveways to scale on adjacent and across the within a 300 foot radius of subject property. The list street properties for a distance of 100 feet beyond shall include the San Diego County Assessor's parcel number • the IThits of subject site, from the latest assessment rolls. 2) Two separate sets of - existing curbs, gutters, sidewalks and existing legal size, addressed stamped envelopes (four sets for paving widths within 100 feet on adjacent and across condominium conversions) of the property owners and the street properties. occupants within a 300-foot radius of subject property. or - typical street section - any address other than single family residence, apartrner or - any existing median islands within 100 feet of suite number must be included. DO NOT TYPE ASSESSOR'S subject site. PARCEL NUMBER ON ENVELOPES AND LEAVE RETURN OF ADDRESS - nearest cross streets on both sides with plus or BLANK. 3) For Condominium Conversions, two separate sets of minus distances from subject site. addressed, stamped envelopes of all existing tenants is - location of all buildings within 100 feet of subject required. properties. N. 300 Foot Radius Map - a vicinity map showing major cross streets S (Not needed for Site Development Plan, Special Use Permit - a summary table indicating the following and Minor Condominium Permit). A map to scale not less than information: 1" = 200' showing each lot within 300 feet of the exterior site acreage boundaries of the subject property. Each of these lots existing zone and land use shall be consecutively numbered and correspond with the pro- proposed land use petty owner's list. The scale of the map may be reduced to .total building coverage a scale acceptable to the Land Use Planning Manager if the building sq. footage required scale is impractical. percent landscaping 0. For residential projects within Vista, Encinitas or San number of parking spaces Dieguito School Districts, the applicant shall indicate sq. footage of open/recreationa], whether he prefers to dedicate land for school facilities, space (if applicable) to pay a fee in lieu thereof, or do a combination of these. cubic footage of storage space If the applicant prefers to dedicate land, he shall sug 't (if applicable) the specific land. 'I. B. Preliminary Grading and Drainage Plan* (24"x36") - existing and proposed contours on the site and within 100 feet of the boundaries of the site. - elevations of the site - existing on-site trees; those to be removed and those to be saved. C. Preliminary Landscape and Irrigation Plan* (24"x36") - location of planting areas and typical plant materials (quantity and size) - location of areas to be irrigated D. Building Elevations and Floor Plans* (2411 x36" - floor plans with suaf otages included - location and size of storage areas - all buildings, structures, walls and/or fences, signs and exterior lights. For residential projects within the Carlsbad Unified School District and the San Marco Unified School District, the applicant shall submit written confirmation that school facilities will be available and serve the project at time of need. P. Preliminary Title Report Q. proof of sewer availability if located in the Leucadia County Water District. R. Statement of agreement to waive tentative tiact map time limits. *NOTE. ALL EXHIBITS MUST BE FOLDED IN A SIZE NOT TO EXCEED 8 1/2"x11". So, PLEMENI'AI INFORMATION FORM VARIANCE /V/A• 1) Gross Acres (or square footage, if less than acre) 2) Zone 3) General Plan Land Use Designation 4) By law a Variance may be approved only if certain facts are found to exist. Please read these requirements carefully and explain how the proposed project ItEets each of these facts. Use additicnal sheets if necessary.. a) Explain why there are exceptional or extraordinary circumstances or conditions applicable to the property or to the intended use that do not apply generally to the other property Or clas& of use in the same vicinity and zaie: . . .. b) Explain why such variance is necessary for the preservaticn and enjoyment of a substantial property right possessed by other property in the same vicinity and zcne but which is denied to the property in qaesticn: c) Explain why the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or irnprovents in such vicinity and zone in which the property is located d) Explain why the granting of such variance will not adversely affect the comprehensive general plan: .. S APPLICANT DISCLOSURE FORM In order to assist the members of the Planning. Commission and City Council to avoid possible conflicts of interest, all appli- 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 is completed and accurate. If at any.ime 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 part -ner 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, corporate number, date of incorporation or syndication, corporate or syn- dicate address r and the full names and addresses of each individual shareholder or syndicate member. Should the corpor- ation be a publically held corporation, then state the full name and address of the corporation, the place of its incorporation, number of shareholders, and the name and address of the officers of the corporation. Should you feel that additional information needs to be provided in order to provide a full disclosure, please include it. 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. )o-ti Signature Lee- RL,cIer l-.-Orfria Ridevi Name (Prin Relationship to Applicatic d'property owner-,)-Agent) '( 17 'TVTSED 3/80 Mar. ? Date If after the information you have submitted has been reviewed, it is determined ... that further information iequired, you will be so advJI.. APPLICANT: pie Le((!escz A 1'hM L 44 Lrma Rtcle'i Name (ihdividuaA join venture, corporation,. syndication) J-191 Bass u.i Ave-', c4glaI 733 Mesa PrvQ O(ePMS/dQ Business Address AGENT: : Telephone Number .. . . . . S .. . Name eid i': Business Address . S.. . . ::. ..: Telephone Number Name (individual, partner, joint Tomeress venture, corporation, syndication) 0 Business Address . . .. Telephone Number Telephone Number Home Address Business Address Telephone Number Telephone Number (Attach more sheets if necessary) - I/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. S Applicants BY t,Or, Pa r. nr' 1-1~11L U1 wnoiiy owned subsidiary of such no case prejudice tir rights of any such i nsu redFailure to furnish such proof of loss or insured; and in favor of any gov'ernmeROL under this policy unless the Company shala damage shall terminate any liability of the agency or instrumentaljwhich acquires a prejudiced by such failure and thea ot ,Compan under this SCHEDULE A Date of Policy: MARCH 30, 1984 AT 3:56 P. M. Amount of Insurance: $ 75,000.00 Policy No. 121-380 Order No. 66603-02 Charge: $ 425.00 I. Name of Insured: ALTON L. RUDEN AND LORNA RUDEN 2. The estate or interest referred to herein is at Date of Policy vested in: ALTON L. RUDEN AND LORNA RUDEN, HUSBAND AND WIFE, AS JOINT TENANTS. 3. The estate or interest in the land described herein and which is covered by this policy is a fee. SCHEDULE B This policy does not insure against loss or damage, nor against costs, attorneys' fees or expenses, any or all of which arise by reason of those matters shown in Parts I and II of this Schedule: PART I I. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by making inquiry of persons in possession thereof. 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. S. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water. 6. Any right, title, interest, estate or easement in land beyond the lines of the area specifically described or referred to in Schedule A, or in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing in this paragraph shall modify or limit the extent to which the ordinary right of an abutting owner for access to a physically open street or highway is insured by this policy. 7 Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law, ordinance or governmental regulation. 8. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public records. 9. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not shown by the public records and not otherwise excluded from coverage but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy or acquired the insured mortgage and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had been a purchaser or encumbrancer for value without knowledge. 061.0-075-0002 • • . __ CLTA Standard (Pot. 75) SCHEDULE B(Continued) PART U 1. GENERAL AND SPECIAL COUNTY AND CITY TAXES FOR THE FISCAL YEAR : 1984-1985 A LIEN NOT YET PAYABLE. SAID MATTER AFFECTS THIS AND OTHER PROPERTY. 2. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE PROVISIONS OF CHAPTER 498, STATUTES OF 1983 OF THE STATE OF CALIFORNIA. 3. A CERTIFICATE OF COMPLIANCE UNDER (SECTION 11538.3 OF THE BUSINESS & PROFESSIONS CODE) HAS BEEN RECORDED : JULY 5, 1983 AS FILE/PAGE NO. 83-227527 IN THE OFFICE OF THE COUNTY RECORDER IN COMPLIANCE WITH THE SUBDIVISION MAP ACT AND WITH PROVISIONS OF THE SAN DIEGO COUNTY CODE ADOPTED PURSUANT THERETO. 4. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE PURPOSES STATE) HEREIN, AND INCIDENTAL PURPOSES IN FAVOR OF : MARK D. PACKARD AND BONNIE J. PACKARD, HUSBAND AND WIFE, AND H. VON PACKARD AND SHEILA, D. PACKARD, HUSBAND AND WIFE. FOR : DRAINAGE PURPOSES RECORDED : MARCH 30, 1984 AS FILE/PAGE NO. 84-118629 AFFECTS : THAT PORTION THEREOF LYING WITHIN THE AREA DELINEATED AND DESIGNATED THEREON AS "5' PRIVATE DRAINAGE EASEMENT." 061-0-075-0003 O With Sit -. - - or - California I jr. Tile A,5ociafion Standard Co-age Pohc 913 - SCHEDULE C The land referred to in this policy is situated in the County of SAN DIEGO State of California, and is described as follows: PARCEL 4 OF PARCEL MAP NO. 13202 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY MARCH 8, 1984 AS FILE NO. 84-85544 OF OFFICIAL RECORDS. r\:: 01 01. ;.\ -p r.3 I r•L —. -t_ _*.•• S N 5c° i3' Z?E 7.12' C if° g' z9 W 7. 7' s) Fl j'jp - aeceplaLu Acts , co.. Mp 35 t, ?T!A D. C•tAti ci.eic cwwr OP SAM Of CO, CALI Ec; YIGLOS C? DIViSION t afrr STATE of OU PoiA. a Ig& O06I1'5 F6K TA'$ Cw pogTE* 9. CAEI'TJA9 - CL.eM Of rH[ SO*I ce SQFUVI30 S 40.00' I p9.73 p14 £.SL0 trw as cmPar "am . 0 —_I-- - —.----.--------.---------.---_________,_*j.__.. - TWIST DEED M0LD!R3C COMPANYAE 1us .7 (JrR DD OF. TRUST R ORDED_Ui' 12 IQ_' vQ7/If *g # AS DXf -2.4I OFOPFI CIAL FWCORPS..- - ;ftp AAW9WAW 03994*WW - __________________ OF1CU •Or ,4V M 1" Ar __ - uzV4Ur V AMP 40" • mw a c' •. 77 4 .0N msr'c jew. ggoR MEJC11U. I'. toy - - • A NOTARY PU8UC IN AND FR SAID COUNTY AND STATE'PERSO* Re., I . ALLY APEARED.4.-c D./q L(4OwN i'D k2 TO St fl4E PER— 9TATE, 0 SON WHOSE NAME SLI8SC.a07.0 TO THE TRUST QEED MOLDERS KNoW- J . CERTLFICATE AND ACKNOWXEDED TOME T1447 THEN EXE— sct / CL/TED THE 5AME.WITNESS MY 14ANOAP-LD OPFLC(AZ. SE". AD AC /UFFTIAL SEAL ;i" Nor ..LiFoRN:AOTARYPU8L1CIN•AND FOR SAID -'COUNTY ANaSTATE !'2 ••'' / \ /ci.i..cac / - I PerRM.ta I 2 i i OE OAj _AVEJIUE - _____ — •" — I "_ " / Cat'. CuI-á$a Par PM 12.192 off 9UR1143 '25'O?E q'7,01L '7... 1S t' PAREL 1. a ' BO34$F '.1 GROS.4JET rA I ( 8uir.M. P1.lz$4 Z111-04. Lr PARCEL 2. I3l4 S3.F sRoss U1 - .Sqt,z 1g%q SQ.T /tT 4l..I' PARCEL 3 3q89. FT. GRQSS tI,Z5 saPt NET rw % Lr '4- ' F4rL .s LQ , I J 2' U , 4rj. 7_i_es i23 Pc, Pb. 12.'S 14 5so 29 o1 e ;oo.s3 •. \t. PARCEl.. 4- 3',ZB 5O.t NET. 4-0,942.$ FT. GROSS 0 to p7 DEPICATION OPE RED I4EREc.t4 4 CORDING REQUESTED BY MCAN Ti11E CO. AND WHEN RECORDED MAIL THIS DEED AND. UNLESS WISE SHOWN BELOW. MAIL TAX STATEMENTS TO, NAME T Diane Lee Villescaz ADDRESS 1794 Basswood Drive CITY & Carlsbad, Calif. 92008 zip L °i'iLle Order No. 30 21985 Escrow No. 18100-0 Gd 5-357604 ECORDED IN CIAL RECORDS P DIEGO COUNTY. CA. i I MG 1982 DEC29 AM8:00 UF /0 J I VERA L LYLE RECORDER LOUNTT SPACE ABOVE THIS LINE FOR RECORDER'S USE 205 080 03 Corporation Grant Deed The undersigned declares that the documentary transfer tax is $................ . ' ................ and is D computed on the full value of the interest or property conveyed, or is computed on the full value less the value of liens or encumbrances remaining thereon at the time of sale. The land, tenements or realty is located in 0 unincorporated area 'city of. ......... ...... ...................................................................... and FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, FEDERAL HOME LOAN MORTGAGE CORPORATION a corporation organized under the laws of tile State of California hereby GRANTIS) to DIANE LEE VILLESCAZ, A WIDOW the following described real property in the City of Carlsbad, County of San Diego , state of California: (exact legal attached as Exhibit "A") Property address: 1794 Basswood Drive, Carlsbad, California SUBJECT TO: 1. Taxes for the fiscal year 1982-83, second half. 2. Covenants, conditions, restrictions, reservations, rights, rights of way, easements now of record, if any. CORPORATION l)ateci Nov- 23_l82 - ' 'j:enneth J. L2ulter, Regional _Director- / T •,JJöãWService St'ATF. OF 1.A1.I1`01INIA - (O(INfl OF LOS ANGELES Tura M. Miller, Assistant Secretar. (Iv December 3, 1982 helm,- OIl, II NoI:,rr t'tjt,Iic' in and for si,1,) I_SIllIly 11111) Slate, .1-r-.ntt11tty .-lppl'ull'l) Kenneth .3 çQul ter . -- - -.---.-.. ---------------- III' II II' 1. Regional 110 1110 I I Loan Servi cè I II FOR NOTARY SEAL OR STAMP Tura N. Miller . kIIIIIIII to III' lv to• As Si IS tant Sellry of Ite eorolalinl lt,,l Ic,,lI, III,' wilt)1 .IrIIIIll, llIll III lilt' III 111. III,' 1111.1111 ,0t1,t I'lI 111111 wiltl)Il tII-.I,,I,,Ir,It oIl ),,Ii,,)f of tile rlIrJoIr;IIioII t),rrl'it, lI,IIIlI',t. and uk to,,, Ii,)g,t ill DII' lt,,,t ­,h Ill 0OulIil.II l'l'rlIi,It it,, 111111111 OF of it, tIllill it of OFFICIAL SEAL LOS ANGELES COUNTY @MY hne 27,1986 \t Ut. T.\X s-rA-FE\t t-:NTS to t' II't'Y S tOWN (tN - '(It .t.(IWtNG tINE; IF NO PAIti'\ SO StIOWN, StAll. AS DIRECTEIJ AtIOVE Raw,' SIr,'et Add,­, City & Stole L-2 1G. SI Rev (10-75) (9 pt.) Ej EXHIBIT "A" LEGAL DESCRIPTION ORDER NO. 30-21985-03 PARCEL 1: ALL THAT portion of Lots 32 and 34 of PATTERSON'S ADDITION TO CARLSBAD, in the County of San Diego, State of California, according to the Hap thereof No. 565, filed in the Office of the County Recorder of said San Diego County, September 22, 1888, and that portion of Canon Street, vacated, described as a whole as follows: COMMENCING at the most Southerly corner of Lot 32; thence North 55 °27' East 350 feet along the Southeasterly line of Lot 32; thence North 34°33' West 169.03 feet along a line parallel with and 350 feet at right angles Northeasterly from the Southwesterly line of Lot 32 to the TRUE POINT OF BEGINNING; thence continuing along said parallel line, North 34°33' West 140.97 feet to a point in a line parallel with and 290.0 feet at right angles Southeasterly from the Northwesterly line of Lot 32; thence North 5527' East 309.0 feet along said line to a line parallel with and 659.0 feet at right angles Northeasterly from the Southwesterly line of Lot 32; thence South 3433' East, 140.97 feet; thence South 55°27' West 309 feet to the TRUE POINT OF BEGINNING. PARCEL 2: An easement for road purposes over the Northeasterly 8 feet of the Southwesterly 358 feet of Lot 33 and over the Northeasterly 8 feet of the Southwesterly 358 feet of that portion of Lot 32 lying Southeasterly of the Southeasterly line of Parcel 1 above described, all of PATTERSON'S ADDITION TO CARLSBAD, in the County of San Diego, State of California, according to the Map thereof No. 565, filed in the Office of the County Recorder of San Diego County, September 22, 1888, the Southwesterly line of said 8 foot strip of land being drawn parallel with and 350 feet Northeasterly, measured at right angles from the Southwesterly line of said Lots 32 and 33. PARCEL 3: An easement for electric light poles over the Northeasterly 1 foot of the Southwesterly 359 feet of Lot 33 and over the Northeasterly 1 foot of the Southwesterly 359 feet of that portion of Lot 32 lying Southeasterly of the Southeasterly line of Parcel 1 above described, all of PATTERSON'S ADDITION TO CARLSBAD, in the County of San Diego, State of California, according to the Map thereof No. 565, filed in the Office of the County Recorder of said San Diego County, September 22, 1888, the Southwesterly line of said 1 foot strip of land being drawn parallel with and 358 feet Northeasterly measured at right angles from the Southwesterly line of said Lots 32 and 33. TOGETHER WITH the right to allow cross arms of poles to extend six feet o,either side of the center line of the above described easement. • •" •, / . . AGREEMENT TO EXTEND TIME LIMITS TO ALLOW REVIEW OF THE LAND USE ELEMENT OF THE GENERAL PLAN In a desire to assist the City of Carlsbad to expeditiously review the Land Use Element of the General Plan and to ensure full and adequate review of the application for this development project the undersigned agrees that the time limits imposed by law to approve or disapprove this application shall be extended. If a negative declaration is adopted for this project the undersigned agrees that the time period for approval or disapproval is extended for 90 days. If the project requires an environmental impact report the undersigned agrees that the time limit imposed by Section 21151.5 of the Public Resources Code is extended for six months and that the project shall be approved or disapproved within 90 days after the certification of the environmental impact report. The undersigned understands that the City will process this application according to City Council Resolution No. 7872 and consents to processing the application according to that resolution. 1 f'12Y ) I Signature of Applicant or Date Authorized Agent Name (print) Title (Applicant, Authorized Agent, etc.) APPROVED: Michael J. Holzmiller Land Use Planning Manager RECORDING REQUESTED BY ) I WHEN RECORDED MAIL TO: ) ) CITY OF CARLSBAD ) 1200 Elm Avenue ) Carlsbad, California 92008 ) Space above this line for Recorder's use Documentaryt.sr fee Signature of declarant determining tax-firm name City of Carlsbad Parcel No. AGREEMENT BETWEEN DEVELOPER-OWNER AND THE CITY OF CARLSBAD FOR THE PAYMENT OF A PUBLIC FACILITIES FEE THIS AGREEMENT is entered into this day of /'7 4'7C,'A , 19S ' b y and between Difre. Lee V((escz.. Alto -L. alicl Lor1a.Rvdeh (name of developer-owner) a , hereinafter referred to as (Corporation, partnership, etc.) "Developer" whose address is r/J,CcIec' (street) z-r Mesa fJii'e,(C.ev,/cJ. and THE CITY OF (City, state, zip code) CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "City", whose address is 1200 Elm Avenue, Carlsbad, California, 92008. W I T N E S S E T H: WHEREAS, Developer is the owner of the real property described on Exhibit "A:, attached hereto and made a part of this agreement, hereinafter referred to as "Property"; and WHEREAS, The Property lies within the boundaries of City; and WHEREAS, Developer proposes a development project as follows: REV 4-2-82 on said Property, whideveloPfl1eflt carries the Roposed name of and is hereafter referred to as "Development"; and WHEREAS, Developer filed on the day of 19 with the City a request for Te.ita'V. SucV(S/o&l MD iJ Pk4k,e-cL i'f 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 is incorporated by this reference); and WHEREAS, Developer and City recognize the correctness of Council. Policy No. 17, dated April 2, 1982, in 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 WHEREAS, Developer has 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 is aware that the City cannot and will not be able to make any such finding without financial assistance to pay for such services and facilities; and therefore, Developer proposes to help satisfy the General Plan as implemented by Council Policy No. 17 by payment of a public facilities fee. -2- REV 4-2-82 NOW, THEREFOREn consideration of the reals and the covenants contained herein, the parties agree as follows: 1. The Developer 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 paid 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 shall pay a fee for conversion o f 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 conversion shall 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 mobilehome sites or projects, shall not refer to grading permits or other permits for the construction of underground or street improvements unless no other permit is necessary prior to the use or occupancy for which the development is intended. Developer 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. -3- REV 4-2-82 . . 2. The Developer 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 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 donation 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. 