HomeMy WebLinkAboutCT 85-35; Aviara|Pacific Rim Country Club & Resort; Tentative Map (CT)LOS ANGCLCS OFFICC
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SHEPPARD, MULLIN. RICHTER & HAMPTON
A MfVTNCnSMIP IMCLUOINO VMOrCSSlONAl. COM^MATIONS
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May 1, 1989 OUR FILE NUMBER
CRB-35987
BY PERSONAL DELIVERY
Ronald R. Ball, Esq.
Assistant City Attorney
City of Carlsbad
1200 Elm Avenue
Carlsbad, California 92008
m BUS
Re: Desiltation Basin Maintenance Agreements
Dear Ron:
We are delivering to you along with this letter revised
drafts of the Desiltation Basin Maintenance Agreement which we
discussed at our meeting with you, Lloyd Hubbs, and Dan Clark on
April 10.
Pursuant to our discussion that day, we have separated
the original form of Agreement into three separate docximents
dealing with (i) the golf course drainage system and its three
desiltation basins, (ii) the desiltation basin in Planning
Area 5, and (iii) the desiltation basin in Planning Area 28.
These three agreements are derived from the same form, but each
has been tailored to address any circumstances unique to the
particular basin or area in question. For your convenience, we
have enclosed clean copies of each of the three agreements, as
well as copies which have been marked to reflect where changes
were made to the form which we discussed at our April 10 meeting.
I believe that most of the changes will be self-
explanatory and consistent with our discussions at our recent
meeting. As noted above, the first agreement pertains to the
golf course's three desiltation basins and drainage system. As
you will recall, condition 65 of Planning Commission Resolution
No. 2595 specifically provides that the developer and the City
must enter into an agreement regarding the maintenance of
drainage across the golf course. Rather than creating two
separate agreements for the golf course desiltation basins and
/
SHEPPARD, MULLIN, RICHTER & HAMPTON
Ronald R. Ball, Esq.
Assistant City Attorney
City of Carlsbad
May 1, 1989
Page 2
for drainage across the golf course, we decided it was preferable
to address all of the issues relating to the golf course in one
agreement.
The second agreement (for the desiltation basin located
in Planning Area No. 5), unlike the other two agreements, does
not provide for a perpetual maintenance obligation; instead, the
agreement expires in July 1991. We anticipate that within the
next two years, this basin shall be conveyed to Mr. Murphy or
another third party, and the developer shall have no maintenance
obligation thereafter.
The third agreement (for the desiltation basin located
in Planning Area No. 28) contains a provision recognizing that
the current location of this basin may be temporary and that the
agreement may need to be amended to reflect a change in its
location.
With regard to the City's security for Hillman's
performance under the agreements, I would like to clarify our
position. We have prepared these docximents to reflect that all
of the desiltation basin maintenance agreements will be secured
by one bond in the amount of $40,000.00. This maintenance bond
(Bond No. 8112-95-64) was posted by Pacific Rim Land Associates
Limited Partnership in connection with the execution and delivery
to the City of that certain Drainage Basin Maintenance Agreement
dated July 28, 1988. We feel that this bond provides adequate
security to the City for the developer's obligations under these
agreements. The amount of this bond is well in excess of the
estimated annual cost of maintaining all of these desiltation
basins, which has been projected at $12,000 per year.
Furthermore, condition 63 of Planning Commission
Resolution No. 2595 specifically provides for the posting of a
maintenance bond as security for the desiltation basin
maintenance agreement. The tentative map conditions do not call
for any cash deposits or liens upon land to secure the
developer's obligations with regard to drainage. We therefore
know of no justification for the City's current position that
this security, which was posted at the City's request last year,
is no longer adequate and must be replaced with a cash security
deposit secured upon default by a lien against the land.
After you have had the opportunity to review the
enclosed agreements, please contact me or Catherine Potter of my
office to discuss any questions or comments you may have. We are
SHEPPARD, MULLIN, RICHTER & HAMPTON
Ronald R. Ball, Esq.
Assistant City Attorney
City of Carlsbad
May 1, 1989
Page 3
hopeful that we will be in a position to finalize these
agreements soon.
Vei^ truly yours ^
ulie S. Mebane
for SHEPPARD, MULLIN, RICHTER & HAMPTON
JSM/pp
L013105S.DB6
Enclosure
cc: Mr. D. L. Clemens, (w/redline)
Mr. Paul J. Klukas, (w/enclosures)
Mr. Antonio M. German, Jr., (w/redline)
Catherine L. Potter, Esq.
Christopher B. Neils, Esq.
3
ML:kew 06/06/89 ML971B.OOOl.0.0
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Loeb and Loeb
1000 Wilshire Boulevard, 18th Floor
Los Angeles, California 90017
Attention: Michael Langs, Esq.
Memo to Title Company:
Upon recordation hereof a
conformed copy of this
document, stamped by the
San Diego County Recorder
shall |5e returned to:
The City of Carlsbad
2075 Las Palmas Drive
Carlsbad, CA 92008
Attn: Planning Department
Planning Director
MASTER DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
AVIARA
Carlsbad, California
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MASTER DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
AVIARA
TABLE OF CONTENTS
Page
RECITALS 1
1. DEFINITIONS 3
1.00 Access and Utility Plats 4
1.01 Annexation 4
1.02 Apartment Area 4
1.03 Apartment Building 4
1.04 Apartment Unit or Apartment 4
1.05 approve, approval or consent 4
1.06 Architectural Control Committee or
Architectural Review Committee 4
1.07 Articles of Incorporation or articles 4
1.08 Assessment 4
1.09 Assessment Roll 5
1.10 Board, Board of Directors or
Community Board of Directors 5
1.11 Builder, Merchant Builder, Guest Builder
or Developer 5
1.12 Bylaws 5
1.12.1 City 5
1.13 Commercial Area 5
1.14 Common Expense, Community Expense
or Common Area Expense 5
1.15 Common Funds or Community Funds 5
1.15.1 Common Interest Subdivision or common
interest subdivisions 6
1.16 Community Common Area, Master
Common Area or. Common Area 6
1.17 Condominium 6
1.17.1 Condominium Project 7
1.18 Declarant 6
1.19 Dwelling or Dwelling Unit 7
1.19.1 Emergency Repairs 7
1.20 Final Map 7
1.21 First Mortgagee or first mortgagee 7
1.22 Golf Course 7
1.23 Golf Course Owner 8
(i)
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Page
1.24 Intentionally Omitted 8
1.25 Individual Project 8
1.26 Individual Project Assessments 8
1.27 Individual Project Association,
Individual Homeowners Association
or Sub-Association 8
1.28 Individual Project Common Area
or common area 8
1.29 Individual Project Declaration 8
1.30 Intentionally Omitted 9
1.31 Intentionally Omitted 9
1.32 Institutional Mortgagee 9
1.33 Lot 9
1.34 Intentionally Omitted 9
1.35 Managing Agent 9
1.36 Master Association, Community
Association or Association 9
1.37 Intentionally Omitted 10
1.38 Master Declaration or Declaration 10
1.38.1 Master Maintenance Plan 10
1.38.2 Master Plan 11
1.38.3 Merchants Association 11
1.39 Mortgage 11
1.40 Mortgagee 11
1.41 Non-Residential Areas or
Non-Residential Lots 11
1.41.1 Non-Residential Contribution 11
1.42 Overall Property 11
1.43 Owner or "Member" 11
1.44 Ownership Interest 12
1.45 Person or person 12
1.46 Phase or phase 12
1.46.1 Phase 1 or DRE Phase 1 12
1.46.2 Phase or phase 12
1.47 Private Street 12
1.48 Project, or Aviara Project 13
1.48.1 Project Entries or Entry Treatments 13
1.49 Public Street 13
1.49.1 Recreational Vehicle Site, RV Site,
or RV Area 13
1.50 Regular Assessment 14
1.51 Regulated Improvement 14
1.52 Residential Acreage Lot 14
1.53 Resort Hotel or Hotel 14
1.54 Resort Hotel Owner or Hotel Owner 14
1.54.1 Site Development Plan 14
1.55 Special Assessment • 14
1.56 Sports Complex or Sports Center 14
1.57 Supplemental Declaration 14
(ii)
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Paae
1.58 Trail System 15
1.59 Unit 15
1.59.1 View Corridors or View Preservation Areas.. 15
1.60 Water Conservation Improvements 15
MASTER ASSOCIATION MEMBERSHIP AND VOTING RIGHTS... 15
2.01 Membership 15
2.02 Transfer 16
2.03 Voting Rights 16
A. Class A Votes 16
B. Class B Votes 18
2.04 Conversion of Votes to One Class 18
3. GENERAL USE RESTRICTIONS 20
3.01 Antenna 20
3.01.1 Cable TV 20
3.02 Children and Guests 20
3.03 Fires 20
3.04 Grading 20
3.04.1 Landscaping Removal 21
3.05 No Temporary Structures 21
3.06 Nuisance 21
3.07 Oil and Mineral Operations 21
3.08 Pets 21
3.08.1 Private Streets 22
3.08.2 Private Sewer Easements 22
3.08.3 Storm Drain Easements 22
3.09 Power Tools 22
3.10 Residential 23
3.10.1 Roof Appurtenances 23
3.11 Rules and Regulations 23
3.12 Signs 23
3.12.1 Trash Receptable Areas 23
3.13 Unsightly Items 23
3.14 Vehicles 23
3.14.1 Protection of View Corridors 24
3.15 Easements and Exemptions for Declarant 24
3.16 Easements and Exceptions for Builders 25
4. MANAGEMENT AND CONTROL OF COMMUNITY COMMON AREA... 25
4.01 Management Body 25
4.02 Initial Board of Directors 25
(iii)
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Page
4.03 Transfer of Management and Control to
the Master Association 26
4.04 Powers and Duties Generally 26
4.05 Use of Common Funds 26
(a) Utilities 27
(b) Community Common Area
Maintenance, Repair and Operations.. 27
(c) Supplies; Tools 27
(d) Insurance and Indemnification 27
(e) Miscellaneous Services 28
(f) Accounting and Legal 28
(g) Fidelity Bonds 28
(h) Taxes; Assessments; License Fees 28
(i) Budgets and Financial Statements 28
(j) Ownership Interests Acquired by
the Master Association 31
(k) Managing Agent; Contract Limitations.. 31
4.06 Delegation of Powers 32
4.07 Financial Records and Accounts;
Inspection 32
4.08 Limitation of Liability 33
4.09 Indemnification 33
4.10 Limited Powers of Attorney to Board
of Directors 33
5. ASSESSMENTS; COMMON FUNDS 34
5.01 Regular Assessments 34
(a) Regular Assessments 34
(b) Assessment Roll 36
(c) Failure to Make Estimate 36
(d) Commencement of Regular Assessments... 36
5.02 Special Assessments 37
(a) Damage to Master Common Area 38
(b) Other Special Assessments
Authorized by this Declaration 38
(c) Limitations on Special Assessments.... 38
(d) Notice of Special Assessments; Time
of Payment 38
5.03 Delinquent Assessments 39
5.04 Liability for Assessments 39
5.05 No Offsets 39
6. MAINTENANCE OF COMMON FUNDS; ENFORCEMENT
OF ASSESSMENT LIENS 39
6.01 Deposit; Bank Account 39
(iv)
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Page
6.02 Commingling; Separate Reserve Accounts 40
6.03 Enforcement of Liens 41
6.04 Enforcement by Suit 42
6.05 Additional Remedies 43
6.06 Waiver of Homestead Exemption 43
7. RESPONSIBILITY FOR MAINTENANCE AND REPAIR 43
7.01 Maintenance and Repair by Master
Association 43
7.02 Maintenance and Repair of Individual
Projects 45
7.03 Maintenance District 45
7.04 Owner Failure to Maintain 45
7.05 Private Street Maintenance to City
Standards 47
7.06 Storm Drain Maintenance 47
7.07 Sewer Facilities Maintenance 47
7.08 Emergency Repairs 47
8. ARCHITECTURAL CONTROL COMMITTEE 48
8.01 Organization and Membership 48
8.02 Resignation; Vacancies; Term of Office 49
8.03 Duties; Committee Rules; Approvals 49
8.04 Meetings of the Committee 50
8.05 No Waiver 51
8.06 Implementation of Approved Regulated
Improvements 51
8.07 Inspection of Work 51
8.08 Owner's Failure to Complete Work 52
8.09 Estoppel Certificates; Mortgages 53
8.10 Preliminary Approvals 53
8.11 Compensation of Members of Committee 53
8.12 Non-Liability of Committee Members 54
8.13 Builder Compliance Procedure 54
9. PROTECTION OF LENDERS 54
9.01 Notice to Association 54
9.02 Notification of Mortgagees 54
9.03 Subordination of Assessment Liens 55
9.04 Prior Approvals 55
9.05 Books, Records; Annual Statement 56
9.06 Reserves for Replacements 56
9.07 Taxes, Assessments and Charges 56
(V)
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Page
9.08 No Priority Over Mortgages 56
9.09 Professional Management 57
9.10 Amendments to Declaration 57
9.11 Effect of Breach 57
9.12 Notice of Condemnation, Damage and
Meetings 57
9.13 Conflict 57
9.14 Extension of Lender Protections to
Other Mortgagees 58
10. CAPITAL IMPROVEMENTS TO COMMUNITY COMMON AREA 58
11. ADDITIONAL EASEMENTS, RESERVATIONS AND COVENANTS.. 59
11.01 Utility Easements 59
11.02 Cable Television or Antenna System 61
11.03 Reservation of Oil and Mineral Rights 61
11.04 Community Common Area Easements 61
11.05 Drainage Easements 62
11.06 Easements for Completion, Marketing
and Sale 62
11.07 Establislriment of Easements 63
11.08 Easement for the Benefit of Golf Course.... 63
11.09 Assessment District Financing 64
12. INSURANCE 64
12.01 Types of Insurance 64
(A) Property 64
(B) Public Liability 66
(C) Workmen's Compensation 67
12.02 Insurance on Individual Projects
or Separate Ownership Interests 67
12.03 Additional Insurance and Bonds 68
12.04 Choice of Contractor 68
12.05 Choice of Insurance Company 68
12.06 Expenses of Collecting Insurance
Proceeds 68
12.07 Insurance Requirements for Individual
Projects and Ownership Units Within
Individual Projects 68
(vi)
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Page
13. DAMAGE OR DESTRUCTION TO COMMON AREA;
REBUILDING 69
13.01 Determination and Collection of
Insurance; Bids; Commencement
of Repair 69
13.02 Insurance Proceeds Sufficient to Rebuild... 70
13.03 Insurance Proceeds Within Eighty-Five
Percent of Being Sufficient to Rebuild 70
13.04 Insurance Proceeds Less Than Eighty-Five
Percent of an Amount Needed to Rebuild 71
13.05 Duties of Board During Reconstruction 71
13.06 Determination Not to Rebuild 71
14. EMINENT DOMAIN 72
15. REMEDIES FOR BREACH OR DEFAULT 72
15.01 Remedy at Law Inadequate 72
15.02 Costs and Attorneys' Fees 73
15.03 Cumulative Remedies 73
15.04 Failure Not a Waiver 73
15.05 Suspension of Voting Rights 73
15.06 Disputes, Determination by the Board 74
15.07 Enforcement of Bonded Obligations 75
15.08 Enforcement by City 76
15.09 Indemnification 77
16. AMENDMENTS 78
16.01 Procedure 78
16.02 Amendment by Declarant 79
16.03 Amendment Affecting Obligation to
Maintain Common Area 79
16.04 Amendment to Eliminate Easements 79
17. NOTICES 80
18. TERM 81
(vii)
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Pase
19. ANNEXATION OF ADDITIONAL PROPERTY 8 2
19.01 Annexation of Additional Property 82
19.02 Annexation Pursuant to Approval 8 2
19.03 Supplementary Declaration 83
19.04 Community Cominon Area 8 3
19.05 De-annexation 83
20. GENERAL PROVISIONS; INTERPRETATION 84
SIGNATURE PAGE 85
ACKNOWLEDGEMENT 8 6
EXHIBITS
Exhibit A Legal Description
of Overall Property
Exhibit B - Description and Map of
Planning Areas
Exhibit C - Planning Areas 1 Through 16,
Inclusive (Sometimes Referred to
as the "Mapped Area" or "Phase I")
Exhibit D - Legal Description of Overall
Property Subject to Annexation
Exhibit E DRE Phase 1
Exhibit F
Exhibit F-1
Master Maintenance Plan
Master Maintenance Plan - Poinsettia Lane Slopes
Exhibit G - Trail System
Exhibit H Schedule of Acreage of Lots
Prior to Close of Escrow for
Sale of Lots Pursuant to a
Public Report
Exhibit I -Builder Architectural
Control Approval
(viii)
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MASTER DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
AVIARA
This Master Declaration of Covenants, Conditions
and Restrictions for Aviara, formerly known as the Pacific
Rim Country Club and Resort (the "Master Declaration" or
"Declaration") executed as of this day of , 1989,
by Aviara Land Associates Limited Partnership ("Declarant")
is made with reference to the following:
RECITALS
A. Declarant is the fee owner of all that certain
real property (the "Overall Property") located within Zone 19
of the City of Carlsbad, California commonly referred to as
"Aviara" and more particularly described on Exhibit "A"
attached hereto.
