HomeMy WebLinkAboutCT 85-13; ALTON RUDEN; Tentative Map (CT)A MOPPLICATION
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L)P
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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
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M 5 ot-i eaZ ôt rsWi • 2- prcejpc
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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
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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.
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/ CL/TED THE 5AME.WITNESS MY 14ANOAP-LD OPFLC(AZ. SE". AD AC
/UFFTIAL SEAL
;i" Nor ..LiFoRN:AOTARYPU8L1CIN•AND FOR SAID -'COUNTY ANaSTATE
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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(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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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)
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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
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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:______________________