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 facilities 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 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. -4- REV 4-2-82 6. All obligati•s hereunder shall terminain 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. 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 and the City, and references to Developer or City herein shall be deemed to be reference 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. 9. This agreement shall be recorded but shall not create a lien or security interest in the Property. When the obligations of this agreement have been satisfied, City shall record a release. MIC REV 4-2-82 It IN WITNESS WHEREOF, this agreement is executed in San Diego County, California as of the date first written above. DEVELOPER-OWNER: ( (name5 BY CITY OF CARLSBAD, a municipal corporation of the State of California BY City Manager 11 (Ti t le) BY (Title) 1> C Ia E 0 C-) a I- C Cs 0 5, E 0, LL co V > V C ('4 1 j ( (0 0 I0 , 0) ATTEST: ALETHA L. RAUTENKRANZ, City Clerk APPROVED AS TO FORM: I -) I, STATE OF CALI FOR j. (', - COUNTY OF ____-z,-/t ' On_...i..)_- - -_,before me, the undersigned, a Notary Public in and for said State, personally appeared '2__c-2_________ personally known to me (or proved to me on the basis of satis- factory evidence) to be the person(s) whose name(s) is/are sub- . . scribed to the within instrument and acknowledged to me that -. he/she/they executed the same. - WITNESS my hand and official seal. Signatur',/., (This area for official notarial seal) ust be EXHIBIT "A" LE(AL DESCRIPTION Rg rc e 4of Pzirce/ /'/Ia/D I32c' *a.id prTiois c'f Lots 32. J 3 Pk-sofri.s 14c1d1?ovi, 5'uh,cIivic1'1 M&1 11'e City sa1d wips beoi ç(f the Coiity Teorer of'5 Di,o Coultily. BYLAWS - OF CANYON PLACE HOMEOWNERS ASSOCIATION A California Nonprofit Mutual Benefit Corporation 1. NAME AND LOCATION The name of the association is CANYON PLACE HOMEOWNERS ASSOCIATION, a California corporation, (hereinafter referred to as the "Association"). The Association is organized under the California Nonprofit Mutual Benefit Law. The principal office of the Association shall be located in the County of San Diego, State of California. Meetings of Members shall be held at such places as are set forth in the Declaration (defined below). 2. DEFINITIONS 2.1 Declaration. The "Declaration" shall mean, collectively, the Declaration of Covenants, Conditions and Restrictions of Canyon Place Homeowners Association and any amendments or supplements recorded or to be recorded pursuant thereto, for the real property legally described in Exhibit "A" attached hereto and incorporated herein. 2.2 Other Definitions. Each and every definition set forth in Article II of the Declaration shall have the same meaning herein as therein, and each and every such definition is incorporated by reference herein and made a part hereof as if once again fully written and set forth at length thereat. 3. MEMBERSHIP; VOTING RIGHTS The qualification for membership, the classes of membership and the voting rights of Members shall be as set forth in Article VI of the Declaration, all of which are hereby incorporated by reference herein as if set forth in full. 4. MEETINGS OF MEMBERS 4.1 Annual Meetings. The organizational meeting and annual meetings of the Members shall be held within the Neighbor- hood or at a meeting place as close thereto as possible. Unless unusual conditions exist, meetings shall not be held outside of the county in which the Neighborhood is situated. The first annual meeting of the Association shall be held as provided in the Declaration. The second annual meeting of the Association, and every annual meeting thereafter, shall be held during the same month of the year that the first annual meeting was held, with the specific day and time to be determined by the Board. 3/24/87 4.2 Special Meetings. Special meetings of the Members may be called at any time by the president or by a majority of-a quorum of the Board, or upon written request of the Members representing at least five percent (5%) of the total votes. 4.3 Notice of Meetings. Notice of all Members meet- ings, annual or special, shall be given by mail or telegram and shall be given not less than ten (10) days nor more than thirty (30) days prior to the time of said meeting and shall set forth the place, date and hour of the meeting, and the nature of the business to be undertaken. Notices shall be given by, or at the direction of, the secretary or person authorized to call the meeting, and shall be transmitted to each Member entitled to vote thereat and to each Mortgagee addressed to such Member's or Mortgagee's address list appearing on the books of the Associa- tion, or supplied by such Member or mortgagee to the Association for the purpose of notice. Mailed notices shall be deemed received forty-eight (48) hours after same are mailed by certi- fied mail, return receipt requested; notice by telegram shall be deemed received twenty-four (24) hours after same are sent. Notices to Members may also be personally delivered, and shall be deemed received upon delivery to any occupant of the Member's residence. 4.4 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. If any meeting cannot be held because a quorum is not present, Members representing a majority of the votes present, either in person or by proxy, may adjourn the meeting to a time not less than five (5) days nor more than thirty (30) days from the time the original meeting was called, at which adjourned meeting the quorum requirement shall be at least twenty-five percent (25%) of said total votes. 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 the Members in the manner prescribed for regular meetings. Any meeting of Members where a quorum is present may be adjourned for any reason to a time not less than forty-eight (48) hours nor more than thirty (30) days from the time of such meeting by Members representing a majority of the votes present, either in per'son or by proxy. 4.5 Proxies. At all meetings of Members each Member may be present in person or by proxy. All proxies shall be revocable and shall automatically cease when the ownership inter- est or interests of such Member entitling him to membership in the Association ceases. 2 3/24/87 4.6 Order of Business. The order of business of all meetings of the Members shall be as follows: 4.6.1 roll call; 4.6.2 proof of notice of meeting or waiver of notice; 4.6.3 reading of minutes of precedirg meeting; 4.6.4 reports of Board and officers; 4.6.5 election of directors, if any are to be elected; 4.6.6 unfinished business; and 4.6.7 new business. 4.7 Preliminary Procedure. All questions of par- liamentary procedure shall be decided in accordance with Roberts Rules of Order. 4.8 Majority of Owners. Except as otherwise provided herein or in the Declaration, the majority of the total voting power present, in person or by proxy, shall prevail. 4.9 Action Without Meeting. Any action which may be taken at a meeting of the Members, except the election of govern- ing Board Members where cumulative voting is a requirement, may be taken without a meeting if authorized by a writing signed by all of the Members who would be entitled to vote at a meeting for such purpose and filed with the secretary. 5. SELECTION AND TERN OF OFFICE OF BOARD 5.1 Number. The Board shall consist of three (3) directors who need not be Members. 5.2 Term of Office. The term of office of the directors shall be two (2) years and elections shall be held on a staggered basis as provided for below. At the first annual meeting the Members shall elect each of the three (3) directors. The two (2) directors who receive the highest number of votes shall serve for a term of two (2) years and the remaining one (1) director shall initially serve for a term of one year and thereafter shall serve for a term of two (2) years. Successor directors shall be elected at the next annual meeting corresponding with the expiration of the terms. 5.3 Election; Removal; Vacancies. Election and removal of directors shall be as provided in the Declaration. To the extent not inconsistent with the Declaration, in the event of the death or resignation o-f a director, his successor shall be 3 3/24/87 selected by the remaining Members of the Board and shall serve for the unexpired term of his predecessor. In the event of the removal of-s director his successor shall be elected at a special election in-accordance with the Declaration. 5.4 Compensation. No director shall receive any compensation for any service he may render to the Association as a director; provided, however, any director may be reimbursed for actual out-of-pocket expenses incurred by him in thd performance of his duties. 6. NOMINATION AND ELECTION OF DIRECTORS 6.1 Nomination. Nomination for election to the Board shall be made by a nominating committee consisting of three (3) persons. Nominations may also be made from the floor at each annual meeting. 6.2 Election. Election to the Board shall be by secret ballot. At such election, the Members, or their proxies, may cast, in respect to each vacancy, as many votes as they are entitled to cast under the provisions of the Declaration (and subject to cumulative voting as therein described). The candi- dates receiving the highest number of votes shall be deemed elected. 7. POWERS AND DUTIES OF ASSOCIATION. 7.1 Powers. The Association shall have all the powers of a nonprofit corporation organized under the 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 authorized, required, or permitted to be done by the Association under these Bylaws, the Declaration and the Articles, 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 powers and duties set forth below. 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 the 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 provi- sion of the Declaration, Bylaws or the Association Rules, and to enforce by mandatory injunction, or otherwise, all of these provisions. In addition, the Association can suspend the voting rights, or can assess monetary penalties against any Owner or other person entitled to exercise such rights or privileges for 4 3/24/87 any violation of the Declaration, Bylaws or Association Rules. However, before a decision to impose such a suspension of use privileges —or monetary penalties is reached by the Board, at least fifteen (15) days written notice of suspension of use privileges or imposition of monetary penalties and the reasons therefor must be given to the Owner of such suspension or imposi- tion of a penalty. Additionally, before the Board decides to impose a suspension of use privileges or impose a monetary penalty, the aggrieved Owner shall be provided with' an opportu- nity to be heard by the Board, orally or in writing, not less than five (5) days before the date of the suspension of use privileges or imposition of monetary penalty is to take effect. For the purposes of this Section, notice shall be given by any method reasonably calculated to provide actual notice. Any notice given by mail must be given by first-class or registered mail addressed to the Owner at the last address of the Owner shown on the Association's records. In the event legal counsel is retained or legal action is instituted by the Board pursuant to this paragraph, any settlement prior to judgment or any judgment rendered in any such action shall include costs of collection, court costs and reasonable attorneys' fees. C. 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") d. Association Rules. The Board shall have the power to adopt, amend and repeal Association Rules as it deems reasonable. The Association Rules shall govern the use of the Common Area and the Common Maintenance Area by all Owners, or their Invitees or by any contract purchaser, or tenant, or their respective Invitees. A copy of the Association Rules as adopted, amended or repealed, shall be mailed or otherwise delivered to each Owner. In case of any conflict between any of the Association Rules and any other provisions of this Declaration or Bylaws, the conflicting Association Rule shall be deemed to be superseded by the provisions of this Declaration, the Articles or the Bylaws. e. Right of Entry and Enforcement. Upon forty-eight (48) hours written notice (except in the case of emergencies in which case no prior notice need be given and for ongoing maintenance of the Common Maintenance Areas) and during reasonable hours, the Board or any authorized representative thereof shall have the right to enter upon any Lot and the improvements thereon for the purpose of construction, maintenance or emergency repair for the benefit of the Common Area, Common Maintenance Area or the Owners in common or for the purpose of maintaining and repairing the Improvements located on said Lot as provided in this Declaration. In the event that the Owner of a Lot fails to maintain and repair any portion of the Lot as required by this Declaration, the Board shall have the right, 5 3/24/87 after notice and opportunity for a hearing before the Board by the Owner regarding any allegation of failure to maintain or repair, t- enter upon the subject Lot to undertake such maintenance-or repair. Such persons shall not be deemed guilty of trespass by reason of any entry on any Lot pursuant to the provisions hereof. The cost of such maintenance or repair shall be assessed against said Owner as an Enforcement Assessment in accordance with the provisions of the Declaration. The Association shall also have the power and authority 'from time of time in its own name, on its own behalf or on the behalf of any Owner or Owners who consent thereto, to commence and maintain actions and suits to restrain and enjoin any breach or threatened breach of this Declaration and to enforce, by mandatory injunc- tion or otherwise, all of the provisions of said Declaration. The costs of any such action or suit, including reasonable attorneys' fees, shall be paid to the prevailing party. f. Easements and Rights of Way. The Board shall have the power to grant and convey to any third party easements and licenses for use and rights of way in, on, over or under any Common Area conveyed or otherwise transferred to said Association or under its jurisdiction in accordance with the provisions of this Declaration.in this Declaration. g. Capital Improvements. The Board may, on its own motion or acting on a petition signed by a majority of the Owners, approve the construction, installation or acquisition of a particular capital improvement for the benefit of the Association on the Common Area, subject to the limitations set for in Section - below. h. Other Property. The Board shall have the power to acquire and hold, as trustee for the benefit of its Members, tangible and intangible personal property and to dispose of the same by sale or otherwise. i. Contract for Goods and Services. The Board shall have the power to contract for goods and services for the benefit of the Common Area and/or the Neighborhood necessary for the Association to perform its duties and obligations under the Declaration and the Bylaws. 7.2 Duties of the Association. In addition to the duties provided in the Declaration or the Bylaws, and without limiting their generality, the Association, acting by and through the Board, has the obligation to conduct all business affairs of common interest to all Owners and to perform each of the duties set forth below. a. Operation and Maintenance of Common Area and Common Maintenance Area. To operate, maintain, and otherwise manage or provide for the operation, maintenance and management of the Common Area and the Common Maintenance Area, and all its facilities, improvements, and landscaping including any private 6 3/24/87 driveways and private streets, and any other property acquired by the Association, including personal property, in a first-class condition and in a good state of repair. b. Taxes and Assessments. To pay all real and personal property taxes and assessments and all other taxes levied against the Common Area and personal property owned by the Association or against the Association. C. Water and Other Utilities. To acquire, provide and pay for water, electrical, gas and other necessary utility services for the Common Area or Common Maintenance Area. d. Enforcement of Restrictions and Rules. To perform such other acts, whether or not expressly authorized by this Declaration, that may be reasonably necessary to enforce any of the provisions of this Declaration, the Articles and Bylaws, and the Association's Rules. e. Utilities Suppliers. To permit utility suppliers to use portions of the Common Area reasonably necessary to the ongoing development and operation of the Neighborhood. if. Insurance. To obtain, from reputable insurance companies and maintain the insurance described in the Declaration. g. Architectural Committee. The Board shall perform the architectural duties provided under the Declaration. h. Enforcement of Restrictions and Rules. The Association shall have the duty to take such other action, whether or not expressly authorized by the Declaration, including the hiring of legal counsel and undertaking legal action, as may be reasonably necessary to enforce the covenants, conditions and restrictions contained herein, in the Declaration, these Bylaws and the Association Rules. i. Compliance With Laws. To comply with all laws and regulations governing the operation of the Association. 7.3 Budgets and Financial Statements of the Association. The following financial information shall be regularly prepared and distributed by the Board to all Members of the Association: 7.3.1 Budgets. A pro forma operating statement ("budget") for each fiscal year consisting of at least the following information shall be distributed not more than forty- five (45) days and not less than sixty (60) days prior to the beginning of the fiscal year: 7 3/24/87 (1) Estimated revenue and expenses on an accrual basis; - (2) The amount of the total cash reserves of the Association currently available for replacement or major repair of common facilities and for contingencies; (3) 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 Common Maintenance Areas for which the Association is responsible; and (4) A general statement setting forth the procedures used by the Board in the calculation and establishment of reserves to defray the costs of repair, replacement or addi- tions to major components of the Common Areas and Common Maintenance Areas for which the Association is responsible. 7.3.2 Review of Financial Statement. For any fiscal year in which the gross income to the Association exceeds Seventy-Five Thousand Dollars ($75,000.00), a copy of the review of the financial statement shall be prepared in accordance with generally accepted accounting principles by a licensee of the California State Board of Accountancy. The review of the financial statement shall be distributed within one hundred and twenty (120) days after the close of each fiscal year. 7.3.3 Community Association Policies. A statement setting forth the Community Association's policies and practices in enforcing the lien rights and other legal remedies for the default in the payment of Assessments against Members shall be distributed to each Member within sixty (60) days prior to the beginning of each fiscal year. 8. MEETINGS AND DIRECTORS 8.1 Regular Meetings. Regular meetings of the Board shall be held monthly without notice at such place and hour as may be fixed from time to time by resolution of the Board. The meeting place shall ordinarily be within the Neighborhood unless, in the judgment of the Board, a larger meeting room is required than exists within the Neighborhood, in which case the meeting room selected shall be as close as possible to the Neighbor- hood. Should any such 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 any such meeting 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. Notice of the time and place of any such meeting shall be posted at a prominent place or places within the Common Area. 8 3/24/87 8.2 Special Meetings. Special meetings of the Board shall be held when called by written notice signed by the presi- dent of the Association, or by any two (2) directors other than the president, after not less than seventy-two (72) hours prior notice to each director. The notice shall specify the time and place of the meeting and the nature of any special business to be considered; 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. The noeice shall be posted in the manner prescribed for notice of regular meetings not less than seventy-two (72) hours prior to the scheduled time of the meeting. 