B. Declarant proposes to cause the Overall Prop-
erty to be developed in phases in conformance with, among
other land use approvals, that certain Local Facilities Man-
agement Plan for Zone 19 (the "LFMP") which was approved by
the City of Carlsbad (the "City") pursuant to the Carlsbad
Growth Management Program, Title 21, Chapter 21.90 of the
Carlsbad Municipal Code, and that certain Master Plan for
Aviara (the "Master Plan") which was approved by the City
Planning Commission on November 4, 1987 (under the former
name for the Project) pursuant to Planning Commission Reso-
lution 2594. Copies of the LFMP and the Master Plan are on
file with the City Planning Department and when reference
thereto is made in this Declaration or the context hereof
requires, the LFMP and the Master Plan shall be deemed
incorporated herein.
C. Pursuant to the Master Plan, thirty-two (32)
separate Planning Areas ("Planning Areas") have been estab-
lished within the Overall Property. Development within each
Planning Area shall be in conformance with the Development
Standards ("Development Standards") for such Planning Area as
set forth in the Master Plan. A description and map of the
Planning Areas is attached hereto as Exhibit "B".
D. By this Declaration, Declarant intends, among
other matters, to establish a common plan to coordinate and
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integrate the phased development of the Overall Property and
to establish a master community association (the "Master
Association") to own, manage and maintain certain private
streets, medians, enriched paving and parkway areas, land-
scaping, entry features, open space. Trail System, irrigation
systems, slopes, RV storage and other improvements (collec-
tively hereinafter defined as the "Community Common Area"),
now or hereafter located within the various Planning Areas
subject to the jurisdiction of the Master Association for the
mutual benefit of the Master Association, its Members, and
each Individual Project (as hereinafter defined) developed
within the various Planning Areas; the mutual benefit of the
Declarant and the Owners of such Individual Projects and all
Units, Lots, Dwellings, Apartments and improvements now or
hereafter located within such Individual Projects; and for
the mutual benefit of th'e Merchant Association and each Indi-
vidual Homeowner Association created, as required, for any
such Individual Project which is developed as a planned unit
development, condominium project or other common interest
subdivision, as defined in Section 11004.5 of the California
Business and Professions Code.
E. In order to implement development within the
Overall Property, Declarant has recorded or intends to record
final subdivision maps ("Final Maps") over those portions of
the Overall Property located within Planning Areas 1 through
16, inclusive, so as to create within said Planning Areas the
Lots described on Exhibit "C" attached hereto.
F. In order to further implement the development.
Declarant intends to sell Lots so created to Builders who
wish to develop Individual Projects within said Planning
Areas in conformance with the LFMP, the Development Standards
set forth in the Master Plan, this Master Declaration, and in
accordance with such other conditions as may be imposed by
the City or other governmental agencies in connection with
obtaining additional permits and site specific development
approvals for such Individual Projects.
NOW, THEREFORE, in order to provide for, among
other matters, the phased development of the Aviara Project;
the creation of the Master Association to own, operate,
manage and maintain the Community Common Area within the
Project; and to reserve in the Declarant the authority to
annex to Phase 1 of the Project (as hereinafter defined) all
or any portion of the remaining Overall Property, DECLARANT
DOES HEREBY ESTABLISH AND DECLARE that Phase 1 of the Project
and each of the Planning Areas, Individual Projects, Units,
Lots, Buildings, Dwellings, and improvements now or hereafter
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located therein, shall be owned, developed, sold, leased,
encumbered, improved, landscaped, maintained, repaired,
rented, occupied and used subject to the covenants, condi-
tions, restrictions, easements, liens, reservations and other
provisions set forth in this Declaration, as the same may be
amended from time to time, (collectively hereinafter referred
to as "covenants"), all of which are hereby imposed upon
Phase 1 of the Project and each Planning Area, Individual
Project, Unit, Lot, Dwelling and improvement, now or here-
after located within Phase 1, as mutual and beneficial
covenants which are intended as and are hereby declared to be
covenants running with the land and equitable servitudes upon
the land in favor of and for the mutual use and benefit of
each Planning Area, Individual Project, Unit, Lot, Dwelling
and improvement now or hereafter located within Phase 1, and
for the mutual benefit of the Declarant, all subsequent
Owners, Mortgagees, tenants and users of all portions of
Phase 1 and their respective heirs, successors, representa-
tives and assigns, in order to implement the general and
common plan described herein, and in the Master Plan, for the
phased development of the Overall Property. Said covenants
shall be binding upon Phase 1 and upon each Planning Area,
Individual Project, Unit, Lot, Building, Dwelling and
improvement now or hereafter located therein, and shall inure
to the benefit of and be a burden upon all of such property
and each portion thereof and each of the Owners, tenants.
Mortgagees, and other persons holding, having or acquiring an
interest therein. Upon recordation of this Declaration,
every deed, lease, mortgage, assignment or other document of
conveyance, sale, encumbrance, assignment, lease, sublease or
other transfer of all or any portion of the Overall Property
or any interest therein, shall contain or incorporate by
reference all of the provisions of this Declaration, as the
same may be amended from time to time, and if not expressly
set forth or referred to in any document or documents which
evidence such transfer .said document or documents shall be
deemed to contain or incorporate by reference all of the
provisions of this Declaration, as the same may be amended
from time to time.
ARTICLE 1
DEFINITIONS
Unless the context otherwise specifies or requires, the
following words or phrases when used in this Master
Declaration shall have the following meanings:
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1.00 "Access and Utility Plats" shall mean those certain
maps and drawings prepared and provided by Declarant to
Merchant Builders in connection with each such Builders
purchase of a specific Planning Area to delineate, describe
and define the location, alignment, obligations and responsi-
bilities to construct, maintain and/or set back from sewer,
water, storm drain, underground utilities, walls, fencing,
slopes, easements and other improvements and features within
the Planning Area involved so as to further implement the
Master Plan and the Master Maintenance Plan. The Access and
Utility Plats as the same are prepared and amended from time
to time are by this reference made a part the Master Mainten-
ance Plan.
1.01 "Annexation" shall mean and refer to the process
described in Article 19 of this Master Declaration by which
the balance of the Overall Property described in Exhibit "D"
attached hereto (which is not included in DRE Phase 1 described
on Exhibit "E" attached hereto) may be annexed to and made a
part of the Aviara Project and subject to the of the Master
Association.
1.02 "Apartment Area" shall mean and refer to any real
property within a Planning Area which is approved for
development of Apartment Buildings.
1.03 "Apartment Building" or "Apartment Project" shall
mean and refer to buildings containing two or more Apartment
Units constructed within an Apartment Area and operated as an
apartment project.
1.04 "Apartment Unit" or "Apartment" shall mean and
refer to a residential apartment in an Apartment Building.
1.05 "approve", "approval" or "consent" shall mean
securing the prior written approval, vote or consent before
doing that for which such approval or consent is required.
1.06 "Architectural Control Committee", "Architectural
Review Committee" or "Committee" shall mean the committee
established pursuant to Article 8 of this Master Declaration
and sometimes referred to in the Master Plan as the "Aviara
Design Review Board".
1.07 "Articles of Incorporation" or "articles" shall
mean the Articles of Incorporation of the Master Association
as the same may from time to time be amended.
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1.08 "Assessment" shall mean a charge levied or assessed
directly against an Owner and such Owner's Lot, Unit or other
Ownership Interest in accordance with the provisions of this
Master Declaration which Assessment (whether "Regular" or
"Special") shall become the personal obligation of such Owner
when such Assessment is entered upon the Assessment Roll and
a bill or other notice of such Assessment has been sent to
the Owner so assessed.
1.09 "Assessment Roll" shall mean the books and records
maintained by the Master Association or its duly authorized
representatives in accordance with the provisions of Section
5.01(b) hereof.
1.10 "Board", "Board of Directors" or "Community Board
of Directors" may be used interchangeably herein and shall
mean the Board of Directors of the Master Association as the
same may from time to time be constituted.
1.11 "Builder", "Merchant Builder", "Guest Builder''* or
"Developer" may be used interchangeably and shall mean and
refer to any Person who purchases from Declarant all or any
portion of a Planning Area for the purpose of developing
thereon an Individual Project including, without limitation,
any Person who purchases the Planning Areas to be developed
with the Hotel, the Sports Center and the Golf Course.
1.12 "Bylaws" shall mean the Bylaws of the Master Asso-
ciation as the same may from time to time be amended.
1.12.1 "City" shall mean the City of Carlsbad, California.
1.13 "Commercial Area" shall mean and refer to Planning
Area 23 designated for commercial development as permitted
under the Master Plan.
1.14 "Common Expense", "Community Expense" or "Common
Area Expense" may be used interchangeably and shall mean and
refer to any and all of the actual and/or estimated expenses,
charges and/or costs for the maintenance, repair, replace-
ments, reconstruction, landscaping, insurance and such other
uses of Common Funds as are authorized by Section 4.05 of
this Master Declaration including, without limitation, the
payment of taxes upon the Community Common Area and amounts
reasonably necessary for reserves for the maintenance and
repair thereof.
1.15 "Common Funds" or "Community Funds" may be used
interchangeably and shall mean all monies collected or
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received by and/or due and payable to the Master Association
or its duly authorized representatives for use in the
maintenance and repair of the Master Common Area including,
but not limited to, the proceeds from insurance carried or
obtained by the Master Association which are payable to or
received by the Master Association. Common Funds collected,
held or received by the Master Association or its duly auth-
orized representatives, including, but not limited to, any
funds held as reserves, shall not for any purpose be deemed
funds or income of the Master Association but only funds in
the custody of the Master Association and its duly authorized
representatives, subject to the use thereof for Common
Expenses as provided in this Master Declaration.