8.3 Quorum. A majority of the number of directors shall constitute a quorum for the transaction of business at a meeting of the Board. 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. 8.4 Conduct of Meetings. Regular and special meet- ings of the Board shall be open to all Members of the Associa- tion; provided, however, that Association Members who are not on the Board may not participate in any deliberation or discussion unless expressly so authorized by the vote of a majority of a quorum of the Board. The Board may, with the approval of a majority of a quorum of the Members of the Board, adjourn a meet- ing 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 or otherwise sensitive nature. The nature of any and all business to be con- sidered in executive session shall first be announced in open session. 8.5 Action Taken Without a Meeting. The directors shall have the right to take any action in the absence of a meet- ing which they could take at a meeting by obtaining the written approval of all the directors. Any action so approved shall have the same effect as though taken at a meeting of the Board. An explanation of any action taken shall be posted at a prominent place within the Common Area within three (3) days after the written consents of all governing body Members have been obtained. 8.6 Participation by Members. The Secretary shall post a notice of all regular and special Board meetings in a conspicuous place within the Common Area not less than four (4) days prior to the scheduled time of the meeting. All meetings of the Board shall be open to all Members but Members who are not directors shall have no right to participate in any deliberations or discussions of the Board unless expressly authorized by a vote of the Board. If the nature of the business is first announced in open session, the Board may vote to adjourn 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. 9 3/24/87 9. POWER AND DUTIES OF THE BOARD 9-.1 Powers. The Board shall have all powers con- ferred upon the Association as set forth herein and in the Declaration, excepting only those powers expressly reserved to the Members. 9.2 Duties. It shall be the duty of the Board: 9.2.1 to cause to be kept a complete record of all of its acts and doings 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 Members representing one-fourth (1/4) of the class A Members; 9.2.2 to supervise all officers, agents and employees of the Association, and to see that their duties are properly performed; and 9.2.3 to delegate its powers as provided in the Declaration. 10. OFFICERS AND THEIR DUTIES 10.1 Enumeration of Offices. 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. 10.2 Election of Officers. The election of officers shall take place at the organizational meeting of the Board and thereafter at each meeting of the Board following each annual meeting of the Members. 10.3 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. 10.4 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 author- ity, and perform such duties as the Board may, from time to time, determine. 10.5 Resignation and Removal. Any officer may be removed from office with or without cause by the Board. Any officer may resign at any time by 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. 10 3/24/87 10.6 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-v. 10.7 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 pursuarit to Section 10.4 hereof. 10.8 Duties. The duties of the officers shall be as follows: 10.8.1 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 other written instruments, and shall co-sign all checks and promissory notes. 10.8.2 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 exercise and discharge such other duties as may be required of him by the Board. 10.8.3 Secretary. The secretary shall record the votes and keep the minutes of all meetings and proceedings of the Board and of the Members, shall serve notices of meetings of the Board and of the Members, shall keep appropriate current records showing the Membe:s of the Association together with their addresses, and shall perform such other duties as required by the Board. 10.8.4 Treasurer. The treasurer shall receive and deposit in appropriate bank accounts all monies of the Asso- ciation and shall disburse such funds as directed by resolution of the Board, shall co-sign all checks and promissory notes of the Association, shall keep proper books of account, shall cause an annual operating statement reflecting income and expenditures of the Association for its fiscal year to be prepared and shall cause copies of said statement to be distributed to each Member within sixty (60) days after the end of such fiscal year, and shall cause an annual budget to be prepared and presented to each Member. 10.9 Compensation. No officer shall receive any com- pensation for any service he may render to the Association as an officer; provided, however, any officer may be reimbursed for actual out-of-pocket expenses incurred by him in the performance of his duties. 11 3/24/87 11. COMMITTEES Subject to any contrary provisions of the Declaration and these —Bylaws, if any, the Board may appoint a nominating committee as provided in these Bylaws. In addition, the Board may appoint such other committees as it deems appropriate in order to carry out its purpose. 12. ASSESSMENTS As more fully provided in the Declaration, each Member is obliged to pay to the Association regular and special assess- ments to be collected as therein set forth, all of which are hereby incorporated by reference herein as if set forth in full. 13. INDEMNIFICATION 13.1 Generally. A director, officer, committee member, employee or other agent of the Association who is a party to or is threatened to be made a party to any proceeding (including a proceeding by or on behalf of the Association) because he is or has a director, officer, committee member, employee or agent of the Association shall be indemnified by the Association against all expenses and liabilities actually and reasonably paid or incurred in connection with the proceeding to the maximum extent permitted by the California Nonprofit Mutual Benefit Corporation Law. Terms used in this Section shall have the same meaning as in Section 7237 of the California Corporations Code or any successor statute or law. 13.2 Approval. Upon written request to the Board by any person seeking indemnification, the Board shall promptly determine whether the applicable standard of conduct set forth in the California Nonprofit Mutual Benefit Corporation Law has been met. If so, the Board shall authorize indemnification. If the Board cannot authorize indemnification because the number of directors who are parties to the proceeding with respect to which indemnification is sought prevent a quorum of directors who are not parties to the proceeding, the Board shall promptly call a special meeting of Members. At the meeting, the Members shall determine whether the applicable standard of conduct set forth in the California Nonprofit Benefit Corporation Law has been met. If so, the Members shall authorize indemnification. Members or other persons seeking to be indemnified shall not be entitled to vote on the question of indemnification. 13.3 Advancing Expenses. Except as otherwise determined by the Board in a specific instance, expenses incurred by a director, officer, committee member, employee or agent seeking indemnification under Section 12.1 shall be advanced by the Association prior to the final disposition of the proceeding upon receipt of an undertaking by or on behalf of the Director, officer, committee member, employee or agent to repay the amount unless it is ultimately determined that the person is not entitled to be indemnified by the Association. 12 3/24/87 14. AMENDMENTS 1-4.1 These Bylaws may be amended only with: 14.1.1 A majority of the voting power of the Association; and 14.1.2 A majority of the votes of Members other than the Declarant. 14.2 Notwithstanding Section 1 of this Section 12, the percentage of the voting power of the Association or of Members other than the Declarants 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 or provision. 14.3 Notwithstanding any other provision in Section 12, the adoption of any amendment to these Bylaws shall comply with the provisions of California Business and Professions Code Section 11018.7 to the extent that said section is applicable. 15. GENERAL PROVISIONS 15.1 Conflicting Provisions. In the case of any con- flict between any provisions of the Declaration and these Bylaws, the conflicting provisions of the Declaration shall control. 15.2 Fiscal Year. The fiscal year of the Association shall be a calendar year unless and until a different fiscal year is adopted by the Members at a duly constituted meeting thereof. 15.3 Proof of Membership. No person shall exercise the rights of membership in the Association until satisfactory proof thereof has been furnished to the secretary. Such proof may consist of either a copy of a duly executed and acknowledged grant deed or title insurance policy showing said person to be the owner of an interest in a condominium entitling him to mem- bership. Such deed or policy shall be deemed conclusive in the absence of a conflicting claim based on a later deed or policy. 15.4 Absentee Ballots. The Board may make such pro- visions as it may consider necessary or desirable for absentee ballots. 15.5 Consent to Waiver of Notice. The transactions at any meeting of the Board, however noticed, shall be as valid as though had at a meeting duly held after regular notice if a quorum be present and either before or after the meeting each director not present thereat signs a written waiver of notice or a consent to the holding of such meeting or an approval of the true and correct minutes thereof. All such waivers, consents or approvals shall be filed with the records of the Board and made a part of its minutes. 13 3/24/87 15.6 Reserves. Any amounts collected by or paid to the Association in excess of operational needs shall be set aside as reserves-for future financial needs in the manner set forth in the Declar-tion and shall be deposited into insured interest- bearing accounts. These sums may include amounts collected by Declarants from owners through purchase escrows representing capital contribution by such owners to the Association. CERTIFICATE OF SECRETARY KNOW ALL MEN BY THESE PRESENTS: The undersigned, Secretary of Canyon Place Homeowners Association, a California nonprofit mutual benefit corporation, does hereby certify that the above and foregoing Bylaws were duly adopted by the Board of Directors of said association on , 1987 and that they now constitute said Bylaws. Secretary R1ONTS1O2 14 3/24/87 ARTICLES OF INCORPORATION - OF CANYON PLACE HOMEOWNERS ASSOCIATION I The name of this corporation is CANYON PLACE HOMEOWNERS. ASSOCIATION (hereinafter referred to as the "Association"). II A. This Association is a Nonprofit Mutual Benefit Corpora- tion 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. B. This Corporation does not contemplate pecuniary gain or profit to the members thereof, and the specific primary purposes for which it is formed are to provide for management, administra- tion, maintenance, preservation and architectural control of the residents' units and common area within that certain tract of property situated in the County of San Diego, California, commonly known as Canyon Place Homeowners Association. Subject to the provisions of the recorded or to be recorded Declaration of Covenants, Conditions and Restrictions of Canyon Place Homeowners Association applicable to the development (hereinafter referred to as the "Declaration"), the general purposes and powers of the Association are: (1) To promote the health, safety and welfare of the residents within the development; (2) To exercise all of the powers and privileges and to perform all of the duties and obligations of the Association arising from the Declaration; (3) To fix, levy, collect and enforce payment by any lawful means, all charges or assessments pursuant to the terms of the Declaration and to pay all expenses in connection therewith and all office and other expenses incident to the conduct of the business of the Association, including all licenses, taxes and governmental charges levied or imposed against the property of the Association; (4) To acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain, convey, sell, lease, transfer, dedicate for public use or otherwise dispose of real or personal property in connection with the affairs of the Association; (5) To borrow money, and to mortgage, pledge, deed in trust, or hypothecate any or all of its real or personal property as security, for money borrowed or debts incurred; (6) To have and to exercise any and all powers, rights and privileges which a corporation organized under the Nonprofit Mutual Benefit Corporation Law of the State of California by law may now or hereafter have or exercise; and (7) To act in the capacity of principal, agent, joint venturer, or partner, or otherwise. The foregoing statement of purposes shall be construed as a statement both of purposes and of powers, and purposes and powers in each clause shall in no way be limited or restricted by refer- ence to or inference from the terms or provisions of any other clause, but shall be broadly construed as independent purposes and powers. Notwithstanding any of the above statements of pur- poses and powers, the Association shall not, except to an insub- stantial degree, engage in any activities or exercise any powers that are not in furtherance of the primary purposes of the Association. III The County in this State where the principal office for the transaction of the business of the Association is located is the County of San Diego. Iv This Association is intended to qualify as a Homeowners' Association under the applicable provisions of the Internal Revenue Code, and of the Revenue and Taxation Code of California. No part of the net earnings of this organization shall inure to the benefit of any private individual, except as expressly provided in those Sections with respect to the acquisi- tion, construction, or provision for management, maintenance, and care of the Association property, and other than by a rebate of excess membership dues, fees, or assessments. In the event of the dissolution, liquidation, or winding-up of the Association, upon or after termination of the project, in accordance with provisions of the Declaration, its assets remaining after payment, or provision for payment, of all debts and liabilities of the Association, shall be divided among and distributed to the members in accordance with their respective rights therein. 2 kh These Articles may be amended only by the affirmative vote (in person or by proxy) or written consent of a majority of the Board of Directors of this Corporation and the affirmative vote, in person or by proxy, or written consent of members representing a majority of the voting power of the Association which shall include a majority of the votes of members other than Declarant, or where the two-class voting structure is still in effect, as provided in the Declaration, a majority of each class of membership. VI The authorized number and qualifications of members of the Association, the different classes of members, if any, the prop- erty, voting, and other rights and privileges of members, and their liability for assessments and the method of collection thereof, shall be as set forth in the bylaws. VII The name of the Association's initial agent for service of process is: Diane Villescaz. The address of its initial agent is: 1794 Basswood Avenue, Carlsbad, California 92008. IN WITNESS WHEREOF, for the purposes of forming this corpo- ration under the laws of the State of California, the undersigned has executed these Articles of Incorporation this day of 198_. I declare that I am the person who executed the above Articles of Incorporation, and such instrument is my act and deed. R1ONTS12O 3 i(9/B-7 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF CANYON PLACE HOMEOWNERS ASSOCIATION C-r ?s--/3/ For ,>.93 TABLE OF CONTENTS Page ARTICLE I - RECITALS ............................................1 DECLARATION........................................1 ARTICLE II - DEFINITIONS .......................................2 2.1 ARTICLES .......................2 2.2 ASSOCIATION .......2 2.3 ASSOCIATION RULES ...................................2 2.4 BOARD ...............................................2 2.5 BYLAWS ..............................................2 2.6 COMMON AREA.................... ....................2 2.7 COMMON MAINTENANCE AREA.............................2 2.8 COUNTY..... ....... .....2 2.9 DECLARANT ...........................................2 2.10 DECLARATION ............ . . ..................... I ...3 2.11 FIRST MORTGAGE ......................................3 FIRST MORTGAGEE ..................................... 3 2.12 2.13 GARAGE ..............................................3 2.14 IMPROVEMENTS .............. . . . . . . . . . . .............3 2.15 INSTITUTIONAL MORTGAGEE .............................3 2.16 INVITEE ....................................3 2.17 LOT ................................................3 2.18 MEMBER ..............................................4 2.19 MORTGAGE ..................................4 2.20 MORTGAGEE ...........................................4 2.21 NEIGHBORHOOD ......................... * ..............4 2.22 OWNER...............................................4 2.23 PRI1ATE STREETS .....................................4 2.24 PROPERTY ............................................4 2.25 RESIDENCE .......................4 ARTICLEIII - OWNERSHIPANDEASEMENTS ......... .................4 3.1 NON-SE1ER_A.BILITY ................. 4 3.1.1 No Separate Conveyance ......................4 3.1.2 No Judicial Partition .......................4 3.2 OWNERSHIP OF LOTS .......5 3.3 OWNERSHIP OF COMMON AREA ............................5 3.4 EASEMENTS ...........................................5 3.4.1 Easements For Common Area ...................5 3.4.2 Declaration Subject to Easements ............6 3.4.3 Encroachments ...............................6 3.4.4 Perform Association Functions ...............6 3.4.5 Declarant's Non-Exclusive Easements .........6 ( i) ARTICLE IV - PROPERTY RIGHTS: RESIDENTIAL AREA ................7 4.1 -RESIDENTIAL AREA: PERMITTED USES AND LIMITATIONS ... 7 -4.1.1 Residential Purposes Only ...................7 4.1.2 Commercial Use ..............................7 4.1.3 Rental of Lots ..............................7 4.1.4 Animals ..................................... 7 4.1.5 Structures for Animals ...................... 8 4.1.6 Antennas ...................................... 8 4.1.7 Utility Service ............................. 8 4.1.8 Improvements, Alterations and Repairs ....... 8 4.1.9 Temporary Occupancy ......................... 8 4.1.10 Trailers, Boats and Motor Vehicles .......... 8 4.1.11 Garages ..................................... 9 4.1.12 Parking ..................................... 9 4.1.13 Nuisances ................................... 9 4.1.14 Trash Containers and Collection ............. 9 4.1.15 Clothes Drying Facilities ................... 9 4.1.16 Exterior Lighting ........................... 9 4.1.17 Fences ....... • ............................10 4 . 1 . 1 8 Private Street ............................. 1 0 4.1.19 Balconies .................................. 10 4.1.20 Mineral Exploration ........................ 10 4.1.21 Machinery and Equipment ............. 10 4 . 1 . 2 2 Landscaping ................................ 1 0 4.1.23 Painting Required .......... . . . .11 4.1.24 Diligence in Construction Required ......... 11 4.1.25 Drainage ............................... . . . .11 4.1.26 Slope Control, Use and Maintenance ......... 11 4.1.27 Restrictions on Further Subdivision ........ 11 4.1.28 Signs ...................................... 11 4.1.29 Increase Rate of Insurance ................. 12 4.1.30 Indemnification ............................ 12 4.2 PARTY WALLS AND FENCES ............................. 12 4.2.1 Owners Own to Center Line ................. 12 4.2.2 Reciprocal Non-Exclusive Easements ........ 12 4.2.3 Dispute Resolution ........................ 13 ARTICLE V - IMPROVEMENTS ........... ............ ............. . .13 5.1 MAINTENANCE OBLIGATION OF THE ASSOCIATION ...... 5.2 ALTERATIONS TO COMMON AREA ......................... 13 5.2.1 Approval ................................... 13 5.2.2 Funding .................................... 13 5.3 MAINTENANCE OF RESIDENCES BY OWNERS ................13 5.4 LANDSCAPING ........................................ 14 5.4.1 Common Area ................................ 14 5.4.2 Lots ....................................... 14 5.5 DAMAGE AND DESTRUCTION ............................. 14 5.5.1 Contracting to Restore ..................... 14 5.5.2 Priority in Use of Funds ................... 14 5. 5.3 Insufficient Funds ......................... 15 5.6 DELEGATION OF RIGHT OF USE ......................... 15 (ii) ARTICLE VI - THE ASSOCIATION ..................................15 6.1 -THE ORGANIZATION ...................................1 5 6.2 -ASSOCIATION ACTION; BOARD OF DIRECTORS AND OFFICERS; MEMBERS' APPROVAL ....................16 6.3 PERSONAL LIABILITY .................................16 6.4 ORGANIZATIONAL MEETING OF MEMBERS ..................16 6.5 REGULAR MEETINGS OF MEMBERS AND NOTICE .............16 6.6 INSPECTION OF ASSOCIATION BOOKS AND RECORDS ........17 6.6.1 Records Available ..........................17 6.6.2 Rules Regarding Inspection .................17 6.6.3 Rights of Directors ........................17 ARTICLE VII - MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION .....17 7.1 MEMBER: SHIP.........................................17 7.1.1 Qualifications .............................17 7.1.2 Members' Rights and Duties ................18 7.1.3 Transfer of Membership .....................18 7.2 NUMBER OF VOTES ................ . . . . . . ........ . * . . .18 7.2.1 ClassA Members ............................18 7.2.2 ClassB Members . ................. . ....... 18 7.2.3 Joint Owner Votes ............18 7.2.4 Cumulative Voting .......................... 18 7.2.5 Accrual of Voting Rights ...................18 ARTICLEVIII - ASSESSMENTSANDDtJES ...........................19 8.1 CREATION OF LIEN AND PERSONAL OBLIGATION FOR ASSESSMENT ..................................... 19 8.2 FUNDS . . . . . •... ........ ......................... 19 8.3 PURPOSE OF ASSESSMENTS ............................. 19 8.4 PERSONAL OBLIGATIONS.. ............. 19 8.5 REGULAR ASSESSMENTS ................................ 19 8.5.1 Payment of Regular Assessments .............19 8.5.2 Budgeting .................................. 20 8.5.3 Restrictions for Tax Exemption ............. 20 8.5.4 Non-Waiver of Assessments .................. 20 8.6 SPECIAL ASSESSMENTS ................................ 20 8.6.1 Establishing Special Assessments ........... 20 8.6.2 Limits on Special Assessments .............. 21 8.7 ENFORCEMENT ASSESSMENTS ............................ 21 8.8 UNIFORM RATE OF ASSESSMENT ......................... 22 8.9 DATE OF COMMENCEMENT OF REGULAR ASSESSMENTS; DUEDATES .......................................... 22 8.10 NOTICE AND ASSESSMENT INSTALLMENT DUE DATES ........ 22 8.11 COLLECTION OF ASSESSMENTS: LIENS .................. 24 8.11.1 Right to Enforce ........................... 24 8.11.2 Creation of Lien ........................... 23 8.11.3 Notice of Default; Foreclosure .............23 8.12 WAIVER OF EXEMPTIONS ............................... 24 8.13 NO OFFSETS ......................................... 24 8.14 SUBORDINATION OF THE LIEN TO FIRST MORTGAGES ....... 24 8.15 PERSONAL LIABILITY OF OWNER ........................ 24 (iii) 8.16 TRANSFER OF PROPERTY .24 8.17 PROPERTY EXEMPT FROM ASSESSMENTS ...................25 ARTICLE 1X- PROCEDURES FOR ARCHITECTURAL APPROVAL ............25 9.1 ARCHITECTURAL APPROVAL ............................. 25 9.2 SCOPE ........................................... 25 9.3 DILIGENCE IN CONSTRUCTION .......................... 25 9.4 FEE FOR REVIEW..................................... 26 9.5 PRELIMINARY APPROVAL ............................... 26 9.5.1 Time Periods for Review.................... 26 9.5.2 Effectiveness of Approval .................. 26 9.5.3 Limitation ................................. 26 9.6 INSPECTION AND CORRECTION OF WORK .................. 27 9.6.1 Right of Inspection During Course of Construction ............................... 27 9.6.2 Notice of Completion ....................... 27 9.6.3 Inspection ................................. 27 9.6.4 Non -Compliance ............................. 2 7 9.6.5 Failure to Notify .......................... 27 9.6.6 Government Regulations ............ 28 9.7 ARCHITECTURAL GUIDELINES ........................... 28 9.8 WAIVER ........................................... 28 9.9 ESTOPPEL CERTIFICATE ............................... 28 9.10 LIABILITY...... . . . . . . ............ . . . . . . . .......... 28 9.11 NON-APPLICABILITY TO DECLARANT ..................... 29 9.12 GOVERNMENT REQUIREMENTS ...................... 29 9.13 VARIANCES .......................................... 29 ARTICLE X - DEVELOPMENT RIGHTS ................................29 10.1 LIMITATIONS OF RESTRICTIONS ........................29 10.2 RIGHTS OF ACCESS AND COMPLETION OF CONSTRUCTION .... 29 10.2.1 Access ......29 10. 2.2 Construct Improvements .....................29 10.2.3 Grant Easements ........................... 30 10.3 MARKETING RIGHTS ...................................30 ARTICLE XI - INSURANCE AND CONDEMNATION.......................31 11.1 INSURANCE ..........................................31 11.1.1 Fire Insurance .............................31 11.1.2 Liability Insurance ........................31 11.1.3 Fidelity Bond Insurance ....................31 11.1.4 Copies of Insurance ........................31 11.1.5 Other Insurance ........... . . 31 11.1.6 Review of Insurance ........................32 11.2 CONDEMNATION OF COMMON AREA ........................ 32 (iv) ARTICLE XII - RIGHTS OF MORTGAGEES .32 12.1 -CONFLICT ........................................... 32 12.2 -LIABILITY FOR UNPAID ASSESSMENTS ................... 32 12.3 PAYMENT OF TAXES AND INSURANCE ..................... 32 12.4 RESERVE FUND ....................................... 33 12.5 INSPECTION OF BOOKS AND RECORDS .................... 33 12.6 MORTGAGEE PROTECTION ............................... 33 12.7 DISTRIBUTION OF INSURANCE AND CONDEMNATION PROCEEDS ...................... .............. 33 12.8 EFFECT OF BREACH ................................... 33 12.9 FORECLOSURE ................. 33 12.10 NON-CURABLE BREACH ................................. 34 12.11 LOAN TO FACILITATE ................................. 34 12.12 APPEARANCE AT MEETINGS ............................. 34 12.13 RIGHT TO FURNISH INFORMATION ....................... 34 12.14 VOTING RIGHTS ON DEFAULT ........................... 34 12.15 INAPPLICABILITY OF RIGHT OF FIRST REFUSAL TO MORTGAGEE ................... 34 ARTICLE XIII - AMENDMENTS .....................................35 13.1 AMENDMENT BEFORE THE CLOSE OF FIRST SALE ..........35 13.2 AMENDMENTS .........................................35 13.3 BUSINESS AND PROFESSIONS CODE SECTION 11018.7 ......35 13.4 RELIANCE ON AMENDMENTS .............................35 ARTICLE XIV - GENERAL PROVISIONS ..............................35 14.1 DURATION. ........ 35 14.2 ENFORCEMENT AND NONWAIVER .......................... 36 14.2.1 Right of Enforcement ....................... 36 14.2.2 Violation of Law........................... 36 14.2.3 Remedies Cumulative ........................ 36 14.2.4 Nonwaiver .................................. 36 14.3 OBLIGATIONS OF OWNERS . . . . . . .................. . . . . . 36 14.4 SE\7ER.ABILITY ....................................... 36 14.5 HEADINGS. . . . . . ............... 36 14.6 VIOLATIONS AS NUISANCE ............................. 36 14.7 NO RACIAL RESTRICTION.............................. 37 14.8 ACCESS TO BOOKS .................................... 37 14.9 LIBERAL CONSTRUCTION .............................. 37 14.10 NOTIFICATION OF SALE OF LOT ........................ 37 14.11 NUMBER; GENDER ..................................... 37 14.12 -EXHIBITS ........................................... 37 14.13 EASEMENTS RESERVED AND GRANTED ..................... 37 14.14 BINDING EFFECT ..................................... 37 (v) DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - OF -- CANYON PLACE HOMEOWNERS ASSOCIATION THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF CANYON PLACE HOMEOWNERS ASSOCIATION ("Declaratiox) is made on , 1987 by DIANE LEE VILLESCAZ, an individual ("Villescaz"), and ALTON L. RUDEN AND LORNA RUDEN (collectively "Ruden") (hereinafter Ruden and Villescaz are referred to collectively as "Declarant") with reference to the facts set forth below. ARTICLE I RECITALS 1.1 Property Owned by Declarant. Villescaz is the owner in fee simple of that certain real property situated in the City of Carlsbad, County of San Diego, State of California, more particularly described on Exhibit "A-l" attached hereto and incorporated herein and Ruden is the owner in fee simple of that certain real property situated in the City of Carlsbad, County of San Diego, State of California, more particularly described on Exhibit "A-2" attached hereto and incorporated herein (herein the real property described in Exhibits A-i and A-2 is referred to collectively as the "Property"). 1.2 Nature of Neighborhood. Declarant intends to develop the Property as a Neighborhood which will constitute a planned Neighborhood within the meaning of California Civil Code Section 1351(j). To that objective, Declarant desires and intends to impose on the Property mutual beneficial restrictions, easements, assessments and liens under a general plan of improvement for the benefit of all of the Lots and Common Area and the future owners of said Lots and Common Area. DECLARATION 1.3 Declarant declares that the Property is, and shall be, held, conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved subject to the following limitations, restrictions, easements, covenants, conditions, liens and charges as stated in this Declaration, all of which are declared and agreed to be in furtherance of a general plan for the sub- division, improvement, protection, use, maintenance, and sale of all of 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 said Property and every part thereof. All of the limitations, restrictions, easements, cove- nants, conditions, liens and charges hereof are equitable servi- tudes enforceable by any of the Owners of any Lot against other 3/24/87 Owners, tenants or occupants of the Neighborhood, or any portion thereof and shall run with the land, shall be binding on and inure to the benefit of all parties having or acquiring any right, title or interest in the Property, and shall be binding on and inure to the benefit of the successors-in-interest of such parties. ARTICLE II DEFINITIONS Unless the context otherwise specifies or requires, the terms defined in this Article II shall, for all purposes of this Declaration, have the meanings herein specified. 2.1 ARTICLES. The term "Articles" shall mean the Articles of Incorporation of the Association as they may from time to time be amended which are or shall be filed in the Office of the Secretary of State for the State of California. 2.2 ASSOCIATION. The term "Association" shall mean Canyon Place Homeowners Association, a California nonprofit mutual benefit corporation, its successors and assigns. 2.3 ASSOCIATION RULES. The term "Association Rules" shall mean the rules and regulations which may be adopted by the Board from time to time. 2.4 BOARD. The term "Board" shall mean the Board of Directors of the Association. 2.5 BYLAWS. The term "Bylaws" shall mean the Bylaws of the Association, as they may from time to time be amended which are or shall be adopted by the Board. 2.6 COMMON AREA. The term "Common Area" shall mean Lots , - and - and the improvements situated thereon, owned by the Association for the common use and enjoyment of the Owners. 2.7 COMMON MAINTENANCE AREA. The term "Common Maintenance Area" shall mean and refer collectively to the Common Area and all sidewalks, drainage systems, street signs and the cribwall installed by Declarant for the benefit of all Owners. 2.8 COUNTY. The term "County" shall mean the County of San Diego, California. 2.9 DECLARANT. The term "Declarant" shall mean, with respect to the real property described, on Exhibit "A-l" Diane Lee Villescaz and, with respect to the real property described on Exhibit "A-2," Alton L. Ruden and Lorna Ruden and the successors and assigns of Villescaz and Ruden, if such successors and assigns acquire any or all of each of the Declarant's interests 2 3/24/87 in the Property for the purpose of development or sale, and such Declarant has expressly transferred or assigned to such successors-or assigns its rights and duties as Declarant to the portion or-of the Property owned by such Declarant. For any suc- cessor or assign of "Declarant" to be deemed a Declarant under the terms hereof, Declarant shall record in the County a certifi- cate so designating said successor or assignee as Declarant. A successor Declarant shall also be deemed to include the benefi- ciary under any deed of trust securing an obligatiori from a then existing Declarant encumbering all or any portion of the Property, which beneficiary has acquired any such property by foreclosure, power of sale or deed in lieu of such foreclosure or sale. 2.10 DECLARATION. The term "Declaration" shall mean and refer to this enabling Declaration Of Covenants, Conditions and Restrictions of Canyon Place Homeowners Association as said Declaration may from time to time be amended. 2.11 FIRST MORTGAGE. The term "First Mortgage" shall mean a Mortgage which has priority under the recording statutes of the State of California over all other Mortgages encumbering a specific Lot in the Neighborhood. 2.12 FIRST MORTGAGEE. The term "First Mortgagee" shall mean the Mortgagee of a First Mortgage. 2.13 GARAGE. The term "Garage" shall mean the enclosed garage parking space located within each Lot, established and designed for the parking of vehicles. 2.14 IMPROVEMENTS. The term "Improvements" shall include buildings, outbuildings, roads, driveways, parking areas, fences, screening walls, retaining walls, stairs, decks, hedges, wind- breaks, plantings, planted trees and shrubs, poles, signs, swimming pools and tennis courts and all other structures or landscaping improvements of every type and kind. 2.15 INSTITUTIONAL MORTGAGEE. The term "Institutional Mortgagee" shall mean a First Mortgagee which is (i) a bank, savings and loan association, insurance or mortgage company or other entity or institution chartered under federal and/or state law; (ii) an insurer or governmental guarantor of a First Mort- gage; or (iii) the State of California as the vendor under an installment land sales contract covering a Lot. 2.16 INVITEE. The term "Invitee" shall mean any person whose presence within the Neighborhood is approved by or is at the request of a particular Owner, including, but not limited to, lessees, tenants and the family, guests, employees, licensees or invitees of Owners, tenants or lessees. 2.17 LOT. The term "Lot" shall mean the subdivided res- idential Lots, whether improved or unimproved, shown on a 3 3/24/87 recorded Subdivision Map or Parcel Map within the boundaries of the Property and all easements appurtenant thereto. 2.18 -MEMBER. The term "Member" shall mean a person who is a Member of the Association pursuant to the provisions of Article VI. 2.19. MORTGAGE. The term "Mortgage" shall mean any duly recorded mortgage or deed of trust encumbering a Lot in the Neighborhood. 2.20 MORTGAGEE. The term "Mortgagee" shall mean a mortgagee under a Mortgage as well as a beneficiary under a deed of trust. 2.21 NEIGHBORHOOD. The term "Neighborhood" shall mean all of the real property described in Exhibits "A-l" and "A-2" above, together with all Improvements made thereon. 2.22 OWNER. The term "Owner" shall mean the record owner, whether one or more persons or entities, including Declarant, of the fee simple title to any Lot situated in the Neighborhood, excluding those having such interest merely as security for the performance of an obligation. A contract purchaser under a recorded installment land sales contract shall be included as an Owner but those merely having an interest as security for the performance of an obligation shall not be Owners. 2.23 PRIVATE STREET. The term "Private Street" shall mean Lot - which is included in the Common Area. 2.24 PROPERTY. The term "Property" shall include all of the real property described in Exhibits "A-i" and "A-2" of this Declaration. 2.25 RESIDENCE. The term "Residence" shall mean a building or buildings on a Lot used for residential purposes. ARTICLE III OWNERSHIP AND EASEMENTS 3.1 NON-SEVERABILITY. 3.1.1 No Separate Conveyance. The interest of each Owner in the use and benefit of the Common Area shall be appur- tenant to the Lot owned by the Owner. No Lot shall be conveyed by the Owner separately from the interest in the Common Area. Any conveyance of any Lot shall automatically transfer the right to use the Common Area without the necessity of express reference in the instrument of conveyance. 3.1.2 No Judicial Partition. There shall be no judicial partition of the Common Area. Each Owner, whether by 4 3/24/87 deed, gift, devise or operation of law, for his own benefit and for the benefit of all other Owners, specifically waives and abandons all rights, interests and causes of action for judicial partition -of any interest in the Common Area and does further agree that no action for judicial partition shall be instituted, prosecuted or reduced to judgment. 3.2 OWNERSHIP OF LOTS. Title to each Lot in the Neighborhood shall be conveyed in fee to an Owner. '1f more than one person and/or entity (other than the Association) owns an undivided interest in the same Lot, such persons and/or entities shall constitute one (1) Owner. 3.3 OWNERSHIP OF COMMON AREA. Title to the Common Area shall be conveyed to the Association prior to or concurrently with the conveyance of the first Lot in the Neighborhood to an Owner and the Association shall accept the conveyance transferred to it. The Common Area shall be held, maintained and used to meet the common interests of the Members of the Association and their Invitees as provided by this Declaration. 3.4 EASEMENTS. The ownership interests in the Common Area and Lots described in this Article are subject to the easements granted and reserved in this Declaration. Each of the easements reserved or granted herein shall be deemed to be established upon the recordation of this Declaration and shall thenceforth be deemed to be covenants running with the land for the use and benefit of the Owners and their Lots superior to all other encum- brances applied against or in favor of any portion of the Neighborhood. Individual grant deeds to Lots may, but shall not be required to, set forth the easements specified in this Article. 3.4.1 Easements For Common Area. Every Owner shall have a non-exclusive right and easement of use and enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the provisions set forth below: (a) Dedicate or Grant Easements. The right of the Association to dedicate and/or grant easements over all or any portion of the Common Area. (b) Right of Access. The right of every Owner to enjoy free and unobstructed passage between every such Owner's Lot and all publicly dedicated streets bordering the Neighborhood, subject to any restrictions imposed by any county, state or federal government. (C) Acts Which Increase Insurance. The right of the Association to prohibit anything from being done or kept in the Common Area which will increase the rate of insurance on any of the Common Area without the prior written consent of the Board. 5 3/24/87 (d) Control Parking. The right of the Association to assign, license or otherwise designate and control parking within the Common Area. (e) Emergency Repairs. The right of the Association's agents or employees to enter upon any portion of the Common Area to (a) effect emergency repairs in accordance with the provisions of this Declaration, (b) for the purpose of performing the maintenance of the Common Area, or '(c) for any other purpose reasonably related to the performance by the Board of its responsibilities under this Declaration. (f) Borrow Funds. The right of the Association, in accordance with this Declaration and the Bylaws, to borrow money for the purpose of improving, maintaining or repairing the Common Area. 3.4.2 Declaration Subject to Easements. Notwith- standing anything herein expressly or impliedly to the contrary, this Declaration shall be subject to all easements heretofore or hereafter granted by Declarant for the installation and main- tenance of utilities and drainage facilities that are necessary for the development of the Neighborhood. 