1.15.1 "Common Interest Subdivisions" or "common interest
subdivisions" shall have the meaning set forth in Section
11004.5 of the California Business and Professions Code and
Section 1351(c) of the California Civil Code.
1.16 "Community Common Area", "Master Common Area" or
"Common Area" may be used interchangeably and shall mean and
refer to all real property and the improvements situated
thereon owned by, leased to or under an easement in favor of
the Master Association including, without limitation. Private
Streets (other than any gated Private Street), private util-
ities, private parks, open space. Trail System, irrigation
systems, any community cable, master antenna or satellite
system, the RV Site, slopes owned by the Master Association,
and Project Entries. Declarant shall convey the Community
Common Area located in Phase 1 to the Master Association free
of all liens and encumbrances except (a) current real prop-
erty taxes (which shall be prorated as of the date of con-
veyance), (b) those now or hereafter created by the
Mello-Roos Community Facilities Act of 1982 formed pursuant
to Government Code Section 53311, et seq., or any successor
statute, (c) facilities benefit assessment districts and
other assessment districts for purposes of maintenance or
funding of any onsite or offsite facilities or improvements,
including, but not limited to, public facilities and project
amenities, (d) any nonmonetary title exceptions of record,
and (e) the covenants, conditions, reservations and
restrictions contained in this Declaration.
1.17 "Condominium" shall mean a condominium estate
as defined in California Civil Code Sections 783 and 1351(f)
which is located within an Individual Project or any Phase
thereof.
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1.17.1 "Condominium Project" shall mean an Individual
Project which is a common interest subdivision consisting of
condominiums.
1.18 "Declarant" shall mean and refer to Aviara Land
Associates Limited Partnership and shall include those
successors and assigns of Declarant who acquire or hold title
to all or any part of the Overall Property for purposes of
development of the Aviara Community, and are expressly named
as a successor declarant in a document executed by Aviara
Land Associates Limited Partnership or by a successor
declarant, and recorded with the County Recorder for San
Diego County assigning the rights and duties of declarant to
such successor declarant, in which such successor declarant
accepts and assumes the assignment of such rights and duties.
A successor declarant sKall also be deemed to include a
Mortgagee under a Mortgage securing an obligation from a
then-existing declarant encumbering all or any portion of the
Overall Property, which beneficiary has acquired any such
property by foreclosure, power of sale or deed in lieu of
such foreclosure or sale.
1.19 "Dwelling" or "Dwelling Unit" shall mean and refer
to a residential dwelling unit, constructed on a Lot together
with any garages and other appurtenant structures, and in the
case of a Condominium, shall mean all elements of a "unit"
conveyed to an Owner as a part of his or her condominium
estate as such "unit" is defined on the condominium plan or
subdivision map recorded in connection with the Condominium
Project within which such "unit" is located.
1.19.1 "Emergency Repairs" or "emergency repairs" shall
mean repairs undertaken by the Master Association, or any
Sub-Association, pursuant to Section 7.08 by the Owner of a
Dwelling Unit which if not made would pose a significant and
immediate risk to the health or safety of persons within the
Project.
1.20 "Final Map" shall mean a final subdivision map or a
parcel map recorded over any portion of the Overall Property
pursuant to the California Subdivision Map Act.
1.21 "First Mortgagee" or "first Mortgagee" shall mean
any Person holding any Mortgage encumbering a Lot, Unit or
other Ownership Interest within the Project which is a first
lien on such Lot, Unit or other Ownership Interest.
1.22 "Golf Course" shall mean and refer to the real
property within Planning Area 1 together with the clubhouse
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and other improvements now or hereafter located thereon which
are maintained and operated as a golf course, golf club,
driving range and related facilities.
1.23 "Golf Course Owner" shall mean and refer to the fee
owner of the Golf Course and, unless the context otherwise
requires, shall also refer to any person operating or
managing the Golf Course, if other than such Owner.
1.24 Intentionally Omitted.
1.25 "Individual Project" shall mean any Condominium
Project or other common interest subdivision on all or any
portion of a Planning Area and shall also mean the Golf
Course, the Resort Hotel, the Sports Center and any restaur-
ant and any commercial development on a Non-Residential Lot
and any Apartment Building. Although not subject to the
jurisdiction of a separate Sub-Association Planning Area 3
and 14 shall, where the context requires, be deemed to be
an Individual Project.
1.26 "Individual Project Assessments" shall mean and
refer to assessments determined pursuant to any Individual
Project Declaration which are levied exclusively on Lots or
Units contained in an Individual Project.
1.27 "Individual Project Association" "Individual Home-
owners Association" or "Sub-Association" may be used inter-
changeably and shall mean and refer to (i) the non-profit
mutual benefit corporation formed as the governing body for
each Individual Project developed in any Planning Area as a
common interest subdivision and (ii) the Merchants Associa-
tion formed as the governing body for the Non-Residential
Areas within the Project.
1.28 "Individual Project Common Area" or "common area"
may be used interchangeably herein and shall mean and refer
to the area within the boundaries of an Individual Project
owned and/or managed by any Sub-Association formed in con-
nection therewith, which area includes, without limitation,
slopes, open space, walls, entry treatments, structures,
lighting, landscaping, drainage, erosion control or other
improvements constructed or installed in connection with
such Individual Project, the maintenance and repair of
which common area shall be the responsibility of such
Sub-Association.
1.29 "Individual Project Declaration" shall mean any
declaration of covenants, conditions and restrictions which
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may be recorded by a Declarant or any Builder in connection
with the development of any Individual Project within the
Overall Property. Every Individual Project Declaration shall
(i) incorporate by reference the provisions of this Master
Declaration, (ii) provide (if such Individual Project is a
common interest subdivision) for the establishment of a
Sub-Assocation for such Individual Project, the individual
members of which shall also be members of the Master
Association, (iii) contain such additional covenants,
conditions and restrictions as are appropriate for the
operation and maintenance of such Individual Project which
shall not be inconsistent with this Master Declaration,
(iv) be subject to the approval of the City if required in
connection with any additional permit, or land use approval
required for the development of such Individual Project, and
(v) be subject to review and written approval of Declarant so
long as Declarant still owns any undeveloped portion of the
Overall Property (which approval Declarant shall not
unreasonably withhold or delay).
1.30 Intentionally Omitted.
1.31 Intentionally Omitted.
1.32 "Institutional Mortgagee" shall refer to any Mort-
gagee which is a bank, savings and loan association, mortgage
or insurance company or other entity chartered under federal
or state laws, and the federal government and any state,
county, city or any agency or political subdivision thereof.
1.33 "Lot" shall mean and refer to any lot created by a
Final Map, provided that a lot created as a Private Street or
open space shall not (except when included in an acreage
computation under Section 2.03) be considered a "Lot" with
respect to which voting rights attach.
1.34 Intentionally Omitted
1.35 "Managing Agent" shall mean any management company,
or Person as may be employed from time to time by the Master
Association to operate and maintain the Community Common Area
and perform such other duties and responsibilities as the
Board may delegate to such Person.
1.36 "Master Association", "Community Association" or
"Association" may be used interchangeably and shall mean the
Aviara Master Association, a California non-profit mutual
benefit corporation formed by the Declarant as the governing
body for the Aviara Project. The members of the Master
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Association shall be each Owner of a Lot, Unit or other
Ownership Interest within the Aviara Project which is subject
to this Master Declaration and the jurisdiction of the
Association including, without limitation, the Declarant
(with respect to each Ownership Interest owned by the Declar-
ant), each Builder (with respect to each Lot, Unit or other
Ownership Interest owned by such Builder whether or not
within an Individual Project), the Owner of each Non-
Residential Lot, each Residential Acreage Lot and any
Apartment Project. The Individual Homeowner Associations and
the Merchants Association (all sometimes referred to herein
as "Sub-Associations") shall not be Members of the Master
Association, but shall be separate and distinct from the
Master Association and shall have no voting rights (as an
entity) in the affairs of the Master Association, provided,
however, that each Owner of a Lot, Unit or other Ownership
Interest within any Individual Project which is governed by a
Sub-Association shall automatically, upon receiving title to
any such Lot, Unit or other Ownership Interest within such
Individual Project, become a Member of the Master Association
and also automatically become a member of such Sub-Association
and shall have all of the rights and be subject to all of the
obligations of both such memberships, including, without
limitation, the obligation to pay Assessments (both Regular
and Special) levied against each such Owner by the Master
Association and such Sub-Association.
1.37 Intentionally Omitted.
1.38 "Master Declaration" or "Declaration" may be used
interchangeably and shall mean and refer to this Master
Declaration of Covenants, Conditions and Restrictions for
Aviara, as it may be amended from time to time.
1.38.1 "Master Maintenance Plan" shall mean and include
(i) the plan approved by the City Planning Director pursuant
to Chapter I, Paragraph H, Section 16, page 23 of the Master
Plan and City Planning Resolution 2595, Condition 11, a
reduced copy of which is attached hereto as Exhibit "F",
(ii) the Access and Utility Plats (prepared for each Planning
Area in connection with the acquisition of such Planning Area
by a Merchant Builder), (iii) the terms and conditions of the
maintenance agreement for drainage across the Golf Course
approved by the City attorney pursuant to City PC Resolution
2595, Condition 65, and (iv) the Final Map conditions and
easements for view preservation, together with the two and
one-half feet height limitation for the preservation of clear
space and sight distance at intersections as shown on the
Final Maps.
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1.38.2 "Master Plan" is defined and described in Para-
graphs B and C of the Recitals to this Declaration. The
Master Plan constitutes the zoning for the Overall Property
and is subject to comprehensive review by the City staff
every four (4) years or more frequently at the direction of
the City Council.
1.38.3 "Merchants Association" shall mean the Aviara
Resort and Merchants Association, a non-profit mutual benefit
corporation, the members of which are the Owners of the Resort
Hotel (Planning Area 2), the Golf Course (Planning Area 1),
the Sports Center (Planning Area 10), the Restaurant Area
(Planning Area 11), and the Commercial Area (Planning Area
23).
1.39 "Mortgage" shall mean any duly recorded contract by
which any Lot, Unit or other Ownership Interest is encumbered
to secure the performance of an act or obligation. "Mort-
gagor" shall mean the Owner of a Lot, Unit or other Ownership
Interest encumbered by a Mortgage. As used herein, the word
"Mortgage" shall include a deed of trust.
1.40 "Mortgagee" shall mean the record holder of a
beneficial interest under a Mortgage. As used herein, the
word "Mortgagee" shall include the beneficiary under a deed
of trust.
1.41 "Non-Residential Areas" or "Non-Residential Lot"
may be used interchangeably and shall mean and refer to the
Golf Course (Planning Area 1), the Hotel Resort (Planning
Area 2), the Restaurant Area (Planning Area 4) the Commercial
Area (Planning Area 23) and the Sports Complex (Planning
Area 5).
1.41.1 "Non-Residential Contribution" is defined in
Section 5.01(a) of this Declaration.
1.42 "Overall Property", means all of the real property
within Zone 19 of the City of Carlsbad, The legal description
of the Overall Property is attached hereto as Exhibit "A".
1.43 "Owner" or "Member" may be used interchangeably and
shall mean any person, in which title to a Lot, Unit or other
Ownership Interest is vested as shown by the Official Records
of the Office of the County Recorder of San Diego County.
Declarant and each Builder shall be deemed the Owner of each
unsold or unleased Ownership Interest until title thereto is
so vested in another Owner.
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1.44 "Ownership Interest" shall mean fee title to each
Lot created by recordation of a Final Map and, upon further
subdivision of any one or more such Lots (for example, in
connection with the recordation of a Final Map and condomin-
ium plan for condominium purposes) shall also mean and refer
to each individual Unit, parcel or Lot within any Individual
Project created as a result of such further subdivision.
1.45 "Person" or "person" shall mean individuals, part-
nerships, associations, corporations or any other form of
business organization or one or more of them as the context
may require.
1.46 "Phase I" or the "First Phase" shall mean those
portions of the Overall Property within Planning Areas 1
through 16, inclusive, described in the Master Plan and
located within the boundaries of the City of Carlsbad Tracts
85-35 Aviara Phase I - Units A through D, inclusive.
1.46.1 "Phase 1" or "DRE Phase 1" shall mean those por-
tions of the Overall Property (including Lots and Master
Common Area)' described on Exhibit "E" attached hereto, which
initially constitute the Project and with respect to which
Regular Assessments shall commence on the first day of the
month next following the close of escrow for the first sale
of a Lot, Unit or other Ownership Interest therein under the
authority of a public report.
1.46.2 "Phase" or "phase" (i) when referring to the Aviara
Project which is subject to the jurisdiction of the Master
Association shall mean DRE Phase 1 and all those portions of
the Overall Property which have been annexed to and made a
part of the Project and (ii) when referring to any portion of
an Individual Project containing Lots or Units shall mean the
initial development of Lots or Units within such Individual
Project which are subject to the jurisdiction of any
Sub-Association formed in connection with such Individual
Project and any portion of such Individual Project which may
thereafter be annexed to, and become a part of such
Individual Project and subject to the jurisdiction of the
Sub-Association created in connection therewith.