3.4.3 Encroachments. Each Owner of a Lot adjacent to the Common Area or another Lot shall hereby have a non- exclusive easement over said Common Area or contiguous Lot for use and maintenance, support or encroachments thereon due to settlement or shifting of buildings or other Improvements, original construction errors or any other similar causes, so long as such encroachments exist. However, no such easement for encroachments shall exist if an encroachment occurred due to the willful conduct of the Owner of the Lot. The rights and obligations of Owners in the Neighborhood shall not be otherwise altered or affected by any such encroachment. 3.4.4 Perform Association Functions. There are hereby reserved to Declarant, the Association or their duly authorized agents and representatives such easements over the Lots as are necessary to perform the duties and obligations of the Association as are set forth in this Declaration, or in the Bylaws, or Association Rules including, but not limited to, easements over each Lot for maintaining the Common Maintenance Areas and performing repairs or maintenance, not performed by the Owner pursuant to the terms of this Declaration. 3.4.5 Declarant's Non-Exclusive Easements. Subject to a concomitant obligation to restore and subject further to the requirement that Declarant's use of the Common Area shall not unreasonably interfere with the use thereof by the Members of the Association, Declarant and its sales agents, employees and independent contractors shall have the easements described in Article X of this Declaration. 6 3/24/87 ARTICLE IV - PROPERTY RIGHTS: RESIDENTIAL AREA 4.1 RESIDENTIAL AREA: PERMITTED USES AND LIMITATIONS. Lots within the Residential Area shall be for the exclusive use and benefit of the Owners thereof; subject, however, to all of the limitations and restrictions set forth below. 4.1.1 Residential Purposes Only. Each Lot within the Residential Area shall be improved and used exclusively for residential purposes. No building or buildings shall be erected, constructed, altered or maintained on any Lot other than (1) single-family dwelling. Nothing herein shall be deemed to prevent the leasing of any Lot from time to time by the Owner thereof subject to all of the provisions of this Declaration. 4.1.2 Commercial Use. No Lot 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 other such non-residential purpose. 4.1.3 Rental of Lots. An Owner shall be entitled to rent the Residence situated on his Lot. Any rental or leasing agreement shall be in writing, shall provide that the lease or rental is subject to this Declaration, the Bylaws, and the Association Rules and shall provide that any failure to comply with any provision of this Declaration, the Bylaws or Association Rules shall be a default under the terms of the rental or lease agreement. A copy of this Declaration shall be made available to each tenant or lessee by the Owner so renting or leasing. The Owners shall, at all times, be responsible for their tenant's or lessee's compliance with all of the provisions of this Declara- tion. A lessee shall have no obligation to the Association to pay assessments imposed by the Association nor shall any lessee have any voting rights in the Association. No Owner may lease his Lot or Improvements thereon for hotel, motel or transient purposes. Any lease which is either for a period of fewer than thirty (30) days or pursuant to which the lessor provides any services normally associated with a hotel, shall be deemed to be for transient or hotel purposes. 4.1.4 Animals. No animals of any kind shall be maintained, bred or kept on any Lot except that dogs, cats or other customary household pets in a reasonable number and size, as determined by the Board, may be kept; provided, however, that they are not kept, bred or maintained for any commercial purposes, and provided further, that the Association Rules may limit or restrict the keeping of such pets. The Board shall specifically have the right to prohibit the maintenance of any pet which, in the opinion of the Board, is deemed by the Board to constitute a nuisance to any other Owner. Each person bringing or keeping a pet within the Neighborhood shall be absolutely 7 3/24/87 liable to other Owners and their Invitees for any damage to persons or property caused by any pet brought upon or kept within the Neighborhood by such person or by his Invitees. All dogs shall be kept on a leash when outside the Owner's Lot. 4.1.5 Structures for Animals. Any structure, animal run and/or pen (collectively 'Animal Structure") for the care, housing or confinement of any house or yard pet may only be maintained if the Animal Structure is located at the' back of the Residence so as not to be visible from the front of any Lot. 4.1.6 Antennas. No antenna or satellite dish for transmission or reception of television signals or any other form of electromagnetic radiation shall be erected, used or maintained outdoors, whether attached to a building or structure or other- wise. Notwithstanding the foregoing, satellite dishes may be erected, used or maintained provided the satellite is screened from all views on the exterior of the Lot by fence, hedge or shrubbery which screening and the adequacy thereof have received the prior approval of the Board. 4.1.7 Utility Service. No lines, wires or other devices for the communication or transmission of electric current or power, including telephone, television and radio signals, shall be constructed, placed or maintained anywhere in or upon any Lot unless the same shall be contained in conduits or cables constructed, placed and maintained underground or concealed in, under or on buildings or other structures approved by the Board. Nothing herein shall be deemed to forbid the erection and use of temporary power or telephone services incident to the construction of buildings approved by the Board. 4.1.8 Improvements, Alterations and Repairs. No improvement, repair, excavation or other work which in any way alters the appearance of any Lot from its natural state existing on the date such Lot was first conveyed in fee by Declarant to an Owner shall be made or done without the prior approval of the Board except as specifically authorized herein. 4.1.9 Temporary Occupancy. No trailer, tent, shack, barn, garage, basement or any incomplete building or temporary building or structure of any kind shall be used at any time as a Residence, either temporary or permanent. Temporary buildings or structures used during the construction or improvement of a Residence shall be expressly approved by the Board and shall be removed immediately after the completion of construction. 4.1.10 Trailers, Boats and Motor Vehicles. No boat, golf cart, mobile home, recreational motor home, trailer of any kind, truck camper larger than a half (1/2) ton pick-up truck, or commercial vehicle shall be kept, placed, maintained, parked, constructed, reconstructed or repaired upon any Lot or the Common Area within the Neighborhood in such a manner as will be visible from neighboring property or adjacent streets; provided, however, 8 3/24/87 that the provisions of this Subsection shall not apply to (a) emergency vehicle repairs, (b) commercial deliveries, (C) temporary construction shelters or facilities maintained during and- used exclusively in connection with the construction of any work or improvement approved by the Board, or (d) the loading and unloading of such vehicles and the temporary parking of such vehicles for purposes of loading and unloading so long as such vehicles are not parked on a regular basis and are not parked for a period of time exceeding eighteen (18) hours at any one time. Dilapidated or vehicles under repair shall not be parked anywhere in the Neighborhood. 4.1.11 Garages. Each Residence shall, at a minimum, have a two-car Garage but no more than a three-car Garage. Each Owner shall keep his Garage in a neat and orderly condition with all storage areas completely enclosed. 4.1.12 Parking. There shall be no parking of any vehicle on any Private Streets in the Neighborhood except in areas designated for parking by the Board. 4.1.13 Nuisances. No rubbish or debris of any kind shall be placed or permitted to accumulate on or adjacent to a Lot or on the Common Area, and no odors shall be permitted to arise therefrom, which might render any Lot or portion thereof unsanitary, unsightly, harmful or detrimental to any of the prop- erty in the vicinity thereof or to the occupants thereof. No Owner shall permit anything or condition to exist upon his Lot which shall induce, breed, or harbor infectious plant diseases or noxious insects. No nuisance shall be permitted to exist or operate upon any Lot which might be harmful or detrimental to any property in the vicinity thereof or to its occupants. Without limiting any of the foregoing, no exterior speakers, horns, whistles, bells or other sound devices, except security devices used exclusively for security purposes, shall be located, used or placed on a Lot. 4.1.14 Trash Containers and Collection. All garbage and trash shall be placed and kept in covered containers. In no event shall such containers be maintained so as to be visible from the front of any Lots. After nightfall of the day preceding trash collection each Owner may place trash in covered containers or plastic bags outside the Residence. Each Owner shall remove such trash containers by nightfall of the trash collection day. 4.1.15 Clothes Drying Facilities. No outside clotheslines or other outside clothes drying or airing facilities shall be maintained on any Lot unless such facilities are adequately concealed so as not to be seen from any adjacent property. 4.1.16 Exterior Lighting. Any exterior electrical, gas or other artificial lighting installed on any Lot shall be positioned, screened, or otherwise directed or situated so that 9 3/24/87 the filament, bulb, flame, or other lights shall not be directly visible from any other Lot or from within any Residence on any other Lot and shall be of such controlled focus and intensity so as not ta unreasonably disturb the residents of any other Lot(s). No Owner shall be permitted to install exterior lighting for the purpose of lighting any tennis court or racketball court. 4.1.17 Fences. Each fence installed between separate Lots shall be placed on the property line between 'the Lots and shall constitute a party wall and be governed by the provisions of Section 4.2 below. There shall be only one (1) fence installed on a common property boundary. In the event any Owner elects to construct a fence along a common property boundary prior to the time that the Lot sharing such common property boundary has been conveyed to an Onwer, then the fence installed by such Owner shall be a wooden fence. 4.1.18 Private Street. No Owner or Owner's Invitees shall use the Private Street for recreational and/or sporting activities. 4.1.19 Balconies. No Owner shall use any balcony attached to the Residence included within his Lot for storage purposes. 4.1.20 Mineral Exploration. No Lots shall be used in any manner to explore for or to remove any water, oil or other hydrocarbons, minerals of any kind, gravel, earth or any earth substance or other mineral of any kind. No well for the pro- duction of, or from which there is produced, water, oil or gas shall be operated upon any Lot, nor shall any machinery, appli- ance or structure be placed, operated or maintained thereon for use in connection with any trading, manufacturing or repairing business. No slant drilling shall be permitted on any Lot. 4.1.21 Machinery and Equipment. No machinery or equipment of any kind shall be placed, operated or maintained upon or adjacent to any Lot except such machinery or equipment as is usual and customary in connection with the use, maintenance or construction of a Residence or landscaping on a Lot. Notwith- standing the foregoing, machinery or equipment which is used for home-hobby purposes may be used provided such machinery or equipment does not constitute a nuisance and provided further that such machinery or equipment is not used between the hours of 9:00 p.m. and 7:00 a.m. 4.1.22 Landscaping. Within one hundred twenty (120) days after filing a notice of completion for a Residence, each Lot shall be landscaped by each Owner in accordance with land- scaping plans which shall have received the prior approval of the Board. All landscaping on Lots shall be maintained in a clean, attractive and well-kept condition, and trees, shrubs and plantings shall be trimmed so that they shall not unreasonably overhang or encroach upon, above or below any other Lot sidewalk 10 3/24/87 or street. No trees, hedges or other plant materials shall be so located or allowed to reach a size or height which will interfere with the view from any Lot and, in the event such trees, hedges or other plant materials do reach a height which interferes with the view from another Lot, then the Owner thereof shall cause such tree(s), hedge(s) or other plant material(s) to be trimmed. The Board shall be the final arbitrator for determining whether or not any tree(s) or hedge(s) or other plant material(s) should be trimmed or removed. 4.1.23 Painting Required. All buildings and fences on any Lot which are of frame construction shall be painted or stained upon completion. 4.1.24 Diligence in Construction Required. The work of constructing and erecting any Improvements on any Lot shall be prosecuted diligently from the commencement thereof, and the same shall be completed within a reasonable time in accordance with the requirements herein contained. 4.1.25 Drainage. No Owner of a Lot shall in any way interfere with or change the established drainage pattern over his Lot for adjoining or other Lots; provided, however, each Owner will make adequate provisions for proper drainage in the event it is necessary to change the established drainage over his Lot. For the purpose hereof, "established drainage" is defined as the drainage which occurred at the time the overall grading of said Lot was completed by Declarant. Any change in grading or drainage on any Lot shall first be approved by the Board and by the City of Carlsbad. Each Owner shall permit free access by Owners of adjacent or adjoining Lots to slopes or drainageways located on his Lot when such access is necessary for the main- tenance of permanent stabilization on said slopes or of the drainage facilities to protect property other than the Lot on which the slope or drainageway is located. 4.1.26 Slope Control, Use and Maintenance. Each Owner will keep, maintain, water, plant and replant all slope banks located on such Owner's Lot so as to prevent erosion and to create an attractive appearance. No structure, planting or other material shall be placed or permitted to remain or other activities undertaken on any of said slope banks which may damage or interfere with established slope ratios, create erosion or sliding problems, or which may change the direction of flow of drainage channels, if any, or obstruct or retard the flow of water through drainage channels, if any. 4.1.27 Restrictions on Further Subdivision. No Lot shall be further subdivided nor shall less than all of any such Lot be conveyed by an Owner thereof. 4.1.28 Signs. No signs whatsoever (including but without limitation, commercial, political and similar signs) which are visible from neighboring property shall be erected or 11 3/24/87 maintained on any Lot except: (a) such signs as may be required by legal proceedings or the City of Carlsbad; (b) residential identification signs, subject to the approval of the Board as to suitability; (C) job identification signs during the time of construction of any Residence or other improvement by Declarant; and (d) not more than one "for sale" or "for rent" sign per Lot of reasonable dimensions, pursuant to the Association Rules, if any. 4.1.29 Increase Rate of Insurance. Nothing shall be done or kept on the Common Area which would increase the rate of insurance insured by the Association without the prior written approval of the Board or result in the cancellation of insurance on any property insured by the Association or which would be a violation of any law. 4.1.30 Indemnification. Each Owner shall be liable to the remaining Owners for any damage to the Common Area or Common Maintenance Area that may be sustained by reason of the negligence of that Owner or his 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 Owner's 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 occurring within the Lot of that particular Owner and within any exclusive easements, if any, over the Common Area appurtenant to the Owner's Lot, unless the injury or damage occurred by reason of the negligence of any other Owner or person temporarily visiting in said Lot or portion of the Common Area subject to an exclusive easement appurtenant to the Lot or is fully covered by insurance. 4.2 PARTY WALLS AND FENCES. Each wall or fence, if any, which is placed on the dividing line between the Lots shall con- stitute a party wall or fence, and, to the extent not inconsis- tent with the provisions of this section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. 4.2.1 Owners Own to Center Line. Each Owner of a Lot upon which a party wall or fence exists shall own to the center of such wall or fence. 4.2.2 Reciprocal Non-Exclusive Easements. The Owner of each Lot upon which a party wall or fence is located shall have a reciprocal non-exclusive easement to each contiguous Lot for the purpose of maintaining the party wall or fence. The costs of reasonable repair and maintenance of a party wall or fence shall be shared by the Owners who make use of the wall or fence in proportion to such use. If a party wall or fence is destroyed or damaged by fire or other casualty, any Owner who has used the wall or fence may restore it, and if the other Owners thereafter make use of the wall or fence, they shall contribute to the cost of restoration thereof in proportion to such use. 12 3/24/87 Such contribution shall be made without prejudice, however, to the right of the Owner who originally restored the wall or fence to call for a larger contribution from such other Owners under any rule of law regarding liability for negligent or willful acts or omissions. The right of any Owner to contributions from any other Owner under this section shall be appurtenant to the Lot and shall pass to such Owner's successors in title. 4.2.3 Dispute Resolution. In the eient of any dispute arising concerning a party wall, or under the provisions of this Article, the matter shall be resolved by the Board, whose decision shall be binding upon the parties. ARTICLE V IMPROVEMENTS 5.1 MAINTENANCE OBLIGATION OF THE ASSOCIATION. The Association shall be responsible for maintenance, repair, replacement, painting and upkeep of Common Area and the Common Maintenance Area. The Association shall keep such Common Area, Common Maintenance Area and other areas which must be maintained by the Association and any Improvements situated thereon in good condition and repair, provide for all necessary services and cause all acts to be done which may be necessary or proper to assure the maintenance of such Common Area, Common Maintenance Area and other areas which must be maintained by the Association in first class condition. 5.2 ALTERATIONS TO COMMON AREA. 5.2.1 Approval. Except as provided herein, no person other than the Association or its duly authorized agents shall construct, reconstruct, refinish, alter or maintain any improvement upon, shall make or create any excavation or fill upon or shall destroy or remove any tree, shrub or other vegeta- tion upon any Common Area or Common Maintenance Areas. A proposal for any construction of or alteration, maintenance or repair to an improvement by the Association may be made at any regular or special meeting. A proposal may be adopted by the Board, subject to the limitations contained in the Bylaws. 5.2.2 Funding. Expenditures for alterations, main- tenance or repairs to an existing capital improvement for which a reserve has been collected shall be made from a reserve account established by the Association (as hereinafter defined). The Board may levy a Special Assessment (as hereinafter defined) to fund any construction, alteration, repair or maintenance of an improvement for which no reserve has been collected or if the Reserve Account contains insufficient funds to cover the cost of the proposed improvement. 5.3 MAINTENANCE OF RESIDENCES BY OWNERS. Each Owner shall keep all portions of the Owner's Residence and other Improvements 13 3/24/87 situated on the Owner's Lot in good repair and condition, includ- ing exterior surfaces, driveways and any skylights, windows and other glass surfaces. 5.4 LANDSCAPING. All landscaping in the Neighborhood shall be maintained and cared for in a manner consistent with the provisions of this Declaration and the Association Rules and in conformance with standards of design and quality originally established by Declarant and in a condition comparable to that of other first class residential subdivisions in the County of San Diego. 5.4.1 Common Area. The Association shall be respon- sible for all landscaping located on the Common Area and the Common Maintenance Area. 5.4.2 Lots. The Lot Owner shall maintain any landscaping installed on a Lot in an attractive and well-kept condition. All landscaping shall comply with the provisions of the Association Rules. 5.5 DAMAGE AND DESTRUCTION. The term "restore" shall mean repairing, rebuilding or reconstructing damaged Common Area to substantially the same condition in which it existed prior to fire or other casualty damage. 5.5.1 Contracting to Restore. If fire or other casualty damage extends to any Common Area or any other area insured by the Association, the Association shall proceed with the filing and adjustment of all claims arising under the existing insurance policies. The insurance proceeds shall be paid to and held by the Association. The Board shall obtain such bids from responsible licensed contractors to restore the Common Area or other areas insured by the Association as the Board deems reasonable and, if the total funds available without a vote of Members is sufficient to restore the damaged Common Area or other of said area, the Board shall, on behalf of the Association, contract with the contractor whose bid the Board deems to be the most reasonable. The contractor shall provide a completion bond naming the Association and each Owner as beneficiaries. If the insurance proceeds exceed the costs of restoration, the excess proceeds shall be paid to the Reserve Account and held for the benefit of the Association. 5.5.2 Priority in Use of Funds. The costs of resto- ration of Common Area or other areas as insured by the Association shall be funded first by any insurance proceeds paid to the Association under existing insurance policies and then by any Reserve Account funds designated for the repair or replace- ment of the capital improvement which has been damaged. If the aggregate amount of funds is still insufficient to pay the total costs of restoration, a Special Assessment against all Owners may be levied by the Board in accordance with the provisions of Section 8.6 of this Declaration except that the limitations on 14 3/24/87 the amount of the Special Assessment set forth in Section 8.6 shall not apply. -5.5.3 Insufficient Funds. If the total funds avail- able to restore the Common Area or other areas insured by the Association without a vote of the Members for an additional Special Assessment is insufficient to restore the Common Area, then a meeting shall be called for the purpose of voting whether to impose an additional Special Assessment and deciding upon the amount of such an additional Special Assessment. The Board shall then contract for the restoration of the Common Area as described above, making use of whatever funds are then available to it. 5.6 DELEGATION OF RIGHT OF USE. Any Owner may delegate his rights of use and enjoyment in the Common Area, to the Owner's Invitees, and to such other persons as may be permitted by the Bylaws and the Association Rules, subject however, to this Declaration, the Bylaws and the Association Rules. However, if an Owner of a Lot has sold his Lot to a contract purchaser or rented it, the Owner, and the Owner's Invitees shall not be entitled to use and enjoy the facilities of the Association, if any, while the Owner's Lot is occupied by such contract purchaser or tenant. Instead, the contract purchaser or tenant, while occupying such Lot, shall be entitled to use and enjoy the Common Area, if any, and can delegate the rights of use and enjoyment in the same manner as if such contract purchaser or tenant were an Owner during the period of his occupancy. Each Owner shall notify the secretary of the Association of the names of any contract purchasers or tenants of such Owner's Lot. Each Owner, contract purchaser or tenant also shall notify the secretary of the Association of the names of all persons to whom such Owner, contract purchaser, or tenant has delegated any rights of use and enjoyment in the Neighborhood and the relationship that each such person bears to the Owner, contract purchaser, or tenant. Any delegated rights of use and enjoyment are subject to suspension to the same extent as are the rights of Owners. ARTICLE VI THE ASSOCIATION 6.1 THE ORGANIZATION. The Association is a nonprofit mutual benefit corporation formed under the Nonprofit Mutual Benefit Law of California charged with the duties and empowered with the rights set forth herein and in the Articles and its affairs shall be governed by this Declaration, the Articles and the Bylaws. On the close and recording of the first Lot sale to an Owner, other than Declarant, 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 Common Maintenance Area and any facilities on the Common Area or the Common Maintenance Area. 15 3/24/87 6.2 ASSOCIATION ACTION; BOARD OF DIRECTORS AND OFFICERS; MEMBERS' APPROVAL. Except as to matters requiring the approval of Members as set forth in this Declaration 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 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. 6.3 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 if such person or entity has, on the basis of such information as may be possessed by him or it, acted in good faith without wilful or intentional misconduct. 6.4 ORGANIZATIONAL MEETING OF MEMBERS. An organizational meeting shall be held as soon as practicable after incorporation of the Association, and the directors elected then shall hold office until the first annual meeting. All offices of the Board shall be filled at the organizational meeting. 6.5 REGULAR MEETINGS OF MEMBERS AND NOTICE. The first annual meeting of Members of the Association shall be held within sixty (60) days after the closing of the sale of at least five (5) Lots in the Neighborhood to Owners, other than Declarant or at any earlier time- as may be called by the Declarant. There- after, regular meetings of Members of the Association shall be held at least once in each calendar year at a time and place within the Neighborhood as prescribed in the Bylaws or as selected by the Board. Special meetings may be called as pro- vided for in the Bylaws. Notice of all Members' meetings, regular or special, shall be given by regular mail, personal delivery or telegram to all Owners and to any Mortgagee who has requested in writing that such notice be sent to it and shall be given not less than ten (10) days nor more than thirty (30) days before the time of the meeting and shall set forth the place, date, and hour of the meeting, and the nature of the business to be undertaken. 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 consti- tute a quorum. If any meeting cannot be held because a quorum is not present, Members representing a majority of the votes present, either in person or by proxy, may adjourn the meeting to a time not less than five (5) days nor more than thirty (30) days from the date the original meeting was called, at which adjourned 16 3/24/87 meeting the quorum requirement shall be at least twenty-five percent (25%) of the total votes. Any meeting of Members at which a quorum is present may be adjourned for any reason to a time not less than forty-eight (48) hours nor more than thirty (30) days from the time of such meeting by Members representing a majority of the votes present in person or by proxy. 6.6 INSPECTION OF ASSOCIATION BOOKS AND RECORDS. 6.6.1 Records Available. Any membership register, books of account and minutes of meetings of the Members, the Board and committees of the Board of the Association, shall be made available for inspection and copying by any Member of the Association, or his duly-appointed representative, or any Mortgagee (provided such copying is at no cost to the Associa- tion), 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 Neighborhood as the Board prescribes. 6.6.2 Rules Regarding Inspection. The Board shall establish by resolution reasonable rules with respect to: (a) Notice to be given to the custodian of the records of the Association by the Member, representative or Mortgagee desiring to make an inspection; (b) Hours and days of the week when an inspection may be made; and (c) Payment of the cost of reproducing copies of documents requested by a Member or by a representative or Mortgagee. 6.6.3 Rights of Directors. Every director of the Association 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. ARTICLE VII MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 7.1 MEMBERSHIP 7.1.1 Qualifications. Each Owner of a Lot which is subject to assessment, including Declarant, shall be a Member of the Association. Ownership of a Lot or interest in it 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 Lots in the Neighborhood 17 3/24/87 ceases at which time his membership in the Association shall automatically cease. Persons or entities who hold an interest in a Lot merely as security for performance of an obligation are not to be regarded as Members. 7.1.2 Members' Rights and Duties. Each Member shall have the rights, duties, and obligations set forth in this Declaration, the Bylaws and the Association Rules, as the same may from time to time be amended. 7.1.3 Transfer of Membership. The Association membership of each person or entity who owns, or owns an interest in, one or more Lots shall be appurtenant to each such Lot, and shall not be assigned, transferred, pledged, hypothecated, conveyed or alienated in any way except on a transfer of title to each such Lot or interest in it and then only to the trans- feree. Any attempt to make a prohibited transfer shall be void. Any transfer of title to a Lot or interest in it shall operate automatically to transfer the appurtenant membership right in the Association of the new Owner. 7.2 NUMBER OF VOTES. The Association shall have two (2) classes of voting membership: 7.2.1 Class A Members. Class A Members shall be all Owners, with the exception of Declarant, and shall be entitled to one (1) vote for each Lot owned. When more than one (1) person holds an interest in any Lot, all such persons shall be Members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Lot. 7.2.2 Class B Members. Class B Member(s) shall be each Declarant who shall be entitled to three (3) votes for each Lot owned. The Class B membership for each Declarant shall cease and be converted to Class A membership on the happening of the earliest of the following to occur: (a) ten years after the date of this Declaration, or (b) the date that such Declarant no longer owns more than one (1) Lot subject to this Declaration. 7.2.3 Joint Owner Votes. The voting rights for each Lot may not be cast on a fractional basis. If the joint Owners of a Lot 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 Lot, it will be conclusively presumed for all purposes that he was acting with the authority and consent of all other Owners of the same Lot. If more than one (1) person or entity exercises the voting rights for a particular Lot, their votes shall not be counted and shall be deemed void. 18 3/24/87 ARTICLE VIII ASSESSMENTS AND DUES 8.1 CREATION OF LIEN AND PERSONAL OBLIGATION FOR ASSESS- MENTS. Declarant, for each Lot owned within the Property, hereby covenants, and each Owner of a Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agrees to pay to the Association all assessments levied pursuant to the provisions of this Declara- tion. The assessments levied hereunder, together with interest, costs and reasonable attorney's fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made, the lien to be effective upon recordation of a notice of delinquent assessments. Each such assessment, together with interest, costs and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of such Lot at the time when the assess- ment fell due. If more than one person or entity was the Owner of a Lot, the personal obligation to pay such assessment, or installment respecting such Lot shall be both joint and several. 8.2 FUNDS. The assessments collected by the Association shall be held by the Association for and on behalf of each Owner and shall be used solely for the operation, care and maintenance of the Neighborhood as provided in this Declaration. Upon the sale or transfer of any Lot, the Owner's interest in the funds shall be deemed automatically transferred to the successor in interest of such Owner. 8.3 PURPOSE OF ASSESSMENTS. The assessments levied by the Association shall be used exclusively to promote the health, safety and welfare of the residents of the Property and for the improvement and maintenance of the Common Area and Common Maintenance Area, and to reimburse the Association for the costs incurred in bringing an Owner into compliance with the Bylaws, Declaration and Association Rules. 8.4 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 assess- ment, or installment became due and payable. If more than one person or entity was the Owner of a Lot, the personal obligation to pay such assessment, or installment respecting such Lot shall be both joint and several. 8.5 REGULAR ASSESSMENTS. 8.5.1 Payment of Regular Assessments. Regular assessments ("Regular Assessments") for each fiscal year shall be established when the Board approves the budget for that fiscal year, which budget shall be prepared in accordance with the provisions of this Declaration. Regular Assessments shall be 19 3/24/87 levied on a fiscal year basis, as determined by the Board. Unless otherwise specified by the Board, Regular Assessments shall be due and payable in monthly installments on the first day of each month during the term of this Declaration. 8.5.2 Budgeting. Regardless of the number of Members or the amount of assets of the Association, each year the Board shall prepare, approve and make available to each Member a budget as described in the Bylaws. The total amountset forth in the budget shall be charged equally against all Lots in the Neighborhood as Regular Assessments; provided, however that pursuant to the provisions of California Civil Code Section 1366, or any successor statute or law, the Board may not establish a Regular Assessment for any fiscal year of the Association which is more than ten percent (10%) greater than the Regular Assessment of the prior fiscal year of the Association (except the first such fiscal year of the Association if it should be less than twelve (12) months) without the approval by vote or written consent of a majority of the Members present at a meeting of the Association held in accordance with the provisions of the Bylaws and conducted in accordance with the provisions of Section 7513 of the California Corporations Code or any successor statute or law; provided however, that the ten percent (10%) limitation set forth above shall not apply if the Regular Assessments are being levied for the purpose of (i) the maintenance and repair of the Common Areas, Common Maintenance Areas or other areas which the Association is obligated to maintain or repair, including, but not limited to, the payment of insurance premiums, the payment of utility bills, the costs incurred in maintaining or repairing structures or Improvements and funding reserves or (ii) for addressing emergency situations. 8.5.3 Restrictions for Tax Exemption. As long as the Association seeks to qualify and be considered as an organi- zation exempt from federal and state income taxes pursuant to Internal Revenue Code Section 528 and California Revenue and Taxation Code Section 23701t and any amendments thereto, then, notwithstanding any other provision in this Declaration, the Board shall prepare its annual budget and otherwise conduct the business of the Association in such a manner consistent with fedeal and state requirements to qualify for such status. 8.5.4 Non—Waiver of Assessments. If before the expiration of any fiscal year the Association fails to fix Regular Assessments for the next fiscal year, the Regular Assessment established for the preceding year shall continue until a new Regular Assessment is fixed. 8.6 SPECIAL ASSESSMENTS. 8.6.1 Establishing Special Assessments. If the Board determines 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 20 3/24/87 for any reason, including, but not limited to, unanticipated delinquencies, costs of construction, unexpected repairs or construction or replacements of capital improvements on the Common Area or Common Maintenance 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 assessment ("Special Assessment"). 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 Lot. 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. 8.6.2 Limits on Special Assessments. Any Special Assessment in excess of five percent (5%) of the budgeted gross expenses of the Association for. the fiscal year in which a Special Assessment is levied shall require approval by vote or written consent of a majority of the Members present at a meeting of the Association held in accordance with the provisions of the Bylaws and conducted in accordance with the provisions of Section 7513 of the California Corporations Code or any successor statute or law; provided however, that the five percent (5%) limitation set forth above shall not apply if the Special Assessments are being levied for the purpose of (i) the maintenance and repair of the Common Areas, Common Maintenance Areas or other areas which the Association is obligated to maintain or repair, including, but not limited to, the payment of insurance premiums, the payment of utility bills, the costs incurred in maintaining or repairing structures or Improvements and funding reserves or (ii) for addressing emergency situations. 8.7 ENFORCEMENT ASSESSMENTS. The Association may levy an enforcement assessment ("Enforcement Assessment") against any Owner who causes damage to the Common Area or Common Maintenance Area or for bringing an Owner or his Lot into compliance with the provisions of this Declaration, the Bylaws or the Association Rules, or any other charge designated an enforcement assessment in this Declaration, the Bylaws or the Association Rules, together with attorneys' fees, interest and other charges related thereto as provided in this Declaration. In the event the Association undertakes to provide materials or services which benefit individual Owners, then such Owners in accepting such materials or services agree that the costs thereof shall be an Enforcement Assessment. The Board shall have the authority to adopt a reasonable schedule of assessments for any violation of this Declaration, the Bylaws and/or Association Rules. If, after notice and a hearing as required by this Declaration and which satisfy the requirements of Section 7341 of the California Corporations Code the Owner fails to cure or continues such 21 3/24/87 violation, the Association may impose an additional fine each time the violation is repeated, and may assess such Owner and enforce the Enforcement Assessment as herein provided for non- payment of -an assessment. A hearing committee may be established by the Board to administer the foregoing. 8.8 UNIFORM RATE OF ASSESSMENT. Regular and Special Assessments shall be fixed at a uniform rate for all Lots and may be collected on a monthly basis or other regular basis estab- lished by the Board. Regular and Special Assessments shall be determined by dividing the amount of the assessment by a number equal to the total number of Lots; provided, however, for the Lots owned by Declarant, there shall be deemed to be only one (1) Lot for each Declarant, regardless of the number of Lots owned by such Declarant conveyed by Declarant. Accordingly, if three (3) Lots have been conveyed and one Declarant owns two (2) Lots and the other Declarant owns three (3) Lots, the assessment would be divided by five (5). Enforcement Assessments shall be levied directly to the individual Lots. 8.9 DATE OF COMMENCEMENT OF REGULAR ASSESSMENTS; DUE DATES. The Regular Assessments provided for herein shall commence as to all Lots the first day of the month following the conveyance of the first Lot to an Owner by Declarant. 