1.47 "Private Street" shall mean any portion of the
Project designated on a Final Map as a private street, or a
street dedicated to but not accepted by the City as shown on
the title sheet for such Final Map, together with all paved
surfaces thereof and all curbs, gutters, slopes, drains, and
any medians, entry treatment, signage, lighting, landscaping,
irrigation or other improvements made to or installed within
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the right-of-way for such street. Private Streets are the
Individual Project Common Area of the Individual Project in
which they are located and the cleaning, maintenance and
repair of same shall be the obligation of the Builder of and
thereafter the Sub-Association for such Individual Project.
1.48 "Project" or "Aviara Project" may be used inter-
changeably and shall mean and refer to all property and
improvements contained within DRE Phase 1 as more particu-
larly described on Exhibit "E" attached hereto, together with
any property and improvements subsequently annexed to and
made a part of the Project and subject to the jurisdiction of
the Master Association.
1.48.1 "Project Entries" or "Entry Treatments" shall mean
all those improvements, walls, gates, fencing, signage, land-
scaping, trees, streetscapes, enriched paving, monuments,
landmarks, lighting, tile, logos, special materials and
architectural features located, designed and constructed
within the Project in accordance with and as described in the
Master Plan which are intended to create, establish, main-
tain, distinguish, represent and enhance the value and high
level of quality, character, visual appearance and reputation
of the Aviara Project and all of the Individual Projects,
Lots and Dwellings located within the Project.
1.49 "Public Street" shall mean any street, paving,
curb, gutter, or other improvement of any type located within
the right of way of any street shown on a Final Map as dedi-
cated to and accepted by the City (or if rejected is later
accepted by the City) the cleaning, maintenance and repair
of which is performed by the City except any medians, land-
scaping, irrigation, slopes, lighting, signage or other
improvements, the obligation for the cleaning, maintenance
and repair of which has been imposed upon the Master Asso-
ciation pursuant to the LFMP, the Master Plan or any condi-
tion imposed in connection with any land use or development
approval for the Project. In the event said obligation to
clean, maintain and repair is imposed on or in connection
with the development of an Individual Project, said obliga-
tion shall be the responsibility of the Builder therefor and
thereafter the Sub-Association for such Individual Project.
1.49.1 "Recreational Vehicle Site", "RV storage area" or
"RV Site" shall mean an area within the Overall Property
selected by Declarant and approved by the City for operation
and maintenance of an RV storage area.
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1.50 "Regular Assessment" shall mean an Assessment
levied against an Owner (including, without limitation, each
Builder and Owner of any Non-Residential Lot) and his or her
Ownership Interest for maintenance, repair or other Community
Expense in accordance with Section 5.01 hereof.
1.51 "Regulated Improvement" shall mean any construc-
tion, improvement, or work, the making of which requires the
prior written Approval of the Architectural Control Committee,
as more particularly set forth in Article 8 hereof.
1.52 "Residential Acreage Lot" shall mean a Lot within a
Planning Area which has been designated for residential use,
but for which (i) the density and type of such residential
use (whether condominium or apartment) has not yet been
established or (ii) is an Apartment Area or Apartment Project.
1.53 "Resort Hotel" or "Hotel" shall mean and refer to
the real property and improvements now or hereafter located
within Planning Area 2 which are maintained and operated as a
hotel complex and related facilities open to the public.
1.54 "Resort Hotel Owner" or "Hotel Owner" shall mean
and refer to the fee owner of the Resort Hotel and, unless
the context otherwise requires, shall also refer to any
Person engaged to manage and operate the Hotel if other than
such Owner.
1.54.1 "Site Development Plan" shall mean the applica-
tions, plans, drawings and documents required to be submitted
for review by the City's Planning Commission (and City Council
if required) for site specific development approvals and per-
mits required for an Individual Project.
1.55 "Special Assessment" shall mean an Assessment
levied in accordance with Section 5.02 hereof.
1.56 "Sports Complex" or "Sports Center" may be used
interchangeably and shall mean and refer to the real property
within Planning Area 10, together with the improvements now or
hereafter developed thereon.
1.57 "Supplemental Declaration", "Supplemental Annex-
ation Declaration" or "Annexation Declaration" shall mean and
refer to a declaration or similar instrument annexing to the
Aviara Project additional portions of the Overall Property as
provided in Article 19 and, with respect to any Individual
Project, shall mean and refer to a Declaration or similar
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instrument annexing a subsequent phase to the initial phase
or phases within any such Individual Project.
1.58 "Trail System" shall mean that portion of the
pedestrian circulation system described in Chapter IV of the
Master Plan consisting of the Lagoon Nature Trail, the Golf
Course Trail, the Oak Preserve Trail, and the Stream and Lake
Trail, all as more particularly shown on Exhibit "G" attached
hereto,
1.59 "Unit" shall mean and refer to any type of dwelling
whether a single family residence, condominium or apartment
as such terms are defined in this Master Declaration.
1.59.1 "View Corridors" or "View Preservation Areas" shall
mean those areas of the Overall Property shown on the Master
Plan and on the Master Maintenance Plan with respect to which
the selection and placement of trees and other landscaping
and improvements have been restricted so as to preserve views
within the Project, as more particularly described in tha
Master Maintenance Plan.
1.60 "Water Conservation Improvements" shall mean all
pipe, conduit, pumps, if any, valves and other improvements
now or hereafter installed within any Planning Area as
required by the City as a part of a water system (separate
from potable water service for human consumption) for
reclamation, irrigation and water conservation purposes.
ARTICLE 2
MASTER ASSOCIATION MEMBERSHIP
AND VOTING RIGHTS
2.01 Membership. Each Owner (including the Declarant,
any Builder and the Owners of the Hotel, Sports Center, Golf
Course, Restaurant Area and Commercial Area) shall automa-
tically upon becoming an owner of an Ownership Interest
within the Overall Property, become a member of the Master
Association and.receive and be subject to all of the rights
to the privileges, duties and obligations incident to said
membership. Said membership shall be appurtenant to and
inseparable from each such Ownership Interest and shall be
automatically transferred upon any transfer or conveyance of
such Ownership Interest. For each member, there shall be on
file with the Master Association an address if"different from
such member's Unit or Lot address within the Project, and a
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phone number in case of emergency, all of which shall be kept
current by the member. Each Individual Association, of which
such Owner is also a member, shall at all times provide such
information to the Master Association.
2.02 Transfer. Master Association membership held by
each Owner shall not be transferred, pledged or alienated
in any way, except upon conveyance or encumbrance of such
member's Ownership Interest and then only to the transferee
of such Ownership Interest or the Mortgagee acquiring the same
through foreclosure or deed in lieu of foreclosure. Any
attempt to make a prohibited transfer is void and will not be
reflected on the books and records of the Master Association.
2.03 Voting Rights. Contemporaneously with the com-
mencement of Regular Ass'essments by the Master Association,
the voting power residing in the members of the Master Asso-
ciation shall be as follows:
A. Class A Votes
(i) Each Owner (including a Builder) of a Lot or
Unit in an Individual Project for which Reg-
ular Assessments (by the Master Association
and the Sub-Association for such Individual
Project) have commenced in accordance with
Section 2792.16(f)(1) of the California Code
of Regulations shall have the right (through
a delegate in the case of a Sub-Association
selected by vote of such Owners at a meeting
of such Sub-Association), to cast at a meeting
of the Master Association one (1) vote for
each Lot or Unit owned by such Owner within
such Individual Project. The exercise of said
voting power may be in a block or otherwise as
set forth in written instructions to such dele-
gate, a copy of which instructions shall be
delivered to the person designated to act as
the Secretary of the Master Association presid-
ing at such meeting of the Master Association
prior to voting on any matter with respect to
which such Owners' votes are to be cast.
(ii) Each Builder (in addition to its participation
in the votes cast pursuant to subparagraph
A(i) above) shall have the following votes on
matters put to a vote at a meeting of the
Master Association:
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(a) One (1) vote for each Lot or Unit within
any portion or Phase of an Individual
Project owned by such Builder which has
not yet been annexed and made subject to
the jurisdiction of the Sub-Association
created for such Individual Project.
(b) One (1) vote for each acre contained
within an Apartment Area and for each
Residential Acreage Lot owned by such
Builder for which the density (in terms
of separate Lots or Units) has not yet
been established by a Final Map (includ-
ing without limitation, a Final Map for
condominium purposes), and upon recorda-
tion of such a Final Map (the recordation
of which must be approved in writing by
Declarant) shall have one (1) vote for
each separate Lot and each Unit (in any
phase of a Condominium Project with
respect to which an escrow for the sale
of a Unit has closed) developed on such
Residential Acreage Lot.
(iii) Each Owner (including a Builder) owning a Lot
in any Planning Area developed for residential
purposes (which is not a part of a common
interest subdivision or an Apartment Project)
shall be entitled to one (1) vote for each
such Lot for which Regular Assessments for the
Master Association have commenced, and each such
Owner shall have the right, but not the obli-
gation, to exercise such vote through a dele-
gate selected by such Owner and the other
Owners of Lots within such Planning Area
wishing to be so represented by a delegate,
provided that a copy of the instructions to
such delegate or representative must be signed
by the Owners whose votes are to be cast by
such delegate or representative and delivered
to the person designated to act as the Secre-
tary of the Master Association at any meeting
at which their votes are to be cast.
(iv) Each Owner (if other than the Declarant),
which is subject to the Non-Residential Con-
tribution shall have that number of Class A
votes attributable to its Ownership Interest
as is equal to the product derived by
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multiplying its respective percentage of the
Master Association's budget by the total
number of Class A votes held by all Owners not
subject to the Non-Residential Contribution.
B. Class B Votes
Until "conversion" to Class A Votes as provided in
Section 2.04, the Declarant shall have the following
votes at meetings of the Master Association:
(a) Three (3) votes for each Residential Lot owned
by the Declarant.
(b) Three (3) votes for each acre contained within
each Non-Residential Lot owned by Declarant
(other than the Golf Course).
(c) Three (3) votes for each acre contained within
each Residential Acreage Lot for which the
density thereof (in terms of Lots or Units)
has not yet been established by a Final Map
(including without limitation a Final Map for
condominium purposes), and upon recordation of
such a Final Map by Declarant, Declarant shall
have three (3) votes for each separate Lot
created within such Residential Acreage Lot
and three (3) votes for each Acre within any
portion of such Residential Acreage Lot devel-
oped as a Condominium Project, which portion
has not yet been annexed to and made subject
to the jurisdiction of the Sub-Association for
such Condominium Project.
(d) If the Declarant is the Owner of any of the
following Non-Residential Areas, the Declarant
shall have, until the "conversion" described
in Section 2.04 that number of Class B votes
as is set forth opposite the Non-Residential
Areas below:
The Golf Course - Six (6) Class B Votes
The Hotel - Fifteen (15) Class B Votes
The Sports Center - Three (3) Class B Votes
The Restaurant Area - Three (3) Class B Votes
The Commercial Area - Nine (9) Class B Votes
2.04. Conversion of Votes to One Class All Class B
votes shall convert to Class A votes (1) during any period
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that the total of all Class A votes then outstanding is equal
to or exceeds the total of all Class B votes then outstanding
and (2) irreversibly on the first to occur of the following:
(i) fifteen (15) years from the date of
the original issuance of the most
recent final subdivision public
report for any portion of an Indi-
vidual Project developed as a common
interest subdivision, or
(ii) the fifteenth (15th) anniversary of the
original issuance of the final sub-
division public report for the first
Individual Project developed as a
common interest subdivision.
Wherever in this Master Declaration a reference is made to
any action, decision or approval which must be determined by
a vote or written assent of the Owners, such vote or written
assent shall mean a vote or written assent of the Owners at
or in connection with a meeting of the Master Association,
which vote shall be taken in accordance with the following
procedure:
(1) The vote or written assent of a bare
majority of the Class B voting
power, as well as the vote or
written assent of the prescribed
majority of the Class A voting
power, or,
(2) If a conversion of the Class B votes
to Class A votes has occurred, tempo-
rarily (and is in effect at the time
such vote is taken) or irreversibly,
then by the vote or written assent
of a bare majority of the total voting
power of the Association, as well as
the vote or written assent of the
prescribed majority of the total
voting power of the Members other
than the Declarant.
With the exception of any vote taken pursuant to
Sections 4.02 (to assure the right of Members excluding the
Declarant to elect at least one member of the Board of Directors),
11.06 (for the extension of easements for marketing and sales),
and 15.07 (enforcement of bonded obligations) the use of the
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words "other than the Declarant", "excluding the Declarant"
are not intended and shall not preclude the Declarant from
casting the number of votes at any time attributable to each
Lot, Unit or Ownership Interest owned by Declarant provided
such votes are cast in compliance with the procedures set
forth in this Section.
ARTICLE 3
GENERAL USE RESTRICTIONS
In addition to the Design Guidelines and Development
Standards set forth in the Master Plan to which all devel-
opment within the Project must conform, the following use
restrictions and covenants shall apply to all portions of the
Aviara Project:
3.01 Antennae. No wires, antennae, satellite dishes or
similar equipment may be placed or maintained above the '
surface of the ground within any Individual Project or any
location within the Project, except that such equipment may,
with the prior written consent of the Architectural Control
Committee, be installed in connection with the Hotel, the
Golf Course, Sports Complex, the Commercial Area or the
Restaurant Area subject to such screening or other conditions
as may be imposed upon such installation by the Architectural
Control Committee.