8.10 NOTICE AND ASSESSMENT INSTALLMENT DUE DATES. A single ten (10) day prior written notice of each annual Regular Assess- ment and each Special Assessment shall be given to any Owner of every Lot 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 assessment shall become delinquent if not paid within thirty (30) days after its due date. There shall accrue with each delinquent installment a late charge, interest charge to be set by the Board and reasonable costs of collection, including attorneys' fees, but which shall not, in any event, exceed the maximum rates permitted under California Civil Code Section 1366, or any successor statute or law. 8.11 COLLECTION OF ASSESSMENTS: LIENS 8.11.1 Right 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 repre- sentative, 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 fore- close by judicial proceedings or through the exercise of the power of sale pursuant to Section 8.11.3 to enforce the lien rights created. Suit to recover a money judgment for unpaid assessments together with all other amounts described in Section 8.10 shall be maintainable without foreclosing or waiving the lien rights. Notwithstanding anything else to the contrary 22 3/24/87 herein, a monetary penalty imposed by the Association as a disciplinary measure for failure of a Member to comply with governing instruments or as a means of reimbursing the Association for costs incurred by the Association in the repair of damage to Common Areas, Common Maintenance Areas and facili- ties for which the Member was allegedly responsible or in bringing the Member and his subdivision interest into compliance with the governing instruments of the Association may not be characterized nor treated as an assessment which Ihay become a lien against the Member's unit enforceable by a sale of the interest hereunder. The limitation in the preceding sentence however, does not apply to any interest or late charges or other costs levied pursuant to Section 8.10 of this Declaration. 8.11.2 Creation of Lien. If there is a delinquency in the payment of any assessment, or installment on a Lot, any amounts that are delinquent, together with the late charge interest 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 Lot upon the recordation in the Office of the County Recorder of San Diego County of a notice of assessment as pro- vided in California Civil Code, Section 1367 or any successor statute or law. The notice of assessment shall not be recorded unless and until the Board or its authorized representative has delivered to the delinquent Owner or Owners, not less than fifteen (15) days before the recordation of the notice of assess- ment, a written notice of default and a demand for payment, and unless such delinquency has not been cured within said fifteen (15) day period. 8.11.3 Notice of Default; Foreclosure. Not more than one (1) year nor less than fifteen (15) days after the recording of the notice of assessment, the Board or its authorized repre- sentative can record a notice of default and can cause the Lot 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, Sections 2924, 2924b and 2924c, or through judicial foreclosure. 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 is authorized to appoint its attorney, any officer or director, or any title insurance company authorized to do busi- ness in California as trustee for purposes of conducting the sale. If- a delinquency is cured before sale, or before com- pleting a judicial foreclosure, the Board or its authorized representative, shall cause to be recorded in the office of the county recorder of San Diego County 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 installments each delin- quent Owner shall be deemed to have absolutely assigned all rent, issues and profits of his Lot to the Association and shall 23 3/24/87 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 Lot at foreclosure sale and to acquire, hold, lease, mortgage and convey the Lot and vote as an Owner of the Lot. 8.12 WAIVER OF EXEMPTIONS. Each Owner, to the extent per- mitted by law, waives, to the extent of any liens created pur- suant to this Article viii, the benefit of any homestead or exemption laws of California in effect at the time any assess- ment, or installment, becomes delinquent or any lien is imposed. 8.13 NO OFFSETS. All assessments shall be payable in the amounts specified by the particular assessment and no offsets against such amount shall be permitted for any reasons, includ- ing, without limitation, a claim that the Association is not properly exercising its duties of maintenance, operation or enforcement. 8.14 SUBORDINATION OF THE LIEN TO FIRST MORTGAGES. The lien of assessment herein shall be subordinate to the lien of any First Mortgage now or hereafter placed upon any Lot subject to assessment, and the sale or transfer of any Lot pursuant to judi- cial or nonjudicial foreclosure of a First Mortgage 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 Lot from lien rights for any assessments thereafter becoming due nor from the lien of any subsequent assessment. Where the Mortgagee of a First Mortgage or other purchaser of a Lot obtains title to the same as a result of fore- closure, such acquirer of title, his successors and assigns, shall not be liable for the share of the common expenses or assessments by the Association chargeable to such Lot which became due prior to the acquisition of title to such Lot by such acquirer, except for a share of such charges or assessments resulting from a reallocation of such charges or assessments which are made against all Lots. 8.15 PERSONAL LIABILITY OF OWNER. No Member may exempt himself from personal liability for assessments, nor any part thereof, levied by the Association, nor release the Lot owned by him from the liens and charges hereof by waiver of the use and enjoyment of the Common Area and facilities thereof, or by aban- donment of his Lot. 8.16 TRANSFER OF PROPERTY. After transfer or sale of prop- erty within in the Neighborhood, the selling Owner or Owners shall not be liable for any assessment levied on his Lot after the date of such transfer of ownership and written notice of such transfer is delivered to the Association. The selling Owner shall still be responsible for all assessments and charges levied on his/her property prior to any such transfer. 24 3/24/87 8.17 PROPERTY EXEMPT FROM ASSESSMENTS. All Common Area shall be exempt from the assessments, charges and liens created herein. ARTICLE IX PROCEDURES FOR ARCHITECTURAL APPROVAL 9.1 ARCHITECTURAL APPROVAL. The Board shall serve as the Architectural Committee. The Board may designate its architectural approval duties to any Owner or other person having experience in the construction or design of custom-designed residences. In performing its architectural duties, the Board shall consider and act upon such proposals or plans submitted to it pursuant to the terms hereof and to the extent it has been granted the authority and delegated the responsibility to review such proposals. 9.2 SCOPE. No building, fence, wall, patio, patio cover or other structure or improvement of any kind whatsoever, nor exterior painting, shall be commenced, erected, placed or altered upon any Lot until the location and the complete plans and speci- fications showing the nature, kind, shape, height and materials, including the color, have been submitted to and approved in writ- ing as to harmony of external design and location to surrounding structures and topography by the Board. In the event the Board fails to approve or disapprove the plans and specifications submitted to it by the Owner ("Plans and Specifications") or other request made of it within forty-five (45) days after all documents and information requested by the Board have been submitted to the Board, the Owner requesting said approval may submit a written notice to the Board advising the same of its failure to act. If the Board fails to approve or disapprove any such Plans and Specifications within fifteen (15) days after the receipt of said notice from such Owner, said Plans and Specifica- tions shall be deemed approved, provided that any structure or improvement to be erected or altered conforms to all other con- ditions and restrictions herein contained and is in harmony with similar Improvements erected within the Neighborhood. The grade, level or drainage characteristics of the Lot or any portion thereof shall not be altered without the prior written consent of the Board. The provisions of this Article shall not apply to the construction by Declarant of dwellings or other improvements on Lots and the Board shall not have any authority or right to approve or disapprove thereof. 9.3 DILIGENCE IN CONSTRUCTION. Upon final approval of any Plans and Specifications, the Owner shall promptly commence con- struction and diligently pursue the same to completion. Within thirty (30) days following the completion of the Residence by such Owner, the Owner thereof shall submit to the Board, land- scaping plans for its Lot. The landscaping of such Lot shall commence immediately upon the approval of the landscaping plans 25 3/24/87 by the Board and be diligently pursued to completion, pursuant to the provisions of Section 4.1.22 of this Declaration. 9.4 -FEE FOR REVIEW. The Board shall have the right to establish a fee for the review and approval of Plans and Specifications which must be submitted to the Board pursuant to the provisions of this Article. 9.5 PRELIMINARY APPROVAL. Any Owner propos'ing to con- struct a residence or other Improvements requiring the prior approval of the Board shall first apply to the Board for prelimi- nary approval by submission of preliminary drawings of the proposed Improvements. The purpose of the preliminary approval procedure is to allow an Owner proposing to make substantial Improvements an opportunity to obtain guidance concerning design considerations before expending substantial sums for plans and other exhibits required to apply for final approval. Applica- tions for preliminary approval shall be considered and disposed of as follows: 9.5.1 Time Periods for Review. Within forty-five (45) days after proper application for preliminary approval, the Board shall consider and act upon such request. The Board shall grant the approval only if the proposed Improvements, to the extent its nature and characteristics are shown by the applica- tion, would be entitled to a final approval on the basis of a full and complete application. In the event the Board fails to approve or disapprove any such preliminary plans within fifteen (15) days after all documents and information requested by the Board have been received by it, the Owner requesting said approval may submit a written notice to the Board advising the same of its failure to act. If the Board fails to approve or disapprove any such preliminary plans within fifteen (15) days after the receipt of said notice from such Owner, said pre- liminary plans shall be deemed approved. In granting or denying approval, the Board may give the applicant such directions concerning the form and substance of the final application for approval as it may deem proper or desirable for the guidance of the applicant. The giving of any preliminary approval shall not affect the right of the Board to deny approval of any final plans which are in substantial cc.formance with the approved prelimi- nary plans. 9.5.2 Effectiveness of Approval. Any preliminary approval granted by the Board shall be effective for a period of ninety (90) days from the date of the issuance thereof. During said period, any application for final approval which consists of proposed Improvements in accordance with the provisions of the preliminary approval, and is otherwise acceptable under the terms of this Declaration shall be approved by the Board. 9.5.3 Limitation. In no event shall any preliminary approval be deemed to be an approval authorizing construction of the subject Improvements. 26 3/24/87 9.6 INSPECTION AND CORRECTION OF WORK. Inspection of work and correction of defects therein shall proceed as set forth below. 9.6.1 Right of Inspection During Course of Construction. The Board or its duly authorized representative may enter onto any Lot, from time to time, during the course of construction of any Improvements or installation of any land- scaping thereon for the purpose of inspecting such construction and/or installation. If the Board determines that such construc- tion and/or installation is not being done in substantial compli- ance with the approved plans, it shall notify the Owner of the subject Lot of such non-compliance. The Board may not enter on a Lot without obtaining the prior permission of the Owner or occupant of such Lots; provided, however, that such prior pro- visions shall not be unreasonably withheld and shall be given for entry by the Board during the daylight hours within thirty (30) days after such work is completed. 9.6.2 Notice of Completion. Upon the completion of any construction or reconstruction or the alteration or refinishing of the exterior of any Improvements, or upon the completion of any other work for which approved plans are required under this Article, the Owner shall give written notice of completion thereof to the Board. 9.6.3 Inspection. Within thirty (30) days there- after the Board, or its duly authorized representative, shall inspect such improvement to determine whether it was constructed, reconstructed, altered or refinished to substantial compliance with the approved plans. If the Board finds that such con- struction, reconstruction, alteration or refinishing was not done in substantial compliance with the approved plans, it shall notify the Owner in writing of such non-compliance within such t.ilrty (30) day period, specifying particulars of non-compliance, and shall require the Owner to remedy such non-compliance. 9.6.4 Non-Compliance. If the Owner does not comply with the Board ruling within such period or within any extension of such period as the Board, in its discretion, may grant, the Board, at its option, may either remove the non-complying Improvements or remedy the non-compliance and the Owner shall reimburse the Association for all expenses incurred in connection therewith upon demand. If such expenses are not promptly repaid by the Owner to the Association, the Board shall levy an Enforcement Assessment against such Owner for reimbursement. 9.6.5 Failure to Notify. If for any reason the Board fails to notify the Owner of any non-compliance within sixty (60) days after receipt of said notice of completion from the Owner, the Improvement(s) shall be deemed to be in accordance with said approved plans. 27 3/24/87 9.6.6 Government Regulations. In the event there is any conflict between the requirements or actions of the Board and the regulations or ordinances of any governmental entity relating to the Property, the government regulation or ordinance shall control and the Board shall modify its requirements or actions to conform to the government regulation or ordinance. The applica- tion by an Owner for review and approval by the Board of any Plans and Specifications or other submittals by such Owner shall in no way be deemed to be satisfaction or compiiaiice with any applicable statute or law or governmental rule or regulation or public utility requirement. 9.7 ARCHITECTURAL GUIDELINES. The Board may, from time to time and in its sole discretion, adopt, amend and repeal, by unanimous vote, rules and regulations to be known as "Architectural Guidelines." Said rules shall interpret and implement the provisions hereof by setting forth the standards and procedures for Board review and guidelines for architectural design, placement of buildings, landscaping in the Common Areas, color schemes, exterior finishes and materials and similar features which are recommended for use in the Neighborhood; provided, however, that said rules shall not be in derogation of the minimum standards required by this Declaration. 9.8 WAIVER. The approval by the Board of any plans, drawings or specifications for any work done or proposed, or for any other matter requiring the approval of the Board under this Declaration, shall not be deemed to constitute a waiver of any right to withhold approval of any similar plan, drawing, specification or matter subsequently submitted for approval. 9.9 ESTOPPEL CERTIFICATE. Within thirty (30) days after written demand is delivered to the Board by any Owner, and upon payment to the Association of a reasonable fee (as fixed from time to time by the Association), the Board shall record an estoppel certificate, executed by any two (2) of its members, certifying (with respect to any Lot of said Owner) that as of the date thereof, either: (a) all Improvements made and other work completed by said Owner comply with this Declaration, or (b) such Improvements or work do not so comply, in which event the certificate shall also identify the non-complying Improvements or work and set forth with particularity the basis of such non- compliance. Any purchaser from the Owner, or from anyone deriving any interest in said Lot through him, shall be entitled to rely on said certificate with respect to the matters therein set forth, such matters being conclusive as between the Association, Declarant and all Owners and such persons deriving any interest through them. 9.10 LIABILITY. Neither the Board nor any member thereof shall be liable to the Association or to any Owner for any damage, loss or prejudice suffered or claimed on account of: (a) the approval or disapproval of any plans, drawings and specifications, whether or not defective; (b) the construction or 28 3/24/87 performance of any work, whether or not pursuant to approved plans, drawings, and specifications; (C) the development of any property within the Neighborhood; or (d) the execution and filing of an estoppel certificate pursuant to Section 9.9, whether or not the facts therein are correct; provided, however, that such Board member has acted in good faith on the basis of such information as may be possessed by him. Without in any way limiting the generality of the foregoing, the Board, or any member thereof, may, but is not required to, consult 'with or hear the views of the Association or any Owner with respect to any plans, drawings, specifications or any other proposal submitted to the Board. 9.11 NON-APPLICABILITY TO DECLARANT. The provisions of this Article shall not apply to any Lot owned by Declarant. 9.12 GOVERNMENT REQUIREMENTS. The application to and the review and approval by the Board of any proposals, plans or other submittals shall in no way be deemed to be satisfaction of or compliance with any building permit process or any other governmental requirements, the responsibility for which shall lie solely with the respective Owner. ARTICLE X DEVELOPMENT RIGHTS 10.1 LIMITATIONS OF RESTRICTIONS. Declarant is undertaking the work of developing Lots and other Improvements within the Neighborhood. The completion of the development work and the marketing and sale, rental and other disposition of the Lots is essential to the establishment and welfare of the Property as a first-class estate Lot residential community. In order that the work may be completed and the Neighborhood be established as a fully occupied residential community as rapidly as possible, nothing in this Declaration shall be interpreted to deny Declarant the rights set forth in this Article. 10.2 RIGHTS OF ACCESS AND COMPLETION OF CONSTRUCTION. While the Neighborhood is being developed by Declarant, Declarant, its contractors and subcontractors shall have the right to: 10.2.1 Access. Obtain reasonable access over and across the Common Area of the Neighborhood or do within any Lot owned by it whatever is reasonably necessary or advisable in connection with the completion of the Neighborhood and the marketing and maintenance of the project. 10.2.2 Construct Improvements. Erect, construct and maintain on the Common Area of the Neighborhood or within any Lot owned by it such structures or Improvements, including, but not limited to, sales offices and signs, as may be reasonably 29 3/24/87 necessary for the conduct of its business to complete the work, establish the Neighborhood as a residential community and dispose of the Neighborhood in parcels by sale, lease or otherwise. 