3.01.1 Cable TV. Installation, operation, maintenance and
repair of cable television equipment, conduit and improve-
ments shall require the prior written consent of the
Declarant (and if required, the City).
3.02 Children and Guests. Each Owner shall be respon-
sible to the Master Association for the conduct and behavior
of guests and children using, residing with or visiting such
Owner and/or for any injury or damage to persons or property
caused by such guest or children.
3.03 Fires. There shall be no burning fires within the
Project except fires contained in fireplaces within individ-
ually owned Dwellings or Buildings and barbecue fires in
receptacles adequately designed for such purposes.
3.04 Grading. There shall be no alteration of landforms
in, removal of registration from or installation or construc-
tion of any structures or improvements of any kind in or on
the Community Common Areas within the Project or any changes
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or alterations to drainage or drainage patterns, erosion
control, desiltation (and any equipment to monitor desilta-
tion) or other improvements in the Overall Property or to the
exterior appearance of any improvements within the Community
Common Area without the prior written approval of the
Architectural Committee.
3.04.1 Landscaping Removal. There shall be no removal of
landscape material which visually buffer the Project from the
surrounding areas to the West and South. Such landscaping
shall be maintained in a healthy and thriving condition.
This is a condition of the California Coastal Commission.
3.05. No Temporary Structures. Except for such temporary
structures or items as may be placed within the Project (i)
by Declarant in connection with development, sale or leasing
of improvements within the Project, (ii) by a Builder in
connection with the development, sale or leasing of Lots or
Units within an Individual Project in conformity with this
Declaration and the Master Plan, and (iii) as may be
reasonably required in connection with the construction or
reconstruction of a Dwelling or other Regulated Improvement
on a single family Lot by an Individual Owner pursuant to the
approval of the Architectural Control Committee, no temporary
buildings, trailers or structures shall be placed on any
portion of the Project.
3.06 Nuisance. No obnoxious, offensive or illegal
activity shall be carried on upon any portion of the Project
nor shall anything be done or placed within the Project which
is or may become a nuisance or cause unreasonable disturbance
or annoyance to other persons within the Project or creates a
risk which is uninsurable or beyond the extended coverage
insurance customarily obtained for residential projects. The
landing of golfballs on Lots adjacent to the Golf Course and
damage or injury customarily associated with such activity
and/or commonly arising out of the proximity of golf course
play adjacent to residential areas (easements for which are
provided in Section 11.08 hereof) shall not be deemed or
constitute a violation of this Section.
3.07 Oil and Mineral Operations. No oil drilling,
mining or similar activity shall be permitted upon or within
any portion of the Project.
3.08 Pets. No animals, livestock, or poultry of any
kind shall be raised, bred, maintained or kept within the
Project except that domestic dogs, cats and other household
pets may be kept within Individual Projects (provided they
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are not kept, bred, raised or maintained for any commercial
purpose and are not in violation of any City ordinance or
other regulation imposed by a Builder of an Individual
Project). The owner of any pet within the Overall Property
shall be responsible for any damage or injury caused by such
pet.
3.08.1 Private Streets. No Owner of a Lot, Unit or other
Ownership Interest shall use or permit the use of any Private
Street in a manner which destroys or unreasonably damages the
streets or streetlights located within or adjacent to any
Private Street or in a manner which obstructs or unreasonably
interferes with the normal and customary usage and enjoyment
of such facilities. Further, no Owner of a Lot, Unit or
other Ownership Interest shall cause or permit any vehicle to
be operated or parked wi'thin any Private Street except in
accordance with the following rules and regulations:
(a) No vehicle shall be operated in an unsafe
manner;
(b) No vehicle shall be parked in a manner which
blocks a driveway approach to any Lot or
Dwelling Unit; and
(c) No vehicle shall be parked on any Private
Street for a period in excess of 72 consec-
utive hours.
3.08.2 Private Sewer Easements. No Owner of a Lot, Unit
or other Ownership Interest shall cause or permit any
structure, plant, material, tree, or thing to be placed
within the private sewer easements which may damage or
interfere with the operation and maintenance of the
underground sewer facilities located within such easements.
3.08.3 Storm Drain Easements. No Owner of a Lot, Unit or
other Ownership Interest shall cause or permit any structure,
plant, material, tree or thing to be placed within the storm
drainage easements which may damage or interfere with or
change the direction which can reasonably be expected to
occur within such easements.
3.09 Power Tools. The operation of power tools and
other similar equipment within the Overall Project shall be
subject to such rules and regulations as the Board of
Directors may adopt from time to time including, without
limitation, rules with respect to permitted hours for the
operation of same.
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3.10 Residential. Except for use and development per-
mitted in connection with the Golf Course, Hotel Site, Sports
Center, the Restaurant Area and the Commercial Area as set
forth in the Master Plan, the Aviara Project shall be limited
to use for residential purposes. Neither an Owners' rental
or lease for long term, short term or transient occupancy of
an Ownership Interest through his or her own effort or through
the efforts of a rental agent or realtor engaged by such
Owner shall constitute a violation of this Section.
3.10.1 Roof Appurtenance. All roof appurtenances,
including air conditioners, shall be architecturally
integrated and concealed from view and the sound buffered
from adjacent properties and streets pursuant to the City's
Banking Department Policy No. 80-6, to the satisfaction of
the City's Directors of "Planning and Building.
3.11 Rules and Regulations. The Board of Directors
shall have the right to adopt and/or amend from time to time
uniform rules and regulations for the use and enjoyment of
the Community Common Area.
3.12 Signs. No sign, notice or advertising of any kind
shall be displayed to public view on or from any portion of
the Individual Projects, provided that an Owner of an indi-
vidual Dwelling may display a sign advertising its avail-
ability for sale or lease so long as such sign complies with
reasonable standards promulgated by the Architectural Committee
as to size, color, shape and other qualifications for such
signs.
3.12.1 Trash Receptacle Area. Trash receptacle areas
shall be enclosed by a six-foot masonry wall with gates
pursuant to City standards. The location of such areas shall
be approved by the City Planning Director.
3.13 Unsightly Items. All rubbish, debris and other
unsightly materials of any kind shall be regularly removed
from the Project and shall not be allowed to accumulate
thereon. All clotheslines, refuse containers, and wood piles
shall be prohibited unless obscured from view of adjoining
Lots or Units and the Common Area.
3.14 Vehicles. No trailer, camper, boat, "RV" or
similar vehicle or equipment shall be stored within the
Public or Private Streets, nor on any driveway or parking
area within an Individual Project Common Area nor on any
driveway on any Lot. No Owner and no guest, tenant, agent,
licensee or employee of any Owner shall park, leave or
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abandon any vehicle within the Project in such a manner as
to impede or prevent ready ingress, egress and/or passage to
or from Public or Private Streets, within the Project. The
use, storage and parking of all vehicles shall in addition be
subject to such rules and regulations as may be adopted from
time to time by the Master Association. The Master Associa-
tion shall own and contract for the professional operation of
the RV Site and parking and storage of RVs shall be limited
to the RV Site. Each Sub-Association shall have the authority
to enter into Agreements with the operator of the RV Site.
Nothing herein shall prevent the individual Owner of a
Dwelling from contracting directly with the operator of the
RV Site for storage by such Owner of his or her RV or similar
vehicle. Each Owner using any such RV Site shall indemnify
and hold harmless the Declarant and the Master Association
and their respective Directors, officers, partners, agents,
employees and representatives from and against any and all
damage, loss or injury to persons or property arising out of
the ownership, use and/or storage of an RV within the RV Site.
3.14.1 Protection of View Corridors. Those areas shown in
the Master Plan as "Vi.ew Corridors" or areas requiring the
selection and placement of trees and other landscaping to
preserve views shall be restricted for such use and the
obligation for the maintenance and preservation for such use
shall be performed and enforced by the Master Association
(and/or by the Sub-Associations or the Merchant Builder(s)
as provided in the Master Maintenance Plan and the Access
and Utility Plats which are part of the Master Maintenance
Plan.
3.15 Easements and Exemptions for Declarant. Notwith-
standing anything herein contained to the contrary, there are
hereby established and reserved to and for the benefit and
use of the Declarant, its successors and assigns, together
with the right to grant and transfer the same, easements,
rights and rights of use, in, over, under, across and through
all portions of the Overall Property which are or may from
time to time be reasonably necessary for Declarant, its
agents, architects, contractors, engineers, employees, sales
persons and/or respective agents' employees and/or represen-
tatives to grad^, construct, build, develop, landscape and
complete all portions of the Project (including, but not
limited to, the installation and maintenance of sewer lines,
storm drain facilities, water lines, underground utilities,
including but not limited to, electrical, gas, telephone and
cable TV lines and equipment, street improvements, walls,
fences and landscaping, the placement and storage of building
materials and equipment, the placement of temporary build-
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ings, trailers and/or structures or equipment) and to adver-
tise, show, market, sell and/or lease unsold or unleased
Lots, Units or Ownership Interest within the Overall Property.
3.16 Easements and Exceptions for Builders. There are
hereby reserved to and for the benefit of such Builder such
easements, rights and rights of use in, over and across the
Private Streets within the Project as are reasonably neces-
sary or required for ingress, egress and access to Lots
owned by each Builder for the purposes of developing Indi-
vidual Projects as contemplated by and in conformance with the
LFMP, the Master Plan, the Access and Utility Plats and this
Declaration. No Builder shall, without the prior written
consent and joinder by Declarant, apply for any subdivision
or resubdivision of any Lot owned by a Builder (except that
with notice to the Declarant, a Builder may make minor lot
line adjustments which do not create any additional Lots
within such Builder's Individual Project or add any portion
of any Lot to the Community Common Area or to a Lot owned by
another Builder). No Builder shall, without the prior w'ritten
consent of Declarant, alter, grade, excavate, divert or in
any way impede or interfere with the passage of vehicles on
any Private Street outside of the Individual Project being
developed by such Builder, or with any drainage pattern,
erosion control, desiltation improvements or facilities, gas,
water, electrical or other utility lines, lighting, signage
or improvements on or within a portion of the Project not
owned by such Builder or if owned by such Builder, in a
manner prohibited by the LFMP, Master Plan, the Development
Standards set forth in the Master Plan, the Access and Util-
ity Plats or any other land use entitlement, development
approval or permit issued by the City or any other govern-
mental jurisdiction including, without limitation, the
California Coastal Commission.
ARTICLE 4
MANAGEMENT AND CONTROL OF COMMUNITY COMMON AREA
4.01 Management Body. The Board of Directors of the
Master Association shall be the "management" or "governing"
body of the Master Association and of the Community Common
Area of the Project.
4.02 Initial Board of Directors. The initial Board of
Directors are the persons named in the Articles of Incorpora-
tion of the Master Association (as said Articles may be
amended prior to the close of escrow for the sale of the
first Ownership Interest in an Individual Project pursuant to
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a final subdivision public report) and any persons who may in
accordance with the Bylaws replace any such person prior to
the first regular meeting of the Master Association. From
and after the first regular meeting of the Master Association
held pursuant to Section 4.03, the Board of Directors shall
consist of at least one (1) Director elected by the vote of
Members (excluding the Declarant and any Builder) and the
Merchants Association shall have the right to appoint at
least one (1) member of the Board of Directors (if there
exists a five member Board) and at least two (2) members of
the Board of Directors (if there exists a seven member
Board).
4.03 Transfer of Management and Control to the Master
Association. Subject to the easements and rights reserved
herein for the benefit of the Declarant and other Builders to
develop•Individual Projects as described herein and to sell
or lease Lots, Units and other Ownership Interests therein,
title to that portion of the Community Common Area described
in Exhibit "E" attached hereto shall be conveyed to the Master
Association on or before the close of escrow for the sale of
the first Lot or Unit in an Individual Project pursuant to a
final subdivision public report issued by the California
Department of Real Estate. Management and control of such
Community Common Area shall be transferred to the Master
Association at the first regular meeting of the Master Asso-
ciation which shall be held within forty-five (45) days after
the close of escrow for the sale of fifty-one percent (51%)
of the Lots or Units within such Individual Project under the
authority of a public report but in no event within six (6)
months after the close of escrow for the sale of the first
such Lot or Unit within such Individual Project under the
authority of a public report.
4.04 Powers and Duties Generally. In addition to the
powers of collection and enforcement set forth in Article 6
hereof, (and such other powers as may be exercised by a
California non-profit mutual benefit corporation), the Master
Association, through its Board of Directors, its officers,
employees or other duly authorized agents and representatives
may, subject to the provisions of the Articles of Incorpor-
ation, the Bylaws and this Declaration, exercise any or all
rights and powers enumerated in this Declaration as the same
may from time to time be amended.
4.05 Use of Common Funds. The Master Association through
its Board of Directors, officers or other duly authorized
agents and representatives may, for the benefit of all of the
Owners and the Project, provide, perform, cause to be performed.
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maintained, acquired, prepared, contract and/or pay for out of
Community Funds all or any of the following:
(a) Utilities. Water, sewer, electrical and gas
and other necessary utility services for the Community
Common Area.
(b) Community Common Area Maintenance, Repair and
Operations. Maintenance, repair and/or replacement of
Community Common Area including, without limitation,
landscaping, Entry Treatments, open space. Common
Area slopes, walls and fencing (including, without
limitation, walls and fencing at the boundary of Lots
not subject to the jurisdiction of a Sub-Association),
drainage, improvements, irrigation systems, sewer
systems, Water Cons'ervation Improvements, desiltation
and erosion control improvements, together with any City
or other governmentally required landscaping, mainten-
ance, repair and/or supervision of the Trail System, the
RV Site and any community cable, antenna television or
satellite master antenna system, staff and personnel
to operate the Architectural Review Committee and to
engage such professionals or other consultants as are
reasonably necessary to assist the Architectural Review
Committee.
(c) Supplies; Tools. All supplies, tools and
other equipment as are reasonably necessary for use in
the maintenance and repairs of the Community Common
Area.
(d) Insurance and Indemnification. Such policies
of personal injury, property damage and other insurance
with respect to the Common Area covering such persons,
property and risks as are more particularly set forth in
Article 12 of this Master Declaration including, without
limitation, the professional operation of the RV Site,
and City or other governmentally required maintenance,
supervision, and/or repair of all portions of the Trail
System and any cost and expense required to indemnify
the City or any of its officers, boards or commissioners,
employees or agents from liability arising out of injury
or damage to persons or property determined by a court
or through settlement (with the participation or consent
of the insurance carriers for the Master Association)
after a claim or demand by the City for such indemnifi-
cation for injury or damage to persons or property
alleged to have been caused by a dangerous condition
within Public Streets within the Project or public
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right-of-way adjacent thereto occurring as a result of
maintenance, landscaping or repair of Common Area land-
scaping, medians or other improvements within or adja-
cent to suph Public Streets, public right-of-way con-
ducted by or on behalf of the Master Association.
(e) Miscellaneous Services. Such other services
for the use, enjoyment and protection of the Community
Common Area as the Board of Directors may determine from
time to time are reasonable, necessary, proper or desir-
able to operate the Architectural Review Committee and
to engage such professionals or other consultants as are
reasonably necessary to assist the Architectural Review
Committee.
(f) Accounting and Legal. Accounting and legal
services and fees for the Master Association, its Board
of Directors and its officers, provided that said ser-
vices and fees are incurred solely in connection with
(i) the management, protection and maintenance of
the Common Area, (ii) the performance or enforcement
(including the collection of Regular and/or Special
Assessments) of the provisions of this Master
Declaration, the Bylaws or Articles of Incorporation, or
(iii) litigation, arbitration, negotiations and/or
adjustments arising out of the damage, destruction,
reconstruction, alteration, repair or condemnation of
all or any portion of the Common Area.
(g) Fidelity Bonds. Such fidelity bond or bonds
naming the Board of Directors, the officers of the
Master Association, any Managing Agent and/or such other
person or persons responsible for handling Community
Funds as may be designated by the Board of Directors as
"principals" with the Master Association (as trustee or
agent for the Members thereof) as the "obligee."
(h) Taxes; Assessments; License Fees. Taxes,
assessments and/or fees of whatever type duly assessed
against all or any portion of the Common Area, which
taxes, assessments and/or fees are not separately
assessed to individual Owners by the governmental agency
or authority making or levying any such tax, assessment
and/or fee, including, without limitation, assessments
of the type contemplated in Section 11.09 hereof.
(i) Budgets and Financial Statements, The cost of
preparation and distribution of the following financial
information:
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(1) A budget for each fiscal year of the
Master Association to be distributed
not less than forty-five (45) days
and not more than sixty (60) days
prior to the beginning of each
fiscal year, which budget shall con-
tain, among other information deemed
pertinent by the Board the
following:
(A) An estimate of revenue and
expenses for the Master Asso-
ciation on an accrual basis
(including, without limitation,
all cost and expenses to be paid
for out of Community Funds for
maintenance and repair of Com-
munity Common Area, (including
without limitation all Project
Entries to the standards set
forth in Exhibits "F" and "G"
attached hereto) expenses to
purchase and maintain insurance
as hereinafter described to pay
for the cost of management,
accounting and legal services
and any assessments or taxes to
the extent not levied against
Individual Lots, Units or other
Ownership Interest within the
Project and to pay any other
expenditure permitted with the
use of Community Funds described
in this Declaration including
without limitation any bulk
billing of Owners for basic
cable television service
through a provider approved by
the Master Association, the
rate for which basic service
shall be adjusted as additional
Units are annexed to the
Project);
(B) The amount of the total cash
reserves of the Master Asso-
ciation then currently avail-
able for replacement or major
repairs of Community Common
Area and for contingencies;
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(C) An itemized estimate of the
remaining life of, and method
of funding to defray the cost
of repair, replacement or
additions to the major compo-
nents of the Community Common
Area for which the Master Asso-
ciation is responsible;
(D) A general statement setting
forth the procedures used by
the Master Association and its
Board of Directors in the cal-
culation and establishment of
reserves to defray the costs
of repair, replacement or addi-
tions to the major components
of the Community Area and
Facilities for which the Master
Association is responsible;
(2) A balance sheet as of an account-
ing date which is the last day of
the month closest in time to six (6)
months from the date of closing of
the escrow for the first sale of
a Lot, Unit or other Ownership
Interest within any Individual
Project, together with an Operating
Statement for the period from the
date of said first closing to said
first accounting date, which shall
be distributed to each Owner within
sixty (50) days after said accounting
date and shall include a schedule of
assessments received and receivable
identified with respect to each Owner
by such Owner's name and by the number
or address of the Lot, Unit or other
Ownership Interest so assessed.
(3) A report (distributed within one
hundred twenty (120) days after the
close of each fiscal year of the
Master Association) consisting of
(A) A balance sheet as of the end
of each fiscal year" of the
Master Association,
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(B) An Operating (Income) Statement
for said fiscal year,
(C) A Statement of Changes in
Financial Position for such
fiscal year, and
(D) For any fiscal year in which
the gross income to the Master
Association exceeds $75,000,
a copy of the review of said
Annual Report prepared in
accordance with generally
accepted accounting principles
by a licensee of the California
State Board of Accountancy and
if such Report is not prepared
by an independent accountant,
it shall be accompanied by a
certificate of an authorized
officer of the Master
Association that the statement
was prepared from the books and
records of the Association
without independent audit or
review.
(4) A statement (distributed within sixty
(60) days prior to the beginning of
each fiscal year of the Master Asso-
ciation) setting forth the Master
Association's policies and practices
in enforcing its remedies against
members for defaults in the payment
of Regular and Special Assessments
including the recording and fore-
closing of liens against Lots, Units
or other Ownership Interests of
Owners within the Project.
(j) Ownership Interests Acquired by the Master
Association. The cost to purchase, sell, lease and
maintain any Lot, Unit or other Ownership Interest
abandoned by its Owner or acquired by the Master Asso-
ciation pursuant to the provisions of Section 6.03 of
this Declaration.
(k) Managing Agent; Contract Limitations. The
services of a Managing Agent provided that any contract
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for the services of any Managing Agent (which contract
shall provide for termination by either party for cause
upon written notice and without cause upon sixty (60)
days' written notice) and any other contracts with any
other third persons engaged or employed to furnish
services for the Community Common Area shall provide for
a term not longer than one (1) year, unless a longer
term has been approved by a majority of the Owners
otherwise entitled to vote (excluding the Declarant
after the close of escrow for the sale of the first Lot
or Unit in an Individual Project pursuant to a final
subdivision public report). The above contract limita-
tion does not apply to (i) contracts with a public
utility company if the rate charges for material or
services are regulated by the Public Utilities Commis-
sion, or (ii) prepaid casualty and/or liability insur-
ance policies of not to exceed three years' duration
provided such policy provides for short rate cancella-
tion by the insured.
4.06 Delegation of Powers. The Board of Directors shall
have the power and the right (as more particularly described
in the Bylaws) to delegate from time to time any of its auth-
ority, powers or functions to officers of the Master Associa-
tion, committees, employees or agents, including, but not
limited to, a Managing Agent for the purpose of facilitating
the work of the Board and such delegation may include the
authority to enforce the provisions of this Master Declara-
tion and the authority to file any notice and take any legal
action on behalf of the Owners where the filing or the taking
of such action is within the authority of the Board of
Directors.
4.07 Financial Records and Accounts; Inspection. The
Secretary and/or Treasurer of the Master Association, or a
Managing Agent employed by the Master Association, may from
time to time be designated by the Board of Directors to keep
or cause to be kept detailed records of the actions of the
Board of Directors, the officers of the Master Association,
minutes of the meetings of the Board and/or the Master
Association, and the financial records and books of account
of the Master Apsociation, including, without limitation, a
listing of all receipts and expenditures of Community Funds,
as well as a separate entry for each Regular and Special
Assessment levied or charged against each Lot, Unit or other
Ownership Interest, the dates when so assessed and when the
same is due, the amounts paid thereon, and the balance, if
any, of any Assessment remaining unpaid, and the balance
sheets, operating statements, reports and audits prepared and
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delivered in accordance with the provisions of Section
4.05(i) hereof. Said books and records may, upon reasonable
notice to the Board of Directors or any custodian thereof
designated by the Board, be inspected and/or copied by any
Owner or his duly authorized representatives at the Owner's
expense during regular business hours, for any purpose
reasonably related to such Owner's interest as a Member of
the Master Association. Any Mortgagee named in any Mortgage
encumbering any Lot, Unit or other Ownership Interest shall
have the same right of inspection and copying upon written
request to the Board therefor. Each Director shall have the
absolute right at any reasonable time to inspect all books,
records and documents of the Master Association and all
property owned or controlled by the Master Association with
said right to each Director to include the right to make
extracts of and copy documents. The Board of Directors shall
establish reasonable rules with respect to the time and
manner of notice to be given, the hours and days of the week
of when such inspection may be made and the payment of costs
of reproducing copies of such books and records.
4.08 Limitation of Liability. Neither the Declarant,
the Master Association, nor its Board of Directors (nor any
member thereof), nor any officers, employees or agents of any
of them, shall be liable for any failure to provide any ser-
vice or perform any duty, function or responsibility desig-
nated or provided in this Master Declaration to be performed
by the same unless such failure is the result of the gross
negligence of Declarant, the Master Association, the Board of
Directors or any such officers, employees or agents.
4.09 Indemnification. The Master Association shall and
does hereby indemnify the Declarant (its agents, employees
and/or any trustee), the Board of Directors (and each member
thereof), the officers of the Master Association (and each of
them), and each of the employees and agents of the Master
Association, against all expenses and liabilities, including
attorneys' fees reasonably incurred by such Person or Persons
in connection with any proceeding (including, but not limited
to, arbitration proceedings), to which he or she may be a
party, by reason of his or her being or having been a director,
officer or employee of the Master Association, except in such
cases where he or she is adjudged guilty of gross negligence
or bad faith in the performance of his or her duties.
4.10 Limited Powers of Attorney to Board of Directors,
Each Owner, by the acceptance and recordation of the deed to
his or her Ownership Interest and in consideration of the
benefits and rights received as a Member of the Master Asso-
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ciation, does hereby appoint the Board of Directors as its
attorneys-in-fact and does hereby further grant and assign to
the Board of Directors (as the same may from time to time be
constituted) an irrevocable power of attorney, coupled with
an interest, to be exercised by at least a majority of the
Board of Directors to (i) hold, sell, convey, transfer,
quitclaim, encumber, lease or sublease on behalf of all
Owners, any Lot, Unit or other Ownership Interest acquired by
the Master Association by reason of the abandonment thereof
or by reason of the foreclosure of an assessment lien in
accordance with Section 6.03 hereof, (ii) enforce the pro-
visions of this Master Declaration, (iii) enforce, prosecute,
adjust, negotiate, settle and/or defend on behalf of all
Owners, as the real party in interest, any action or claim
arising out of the damage, destruction, reconstruction,
alteration, repair or taking of all or any portion of the
Common Area, and (iv) seek, apply for, obtain, execute,
acknowledge and/or record any docximents, certificates,
permits, licenses and/or instruments as may be reasonably
required to permit the Board of Directors to fulfill all of
its respective duties and obligations hereunder. Each Owner,
by the acceptance and recordation of the deed or lease to his
or her Lot, Unit, or other Ownership Interest, does hereby
covenant and agree (which covenant and agreement shall be
specifically enforceable) promptly upon demand by the Board
of Directors therefor, to execute, acknowledge and deliver to
tiie Board of Directors from time to time such instriiments
and/or documents, in recordable form if necessary, as the
Board of Directors may reasonably require to more effectively
carry out the provisions of this Section. Notwithstanding
anything herein contained to the contrary, any sale of any
property owned by the Master Association with an aggregate
fair market value equal to more than five percent (5%) of the
budget for the Common Expense for the current fiscal year
shall (after the close of escrow for the first sale of a Lot
or Unit pursuant to a final subdivision public report) require
ttie prior approval of a majority of the voting power of the
Master Association (excluding the Declarant).
ARTICLE 5
ASSESSMENTS; COMMON FUNDS
5.01 Regular Assessment.
(a) Regular Assessment. Commencing on September 1, 1989,
the total estimate of revenues and expenses for the Master Associ-
ation as set forth in budget prepared for each fiscal year for the
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Master Association in conformance with the provisions of
Section 4,05(i) hereof, shall be first adjusted by deducting
from such total the following:
(i) two percent (2%) of said budget which shall be
assessed to the Owner of the Golf Course as the
Regular Assessment.
(ii) five percent (5%) of said budget which shall be
assessed to the Owner of the Hotel as the Regular
Assessment.
(iii) one percent (1%) of said budget which shall be
assessed to the Owner of the Sports Center as
the Regular Assessment.