10.2.3 Grant Easements. Establish and/or grant over and across said Common Area such easements and rights of way on, over, under or across all or any part thereof to or for the bene- fit of the State of California, the City of Carlsbad or any other political subdivision or public organization, or' any public utility entity, for the purpose of constructing, erecting, operating and maintaining facilities and Improvements thereon, therein or thereunder at that time or at any time in the future, including: (i) roads, streets, walks, driveways, parkways and park areas; (ii) poles, wires and conduits for transmission of electricity, providing telephone service and cable television service to the Neighborhood and for the necessary attachments in connection therewith; and (iii) public and private sewers, sewage disposal systems, storm water drains, land drains and pipes, water systems, sprinkling systems, water, heating and gas lines or pipes and any and all equipment in connection therewith. The Common Area shall be subject to any dedication stated in the Subdivision Map for the Neighborhood of an easement for public use for installation, maintenance and operation of facilities for public utilities over all of the Common Area. Said public utilities easement shall inure and run to all franchised utility companies and to the City of Carlsbad and shall include the right of ingress and egress over the Common Area by vehicles of the City of Carlsbad and such utility companies to properly install, maintain, repair, replace and otherwise service such utility facilities. The grant of said public utility easement shall not be interpreted to imply any obligation or responsibility of any such utility company or the City of Carlsbad for maintenance or operation of any of the Common Area or the facilities located thereon or the repair, replacement or reconstruction thereof except as occasioned by such utility companies or City of Carlsbad of the utility facilities for which they are respons- ible. Except for lawful and proper fences, structures and facilities placed upon the Common Area by utility companies, the Common Area subject to the public utility easement shall be kept open and free from buildings and structures. The City of Carlsbad furthermore is granted an easement across the Common Area and Private Streets for ingress and egress for use by emergency vehicles of the City of Carlsbad. 10.3 MARKETING RIGHTS. Subject to the limitations of this Declaration, Declarant shall have the right to: (i) make reasonable use of the Common Area and facilities for the sale of Lots; and (ii) conduct its business of disposing of Lots by sale, lease or otherwise. 30 3/24/87 ARTICLE XI INSURANCE AND CONDEMNATION 11.1 INSURANCE. 11.1.1 Fire Insurance. The Association shall keep any improvements in the Common Area and Common Maintenance Area insured against loss by fire and the risks covered bI a 'Standard All-Risk of Loss or Perils" insurance policy under an extended coverage casualty policy in the amount of the maximum insurable replacement value thereof. Insurance proceeds for improvements in the Common Area and Common Maintenance Area shall be payable to the Association. In the event of any loss, damage or destruc- tion, the Association shall cause the same to be replaced, repaired or rebuilt if it occurred in the Common Area or Common Maintenance Area in accordance with the provisions of this Declaration. 11.1.2 Liability Insurance. The Association shall procure and keep in force public liability insurance in the name of the Association and the Owners against any liability for personal injury or property damage resulting from any occurrence in or about the Common Area and Common Maintenance Area in amounts deemed reasonably necessary and prudent by the Board. 11.1.3 Fidelity Bond Insurance. The Association shall maintain a fidelity bond in an amount equal to at least the estimated maximum of funds including reserves in the custody of the Association or a management agent at any given time during the term of the fidelity bond; provided, however, that the bond shall not be less than a sum equal to three (3) months aggregate of the Regular Assessments on all Lots, plus reserve funds. The fidelity bonds shall name the Association as obligee and shall insure against loss by reason of the acts of the Board, officers and employees of the Association, and any management agent and its employees, whether or not such persons are compensated for their services. 11.1.4 Copies of Insurance. Copies of all such insurance policies (or certificates thereof showing the premiums thereon to have been paid) shall be retained by the Association and open for inspection by Owners at any reasonable time(s). All such insurance policies shall (i) provide that they shall not be cancellable by the insurer without first giving at least ten (10) days' prior notice in writing to the Association, and (ii) contain a waiver of subrogation by the insurer(s) against the Association, Board and Owners. 11.1.5 Other Insurance. The Association shall maintain other types of insurance as the Board determines to be necessary to fully protect the interests of the Owners. 31 3/24/87 11.1.6 Review of Insurance. The Board shall review the adequacy of all insurance at least once every year. The review shall include a replacement cost appraisal of all insurable Common Area improvements. The Board shall adjust the policies to provide coverage and protection that is customarily carried by prudent owners of similar property in the area in which the Neighborhood is situated. 11.2 CONDEMNATION OF COMMON AREA. If at any time all or any portion of any Common Area, or any interest therein, is taken for any public or quasi-public use, under any statute, by right of eminent domain or by private purchase in lieu of eminent domain, the entire award in condemnation, to the extent such award is not apportioned among the Owners by court judgment or by agreement between the condemning authority and each of the affected Owners in the Neighborhood, shall be divided equally among the Owners and their respective Mortgagee. Said appraisal shall be made by a qualified real estate appraiser with an M.AI certificate or the equivalent, which appraiser shall be selected by the Board. The Association shall represent the interests of all Owners in any proceeding relating to such condemnation to the extent such Owners have any interest in the Common Area; pro- vided, however, that no Owner shall be prevented from obtaining and being represented by such separate legal counsel. ARTICLE XII RIGHTS OF MORTGAGEES 12.1 CONFLICT. Notwithstanding any contrary provision con- tained elsewhere in this Declaration, or in the Bylaws, Articles or Association Rules, the provisions of this Article shall control with respect to the rights and obligations of Institutional Mortgagees specified herein. 12.2 LIABILITY FOR UNPAID ASSESSMENTS. Any Institutional Mortgagee who obtains title to a Lot pursuant to the remedies provided in the First Mortgage (except upon a voluntary convey- ance to the Institutional Mortgagee) or by foreclosure of the First Mortgage, shall take the property free of any claims for unpaid assessments or charges against the Lot which accrue prior to the acquisition of title to the Lot by the Institutional Mortgagee. 12.3 PAYMENT OF TAXES AND INSURANCE. Institutional Mort- gagees may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against any Common Area or improvements thereon and may pay overdue premiums on hazard insurance policies or secure new hazard insurance cov- erage on the lapse of a policy for such Common Area. Institu- tional Mortgagees making such payments shall be owed immediate reimbursement for such expenditures from the Association and, on demand, the Association shall execute an agreement in favor of 32 3/24/87 all Institutional Mortgagees reflecting entitlement to reimbursement. 12.4 RESERVE FUND. The Association shall maintain a reserve fund which shall be sufficient to pay for maintenance, repair and periodic replacement of Common Area improvements which the Association is obligated to maintain. This reserve fund shall be funded by Regular Assessments of Owners; provided, however, that this provision shall not be deemed o limit the power of the Association to levy any other type of assessment or charge authorized by this Declaration. 12.5 INSPECTION OF BOOKS AND RECORDS. Upon written request, any Owner, First Mortgagee or Institutional Mortgagee shall be entitled to inspect the books, records and financial statements of the Association, this Declaration, the Bylaws, the Articles and the Rules and any amendments thereto during normal business hours or under other reasonable circumstances. 12.6 MORTGAGEE PROTECTION. A breach of any of the condi- tions contained in this Declaration shall not defeat nor render invalid the lien of any Mortgage made in good faith and for value as to any Lot within the Property; provided, however, that the conditions contained in this Declaration shall be binding upon and effective against any Owner of a Lot if the Lot is acquired by foreclosure, trustee's sale or otherwise. 12.7 DISTRIBUTION OF INSURANCE AND CONDEMNATION PROCEEDS. No Owner, or any other party, shall have priority over any right of Institutional First Mortgagees of Lots 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 Neighborhood 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 institu- tional First Mortgagees naming the Mortgagees, as their interests may appear. 12.8 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 the cove- nants, conditions and restrictions shall be binding on any Owner whose title is derived through foreclosure sale, trustee's sale, or otherwise. 12.9 FORECLOSURE. If any Lot is encumbered by a First Mortgage or first deed of trust made in good faith and for value, the foreclosure 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 the Mortgage, the lien for assessments, or installments, that has accrued up to the time of foreclosure 33 3/24/87 shall be subordinate to the lien of the Mortgage, with the fore- closure-purchaser taking title to the Lot free of the lien for assessments, or installments, that has accrued up to the time of the foreclosure sale. On taking title to the Lot the fore- closure-purchaser shall only be obligated to pay assessments or other charges levied or assessed by the Association after the foreclosure-purchaser acquired title to the Lot. The subse- quently levied assessments or other charges may include pre- viously unpaid assessments provided all Owners, ihcluding the foreclosure-purchaser, and his successors and assigns are required to pay their proportionate share as provided in this section. 12.10 NON-CURABLE BREACH. Any Mortgagee who acquires title to a Lot by foreclosure or by deed in lieu of foreclosure or assignment-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 practical or feasible to cure. 12.11 LOAN TO FACILITATE. loan to facilitate the resale of closure or by a deed-in-lieu of in-lieu of foreclosure shall be faith and for value and entitled tions of this Article XII. Any Mortgage given to secure a a Lot after acquisition by fore- foreclosure or by an assignment- deemed to be a loan made in good to all of the rights and protec- 12.12 APPEARANCE AT MEETINGS. Because of its financial interest in the Neighborhood, any Mortgagee may appear (but cannot vote except under the circumstances set forth in Section 12.14) at meetings of the Members and the Board to draw attention to violations of this Declaration that have not been corrected or made the subject of remedial proceedings or assessments. 12.13 RIGHT TO FURNISH INFORMATION. Any Mortgagee can fur- nish information to the Board concerning the status of any Mortgage. 12.14 VOTING RIGHTS ON DEFAULT. In case of default by any Owner in any payment due under the terms of any institutional First Mortgage encumbering such Owner's Lot, or the promissory note secured by the Mortgage, the Mortgagee or his representa- tive, on giving written notice to such defaulting Owner or Owners, and placing of record a notice of default, is hereby granted a proxy and can exercise the voting rights of such defaulting Owner attributable to such Lot at any regular or special meeting of the Members held during such time as such default may continue. 12.15 INAPPLICABILITY OF RIGHT OF FIRST REFUSAL TO MORTGAGEE. No right of first refusal or similar restriction on the right of an Owner to sell, transfer or otherwise convey the Owner's Lot shall be granted to the Association without the writ- ten consent of any Mortgagee of the Lot. Any right of first refusal or option to purchase a unit that may be granted to the 34 3/24/87 Association (or other person, firm or entity) shall not apply to any conveyance or transfer of title to such Lot, whether volun- tary or involuntary, to a Mortgagee which acquires title to or Ownership of the unit pursuant to the remedies provided in its Mortgage or by reason of foreclosure of the Mortgage or deed or assignment in lieu of foreclosure. ARTICLE XIII AMENDMENTS 13.1 AMENDMENT BEFORE THE CLOSE OF FIRST SALE. Before the close of the first sale of a Lot 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 and any Mortgagee of record of an instrument amending or revoking the Declaration. 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 county recorder of the county in which the Neighborhood is located. 13.2 AMENDMENTS. Except as may otherwise be stated in this Declaration, after the close of the first sale of Lot in the project to a purchaser other than Declarant, this Declaration may be amended at any time and from time to time by an instrument in writing signed by fifty-one percent (51%) of the vote or written consent of each class of Members of the Association. After conversion of the Class B membership to Class A membership, the Declaration may be amended at any time provided that the vote or written consent of fifty-one percent (51%) of the members has been obtained. Such amendment shall become effective upon the recording thereof with the Office of the County Recorder of San Diego County, California. 13.3 BUSINESS AND PROFESSIONS CODE SECTION 11018.7. 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. 13.4 RELIANCE ON AMENDMENTS. Any amendments made in accordance with the terms of this Declaration shall be presumed valid by anyone relying on them in good faith. ARTICLE XIV GENERAL PROVISIONS 14.1 DURATION. The provisions of this Declaration, includ- ing the covenants, conditions and restrictions contained herein shall continue to be effective for a period of sixty (60) years from the date of recordation. Thereafter, the Declaration shall be automatically extended for successive periods of ten (10) 35 3/24/87 years until a majority vote of the Owners of all of the Lots in the Neighborhood shall determine that they shall terminate. 14.2 ENFORCEMENT AND NONWAIVER. 14.2.1 Right of Enforcement. Except as otherwise provided herein, Declarant, the Association or any Owner or Owners shall have the right to enforce by any proceedings at law or in equity any and all of the provisions of this Declaration, the Bylaws, the Articles and the Rules, including any decision made by the Association upon the Owners, the Association or upon any property in the Neighborhood. Failure by the Association, Declarant or any Owner to enforce any covenants or restrictions herein contained shall in no event be deemed a waiver of the right to do so thereafter. 14.2.2 Violation of Law. Any violation of any state, municipal or local law, ordinance or regulation pertaining to the ownership, occupation or use of any property within the Neighborhood is hereby declared to be a violation of this Declaration and subject to any or all of the enforcement procedures herein set forth. 14.2.3 Remedies Cumulative. Each remedy provided by this Declaration is cumulative and not exclusive. 14.2.4 Nonwaiver. The failure to enforce the provisions of any covenant, condition or restriction contained in this Declaration shall not constitute a waiver of any right to enforce any such provisions or any other provisions of said Declaration. 14.3 OBLIGATIONS OF OWNERS. No Owner may avoid the burdens or obligations imposed on him by this Declaration through non-use of any Common Area or the facilities located thereon or by aban- donment of his Lot. Upon the conveyance, sale, assignment or other transfer of a Lot to a new Owner, the transferring Owner shall not be liable for any assessments levied with respect to such Lot after the date of such transfer, and no person, after the termination of his status as an Owner and prior to his again becoming an Owner, shall incur any of the obligations or enjoy any of the benefits of any Owner under this Declaration. 14.4 SEVERABILITY. Should any provision in this Declaration be void or become invalid or unenforceable in law or equity by judgment or court order, the remaining provisions hereof shall be and remain in full force and effect. 14.5 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 Declaration. 14.6 VIOLATIONS AS NUISANCE. Every act or omission in vio- lation of the provisions of this Declaration shall constitute a 36 3/24/87 nuisance and, in addition to all other remedies herein set forth, may be abated or enjoined by any Owner, any Member of the Board, the manager, or the Association. 14.7 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 his Lot on the basis of race, sex, color or creed. 14.8 ACCESS TO BOOKS. Any Owner may, at any reasonable time and upon reasonable notice to the Board or manager at his own expense, cause an audit or inspection to be made of the books and financial records of the Association. 14.9 LIBERAL CONSTRUCTION. The provisions of this Declaration shall be liberally construed to effectuate its pur- pose. Failure to enforce any provision hereof shall not consti- tute a waiver of the right to enforce said provision thereafter. 14.10 NOTIFICATION OF SALE OF LOT. Concurrently with the consummation of the sale of any Lot under circumstances whereby the transferee becomes an Owner thereof, or within five (5) busi- ness days thereafter, the transferee 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 common address of the Lot purchased by the transferee, the transferee'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 permitted 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. Mailing addresses may be changed at any time upon written notification to the Board. Notices shall be deemed received forty-eight (48) hours after mailing if mailed to the transferee, or to his transferor if the Board has received no notice of transfer as above provided, by certified mail, return receipt requested, at the mailing address 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 Lot over the age of twelve (12) years. 14.11 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. 14.12 EXHIBITS. All exhibits referred to are attached to this Declaration and incorporated by reference. 14.13 EASEMENTS RESERVED AND GRANTED. Any easements refer- red 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 Lot. 37 3/24/87 14.14 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. IN WITNESS WHEREOF, the undersigned, being Declarant herein, has set its hand and seal as of the date first hereinabove written. DECLARANT: ALTON L. RUDEN, LORNA RUDEN and DIANE LEE VILLESCEZ Alton L. Ruden Lorna Ruden Diane Lee Villescez R1ONTS100 38 3/24/87 TRANSMITTAL TO: City of Carlsbad, Planning Departrnnt ATTN: Mike Grimm DATE: 2/01/90 RE: Canyon Place,(C. T. 85-13 FROM: Michael Galey *** * * * *********** ******* * ********** *** ** ** Enclosed please find a Landscaping Plan prepared by James Iverson for the crib wall installed on Canyon Place. As per our discussion earlier, we are able to provide plantings along the top of the wall which will hang over and soften the wall's appearance. If this meets with your approval, please release the building permits on Lots 1 and 2. . . Applicant/Alton Ruden 2733 Mesa Drive Oceanside, CA 92054 757-3112 TLOG * Cr 9S'1,3/ FL)-Q - 8 3 S CITY OF ( RLSBAD - 1200 ELM AVENUE • CARLSBAD, 3AEIFONIA 92008 438-5551 RECEIVED FROM c •?!\ -C'\€ \/TE ADDRESS A/C. NO. DESCRIPTION AMOUNT 53o _ ,L1A Os;L 14 5 741415167~F 47745 OTAL E4 1_f I PLANNING APPLICATION CHECKLIST ITEM REQUIRED ' ENCLOSED NOT ENCLOSED (WHY) intative Nap A Site Plan B Landscape Plan Bldg. Elevations 8½ Site Plan -- 8½ Ication EI VX G 7/' P7 Disclosure Strrt 7 Property Owners 300' Mkp 7 School Letter 7 7777 L PTR Sewer Colored Exhibit S of Aee IN E CE I PT NO. '? DATE' __________________ I 3/1 7gs- CASE NO.: C7' S- /2'/4/(7 DATE RECEIVED: APPLICANT: REQUEST: .2 zc-k ZIIONMEL EXEMPT OR EXCEPTED: Posted:_________ Filed: NEGATIVE DELRATI: Prior Compliance: Filed: Posted: - rj - I - Published: f- - Notice of Determination:_______ ENVIMEN'I2L IMPACT REPORT:___________________ Notice of Notice of Notice of Preparation: Determination:__________ PLANNING 4MISSION 1. Date of Hearing: 2. Publication:______________________ 3. Notice to Property Owners: 4. Resolution No. I74 Date: 9z2h (Continued to:__________________________ 5. Appeal:__________________________________ IRVINE CITY COUNCIL 1. Date of Hearing:iC) / 2. Notices to City Clerk: 3. Agenda Bill:__________________________ 4. Resolution No. Date: ACTION: 5. Ordinance No. Staff Report to Applicant: Resolution to Applicant:______________________