(iv) one percent (1%) of said budget which shall be
assessed to the Owner of the Restaurant Area, as
the Regular Assessment.
(v) three percent (3%) of said budget which shall be
assessed to the Owner of the Commercial Area, as
the Regular Assessment.
(collectively hereinafter referred to as the "Non-Residential
Contribution) and the balance of the total estimated annual
Community Common Area expense shall then be divided by the
total number of acres of the Overall Property (excluding the
Non-Residential Areas) and the quotient of such division
allocated and assessed to each Builder and to the Declarant
on the basis of the number of acres within each Lot (not
subject to any part of the Non-Residential Contributor) owned
by the Declarant and each Builder as set forth on Exhibit "H"
attached hereto.
After the close of escrow for the sale of the
first Lot or Unit within an Individual Project (or within the
first Phase thereof) under the authority of a public report,
the balance of the total estimate of revenue and expenses for
the Master Association remaining after deducting the Non-
Residential Contribution shall then be divided by the number
of Dwelling Units or Lots within each Individual Project (or
such Phase as is applicable in the circumstances excluding
the Non-Residential Areas) and the quotient of such division
shall be allocated to and assessed against each Owner of the
Dwelling Units or Lots within such Individual Projects (or
Phases thereof) including the Builder thereof with respect
to all unsold Dwelling Units or Lots within such Individual
Projects (or Phases thereof). Apartment Projects shall be
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assessed on an acreage basis in the same manner as Individual
Projects are assessed prior to the first sale of a Lot or
Unit under the authority of a public report.
The procedure described in the immediately
preceding paragraph shall be repeated upon the first close of
escrow for the sale of a Lot or Unit in each succeeding Phase
of such Individual Project and within all other Individual
Projects (or Phases thereof) which are developed as common
interest subdivisions. The acreage determined by the
Declarant as shown on Exhibit "H" (as the same may be
amended) and on any similar exhibit thereafter attached to
any Annexation Declaration shall be conclusive and binding
upon all persons subject to this Master Declaration,
(b) Assessment Roll. That portion of the esti-
mated Common Expense assessed against each Owner and his or
her Lot, Unit or other Ownership Interest, shall be recorded
upon an Assessment Roll which shall be regularly kept and
maintained by the the Master Association and available (sub-
ject to the provisions of Section 4.07 hereof) for inspection
upon reasonable notice during customary business hours by any
Owner, a duly authorized representative of such Owner, or a
First Mortgagee or Institutional Mortgagee holding a Mortgage
encumbering the Ownership Interest of such Owner. Said Assess-
ment Roll shall set forth for each Lot, Unit or other Owner-
ship Interest (i) the name and address of the Owner thereof,
(ii) the acreage contained therein if still owned by Declar-
ant or a Builder and not located within any Phase of an Indi-
vidual Project with respect to which Regular Assessment of a
Sub-Association have not yet commenced, (iii) all Assessments
(whether Regular or Special), levied against such Ownership
Interest and the Owner thereof, and (iv) the amount of said
Assessments paid and unpaid. A certificate executed by any
Secretary or Treasurer of the Master Association or any
Managing Agent employed by the Master Association setting
forth the amount and/or payment of any indebtedness assessed
and/or secured by any lien created pursuant to or arising by
reason of this Declaration against any Owner and/or his Own-
ership Interest shall be conclusive and binding upon the
Master Association and the Owner of such Ownership Interest
as to the amount of such Assessment or indebtedness as of the
date of such certificate, in favor of all persons who rely
thereon in good faith. Such a certificate shall be furnished
by the Master Association to any Owner and to any First Mort-
gagee or Institutional Mortgagee holding a Mortgage encumbering
an Ownership Interest upon written request of such Owner or
such Mortgagee at a reasonable fee established by and payable
to the Master Association to cover the cost of complying with
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such request.
(c) Failure to Make Estimate. If, for any fiscal
year, the Board shall fail to make an estimate of Community
Common Expense as provided in Section 4.05(i), then the last
estimate of Common Expense shall be automatically assessed
against each Owner, and such Owner's Ownership Interest and
installment payments (as hereinafter provided) based upon
such estimate shall be payable on the first day of each
month.
(d) Commencement of Regular Assessments. Regular
Assessments against each Lot, Unit or Ownership Interest
(including those owned by Declarant) shall begin on the first
day of the month immediately following the close of escrow
for the sale of the first Lot or Unit within an Individual
Project under the authority of a public report, and there-
after shall be due and payable in advance to the Master
Association by each Owner in equal monthly installments on
the first day of each month commencing with the date on which
each Owner acquires title to his Ownership Interest prorated
to said date (or quarterly or otherwise as determined by the
Board); provided, however, that Declarant (and any Builder
upon prior written notice to Declarant with a copy of such
agreement) shall (i) have the right, but not the obligation,
to enter into an agreement with the Master Association (or
Sub-Association in the case of a Builder) in a manner per-
mitted under Section 2792.10 of Title 10 of the California
Administrative Code to extend the time for commencement of
Regular Assessments applicable to any one or more Lots (other
than for reserves) by subsidization of the costs of
maintaining the Community Common Area (or Individual Common
Areas in the case of an Individual Project) within any one or
more of such Lots and (ii) Declarant (and any Builder may
upon prior written notice to Declarant) shall (in addition to
such right of subsidization) be exempt from the payment of
expenses and reserves directly attributable to improvements
within the Community Common Area or within any Individual
Project as permitted under and for the period provided in
Section 2792.16 of Title 10 of the California Administrative
Code; and the use of such subsidization or exemption by
Declarant (or any Builder as permitted herein) shall not in
any manner diminish with the voting rights of Declarant under
this Master Declaration.
5.02 Special Assessments. Special Assessments may be
levied against Owners and/or their respective Lots, Units or
other Ownership Interests in the following circumstances
only:
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(a) Damage to Master Common Area. In the event of
any damage to or destruction of any portion of the Master
Common Area caused by any grossly negligent or malicious act
or omission of any Owner, any member of his family or any of
his guests, tenants, agents, licensees or employees, the
Master Association shall promptly cause the same to be
repaired or replaced and all costs and expenses incurred in
connection therewith (to the extent not covered or reduced by
insurance proceeds paid to or received by the Master Associ-
ation on account of such damage or destruction), shall be
assessed and charged solely to and against said Owner and his
or her Lot, Unit or other Ownership Interest as a Special
Assessment.
(b) Other Special Assessments Authorized by
this Declaration. Special Assessments may also be levied
pursuant to Section 5.03 (delinquency in payment). Article 10
(capital improvements). Section 12.06 (collection of insur-
ance proceeds), and Article 13 (reconstruction of Common
Area).
(c) Limitations on Special Assessments. Notwith-
standing anything herein contained to the contrary, (i) Spe-
cial Assessments to defray the cost of any action or under-
taking on behalf of the Master Association may not, without
the vote or written consent of a majority of the Owners
(excluding the Declarant after the sale of the first Owner-
ship Interest under the authority of a public report) exceed
in any fiscal year an aggregate of five percent (5%) of the
budgeted gross Community Expenses of the Master Association
and (ii) except with respect to a Builder or any other Owner
of a Lot, Unit or other Ownership Interest which was or could
have been purchased without the authority of a public report.
Special Assessments may not be levied by the Master Association
against a Member to reimburse the Master Association for costs
incurred in bringing such Member and/or such Member's Ownership
Interest into compliance with the provisions of this Declaration.
(d) Notice of Special Assessments; Time of
Payment. All Special Assessments authorized by this Declara-
tion shall be recorded on the Assessment Roll, notice thereof
mailed or delivered to the appropriate Owner or Owners and
said Special Assessment shall thereafter be due and payable
in full to the Master Association within thirty (30) days
from the mailing or delivery of such Notice or within such
extended period as the Board of Directors shall determine to
be uniformly applicable to any such Special Assessment.
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5.03 Delinquent Assessments. If any Regular Assessment
or Special Assessment (as hereinafter provided) assessed to
any Owner is not paid within fifteen (15) days after the same
becomes due, the Master Association shall have the right to
specially assess such Owner in accordance with the provisions
of Section 5.02(b) hereof a late charge in an amount not to
exceed five cents ($.05) per month for each One Dollar
($1.00) of the unpaid portion of any such Assessment payment.
The Board of Directors shall have the right to post within
the Master Common Area the names of any Owners who are more
than thirty (30) days delinquent in the payment of any
Regular Assessment or Special Assessment.
5.04 Liability for Assessments. Each installment pay-
ment of any Regular Assessment, and each lump sum or
installment payment of any Special Assessment, together with
any late charge applicable thereto shall be the personal
obligation of the Owner against whom the same has been
assessed and the collection thereof enforced as provided in
Article 6 hereof. As is more fully described in Section 9.03
hereof, any person who acquires title to any Lot, Unit or
other Ownership Interest through foreclosure as provided in
Article 6 hereof shall be liable only for Assessments
attributable to the Lot, Unit or other Ownership Interest so
acquired which became due and payable after the date of such
foreclosure. In the event, however, of a voluntary convey-
ance of any Lot, Unit or other Ownership Interest by an
Owner, the grantee shall be jointly and severally liable with
the grantor for all unpaid Assessments against the latter
(whether Regular or Special) up to the time of such convey-
ance, without prejudice to the grantee's right to recover
from the grantor the amounts paid by the grantee in discharge
of such obligation.
5.05 No Offsets. All Assessments (whether Regular or
Special) shall be payable in the amount specified by the
Assessment and no offsets against such amount shall be per-
mitted for any reason, including, without limitation, a claim
that the Master Association is not properly exercising its
duties or maintenance or enforcement.
ARTICLE 6
MAINTENANCE OF COMMON FUNDS;
ENFORCEMENT OF ASSESSMENT LIENS
6,01 Deposit; Bank Account. All sums collected,
received and/or held by the Master Association, its Board or
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its Managing Agent from and/or on behalf of the Owners from
Assessments, whether Regular or Special, together with any
insurance proceeds and awards from condemnation and any charges
attributable to the collection thereof or interest earned
thereon shall be promptly deposited by the Board or its
designees in such checking or savings accounts in the name of
the Master Association, in a bank or saving account in the
name of the Master Association, in a bank or savings and loan
association selected or approved by the Board of Directors.
All sums not expended for the maintenance and repair of the
Common Area during the taxable year in which the same was
collected shall be held to provide for subsequent maintenance
and repair of the Common Area. No part of the net earnings
of the Master Association (other than by providing mainten-
ance and repair of the Common Area or by a rebate of excess
Assessments) shall inure to the benefit of any individual
Owner. The Board of Directors, the Managing Agent or such
officers of the Master Association as the Board shall
designate shall have exclusive control of said accounts and
shall be responsible to the Owners for the maintenance o'f
accurate records thereof in accordance with Section 4,07
hereof,
6,02 Commingling; Separate Reserve Accounts, Subject to
the provisions of Section 6,01 hereof, all sums collected
and/or received by the Board of Directors, the Master Asso-
ciation or its Managing Agent from and/or on behalf of the
Owners from Assessments (whether Regular or Special) or
otherwise, together with any charges attributable to the
collection thereof or interest earned thereon, may be
commingled in a single account or accounts without the need
to separately account for each element thereof; provided that
any portions thereof collected and/or received as reserves
for other than current year expenses or maintenance and
operation shall be likewise deposited in an account or
accounts which shall also set forth the nature or purpose for
which each such reserve account has been established. The
Association may make disbursements therefrom only for the
capital or reserve expenditures for which such reserve
account has been established unless the Board by resolution
in the case of an emergency or other special circumstances
which in the judgment of the Board reasonably requires the
use of funds collected as reserves for one purpose to be used
for another purpose authorizes by resolution on a case by
case basis an alternative use for such reserve. Any interest
earned on any funds deposited in accordance with this and the
preceding Section shall, at the option of the Board of
Directors, (i) be applied to reduce the estimate of Common
Expense for the next fiscal year or (ii) if earned on a
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reserve account, be held to further fund such reserve until
required for disbursement for the capital or reserve
expenditure for which the same was established. No Owner
shall have the right to receive interest on any deposits made
in accordance with this Article. Withdrawal of funds from
the Association's reserve account shall require the
signatures of either (i) two (2) members of the Board of
Directors, or (ii) one member of the Board of Directors and
an officer of the Association who is not also a member of the
Board of Directors.
6.03 Enforcement of Liens. The amount of any one or
more delinquent Regular and/or Special Assessments which is
or has been assessed in accordance with this Declaration and
not paid, together with any late charge attributable thereto
and/or other costs (including reasonable attorneys' fees)
incurred in the collection thereof, shall be and the same is
hereby declared to be a lien, with power of sale, upon any
Lot, Unit or other Ownership Interest so assessed when the
Master Association causes to be recorded in the Office of the
County Record of San Diego County, a Notice of Assessment
executed by an authorized representative of the Association,
setting forth the amount of the unpaid Assessment and any
late charges and/or costs attributable thereto, a description
of the Unit, Lot or other Ownership Interest against which
the same has been assessed and the name of the Owner thereof.
No such Notice of Assessment shall be so recorded until the
Master Association or a person designated by the Master
Association shall have first mailed to the Owner of such Lot,
Unit or other Ownership Interest against which such Assess-
ment was assessed at the street address of said Ownership
Interest and/or to such Owner at such other place as said
Owner may designate in a writing delivered to the Secretary
of the Association a Notice of Default in substantially the
form prescribed by Section 2924 et seq., of the California
Civil Code, together with a demand upon such Owner to pay such
delinquent Assessment and any charges and/or costs attribu-
table thereto. If the Master Association has not, within
thirty (30) days from the mailing of said Notice of Default,
received payment in full of all such delinquent Assessment
and any charges and/or costs (including reasonable attorneys'
fees) attributable thereto and/or incurred in the collection
or attempted collection thereof, the Board shall promptly
cause said Notice of Assessment to be recorded as provided
above. Promptly after the recordation of said Notice of
Assessment (unless the lien so created is sooner satisfied or
released), the Board shall cause the above mentioned Notice
of Default to be recorded in the Office of the San Diego
County Recorder and thereafter cause the Lot, Unit or other
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Ownership Interest of the defaulting Owner to be sold in the
manner provided in Section 2924 et seq. of the California
Civil Code as said Sections may from time to time be amended,
or in any other manner permitted by law. At any such fore-
closure sale, the Master Association, or its designee, shall
have the right to credit bid all or any portion of any
delinquent Regular or Special Assessments duly levied against
the Ownership Interest of the defaulting Owner, together with
all late charges, costs and expenses incurred in connection
with such foreclosure including, without limitation, the cost
of any trustee sale or similar guarantee, reasonable attor-
neys' fees and recording charges and, if the Master Associa-
tion shall be the successful bidder, thereafter hold, lease,
mortgage and convey the Ownership Interest so acquired as
permitted in this Declaration. Upon payment (prior to such a
foreclosure) of any delinquent Assessment, together with all
late charges, costs and expenses (including, without limita-
tion, reasonable attorneys' fees, the cost of any trustee, sale
or similar guarantee) attributable thereto and/or incurred in
the collection thereof, or other satisfaction thereof, with
respect to which a Notice of Assessment has been recorded,
the Board shall promptly cause to be recorded a further
notice reflecting the satisfaction and the release of the
lien thereof. Except as otherwise provided in Article 9
hereof, the lien created as provided herein shall be prior to
all other liens recorded subsequent to the recordation of
said Notice of Assessment, and unless sooner satisfied and
released or the enforcement thereof initiated as herein pro-
vided, such lien, once created, shall expire and be of no
further force or effect one (1) year from the date of recor-
dation of said Notice of Assessment; provided that there
shall be excluded from said one (1) year period any period
that enforcement of such lien is stayed by order of court or
operation of law, and further provided that said one (1) year
period may be extended by the Board for not to exceed one (1)
additional year by causing to be recorded in the Office of
the San Diego County Recorder, a written extension of said
Notice of Assessment.
6.04 Enforcement by Suit. The Board may cause a suit at
law to be commenced and maintained against an Owner obligated
to pay any delinquent Assessment (whether Regular or
Special), Any such suit may be brought in the small claims
court, the municipal court or the superior court for San
Diego County, Any judgment rendered in any such action shall
include the amount of any delinquent Assessment or Assess-
ments, together with any late charge applicable thereto,
costs and attorneys' fees. Any suit brought or maintained
under this Section may be brought and maintained without
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foreclosing or waiving any lien herein created.
6.05 Additional Remedies. The remedies and liens
provided in this Article and the enforcement thereof as
herein provided shall be in addition to and not in
substitution for any other rights and remedies whichi thie
Association may have hereunder or by law.
6.06 Waiver of Homestead Exemption. With respect only
to Assessment liens created pursuant to this Article, each
Owner does hereby waive, to the fullest extent permitted by
law, the benefit of any homestead or exemption or redemption
laws of the State of California in effect ac the time any
payment of any Assessment, whether Regular or Special,
becomes due, payable and/or delinquent as herein provided.
Each Owner shall be deemed to be estopped to raise said
homestead or other exemption or redemption in any action or
proceeding to enforce or foreclose such Assessment liens and
such Assessment liens and/or any other obligation of any
Owner arising under this Declaration, the Bylaws or Articles
of Incorporation of the Association may be enforced as if no
homestead were declared or no exemption or right of redemption
asserted, as the case may be.
ARTICLE 7
RESPONSIBILITY FOR MAINTENANCE AND REPAIR
7.01 Maintenance and Repair by Master Association, Thie
Master Association shall be responsible for the maintenance
and repair of all of the Community Common Area to the stan-
dards described in the Master Maintenance Plan attached hereto
as Exhibit "F". Without limiting the generality of the fore-
going nor the description of the powers and duties of the
Master Association and its Board as set forth in Article 4 of
this Declaration, the Master Association shall be required to
accomplish the following in such manner and at times as the
Board shall prescribe:
(a) Clean, maintain and repair all Private
Streets, all Project Entries, all signage, medians,
lighting, landscaping, irrigation slopes, the Trail
System, RV Site and other improvements in or adjacent
to all Private Streets (and in or adjacent to any Public
Streets within the Project the maintenance of which
signage, medians, lighting, landscaping, irrigation and
slopes thereof (including without limitation ^aSik slopes
adjacent to Alga Road, Batiquitos Drive, Poinsettia
Lane and the slopes as shown on Exhibit F-1) has been
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imposed upon the the Master Association by the terms and
provisions of the Master Plan, the LFMP or any conditions
of approval of any Final Maps recorded in connection
with the development of the Project or any portion
thereof), provided, however, that all such cleaning,
maintenance and repair of any Private Streets which are
gated to provide exclusive use thereof for access for
Owners of Lots or Units within an Individual Project
served by such Private Street shall be the responsibil-
ity of the Sub-Association for such Individual Project.
(b) Maintain and repair all slopes (whether manu-
factured or natural) and all landscaping and open space
within the Community Common Area, together with the
Water Conservation Improvements and any and all concrete
terrace drains and 'other drainage, erosion control
improvements, siltation improvements (including any
equipment and/or monitoring program related thereto) and
all trails, paths, overlook areas, signage, benches or
other improvements or structures located or installed
within the Batiquitos Lagoon property located South of
the Project as may be required by the City, or any other
governmental agency.in connection with the land use
approvals for the Project including, without limitation,
conditions imposed upon the development Project by the
California Coastal Commission.
(c) Maintain and/or coordinate with any utility or
similar service company as may be required in connection
with the installation, maintenance, repair or relocation
of all gas lines, electric lines, utility lines and all
easements therefor and all connections thereof located
in or serving the Community Common Area, the obligations
for any portion of which improvements has not been assumed,
undertaken or imposed upon any Builder of any Individual
Project within the Common Area as a part of the land use
or development approvals for such Individual Project or
the provisions of this Declaration,
There are hereby reserved for and established in favor of the
Declarant, its successors and assigns, together with the
right to grant or transfer the same to the Master Associa-
tion, Builders or others, such easements in, over, under and
across all such portions of the Overall Property adjacent to
the Master Common Area as are reasonably necessary to dis-
charge the maintenance and repair obligations of the Master
Association, Builders and others as described herein and such
easements as are reasonably required to enter upon, maintain
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and repair fences and walls at the boundary of Lots not
subject to jurisdiction of a Sub-Association.
7.02 Maintenance and Repair of Individual Projects.
Except as specifically set forth in the Master Maintenance
Plan attached hereto as Exhibit "F" and imposed on the Master
Association by Section 7.01 above, maintenance and repair of
all slopes, trails, drainage and other improvements within
the boundaries of the Lots comprising each Individual Project
including, without limitation, all Private Streets and
private street signs shall be the responsibility of the
Builder thereof and the Sub-Association formed in connection
with each Individual Project and shall be described with
particularity in the Supplemental Declaration for each such
Individual Project.
7.03 Maintenance District. Easements are hereby
reserved for and established in favor of the Declarant,
together with the right to grant the same to the Master
Association, Builders or others in, over and across all'those
portions of the Overall Property subject to use as a part of
the Trail System. The Master Association shall have full
power and authority, with the cooperation of the City, to
establish or create a District as defined in Section 11.09
hereof for the perpetual maintenance of the Trail System or
any other portions of the Community Common Area which are
required to be made available for public use.
7.04 Owner Failure to Maintain, In the event any Owner
fails to maintain, repair or install improvements on any
portion of such Owner's Lot, Unit or other Ownership Interest
as required in any Supplemental Declaration for the Individ-
ual Project of which such Ownership Interest is a part in
accordance with standards established from time to time by
the Architectural Control Committee, the Board of Directors
shall have the right, to cause such maintenance, repair or
installation to be accomplished as follows:
(a) Upon finding by the Board of a deficiency in
such maintenance, repair or installation or other breach
of such obligation, the Board shall give notice of such
deficiency, failure or breach to the responsible Owner
(and to any Sub-association having jurisdiction over the
Individual Project in which such Owner's Dwelling Unit
or Lot is located) which notice shall briefly describe
such deficiency, failure or breach and set a date for
hearing before the Board or a committee selected by the
Board for such purpose which hearing shall be held, if
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called, not less than ten (10) nor more than thirty (30)
days from the date of the notice.
(b) Such hearing shall be conducted according to
such rules and procedures as the Board shall adopt and
which rules and procedures shall provide the Owner with
the right to present oral and written evidence and to
confront and cross-examine adverse witnesses. If the
Board or committee renders a decision against the
responsible Owner, the Board or committee shall further
set a date (reasonably related to the nature of the
deficiency, failure or breach) by which the deficiency,
failure or breach is to be corrected by the responsible
Owner. A decision of the committee may be appealed to
the Board, but a decision of the Board shall be final.
(c) If the deficiency, failure or breach continues
to exist after any time limitation imposed by the
committee and if such decision is not appealed to the
Board, the Board may cause such deficiency, failure
or breach to be performed or cured.
(d) If the Board elects to cause such mainten-
ance, repair or installation to be performed, the Board
shall give ten (10) days' notice to the Owner of such
election within which the Owner is to select a date not
less than fifteen (15) nor more than forty-five (45)
days following such notice by the Board within which
such maintenance, repair or installation shall be per-
formed or cured. If within said ten (10) day period the
Owner has not selected such a date for performance or
cure, the Board may select a date which shall not be
less than ten (10) nor more than sixty (60) days from
the date of the Board's original ten (10) day notice
within which Owner shall perform or cure the deficiency,
failure or breach involved. Unless the Owner and the
Board otherwise agree, such maintenance, repair or
installation shall take place only during daylight hours
on any day, Monday through Friday, excluding holidays,
(e) If the Association pays for all or any portion
of the performance or cure of such maintenance, repair
or installation, or if such Owner does not select a date
as provided above upon which such maintenance, repair,
installation, or cure is to be performed or cured or does
not perform such maintenance, repair or installation on
or before the date set by the Board and if the Owner
does not otherwise agree in writing that entry onto such
Lot, Unit or other Ownership Interest may be had by the
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Master Association or its delegates for such purpose,
the Master Association may seek appropriate judicial
relief, but may not impose a Special Assessment to
recover or reimburse the Master Association for such
cost,
7.05, Private Street Maintenance to City Standards. The
pavement, sidewalks and streetlights located within the
Private Streets shall be maintained by the Builder and
thereafter by the Sub-Association for the Individual Projects
where located in a safe, functional and reasonably attractive
condition that is generally consistent with the standards
adhered to by the City of Carlsbad for the maintenance of
public streets, public sidewalks and public streetlights.
7.06, Storm Drain Maintenance, The surface of the storm
drainage easements shown on Final Maps for the Project and
all underground storm drains and storm drainage disposal
facilities located within said storm drainage easements shall
be maintained (by the Master Association where located within
Community Common Area and by the Builder of and thereafter
the Sub-Association of each Individual Project where located
within an Individual Project) free of any obstructions which
would interfere with the normal collection, passage and
disposal of storm waters accumulating within or flowing
through the master plan area.
7.07, Sewer Facilities Maintenance. Sewer mains and
other sewer facilities located within the private sewer
easements shown on any Final Maps shall be maintained (by the
Master Association if located within the Community Common
Area and by the Builder and thereafter the Sub-Association if
located within an Individual Project) free of any
obstructions which interfere with the normal passage of
sewage to the public sewer system and shall also be
maintained free of unreasonable amounts of inflow or
infiltration; provided, however, that each Owner of a
Dwelling Unit or the Owner of any Non-Residential Lot (as the
case may be) shall be individually responsible for
maintaining any sewer lateral which connects the sewer system
serving a building or structure on his or her Dwelling Unit
or Lot to a sewer main located within the private sewer
easements even though a portion of such sewer lateral is
located within the boundaries of the private sewer easements.
7.08 Emergency Repairs In the event any portion of the
common easements or common area facilities which serve a
particular Dwelling Unit are in need of emergency repairs,
then the owner of the Dwelling Unit served by such common
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area easements or common area facilities shall have the right
(upon written notice to the Master Association and to the
Sub-Association within whose jurisdiction said Dwelling Unit
is located) to unilaterally make such repairs without the
prior approval or concurrence of any other Owners, the Master
Association or Sub-Association, as appropriate, and, after
completion of such repairs, shall also have the right to
recover from the remaining Owners of Dwelling Units within
the same Individual Project all costs of such repairs which
were incurred in good faith and reasonably necessary to
eliminate the emergency which gave rise to the need for such
repairs.
ARTICLE 8
ARCHITECTURAL CONTROL COMMITTEE
8.01 Organization and Membership. In order (i) to
assure compatibility of design, appearance and quality of
buildings and as well as the capacity and coordinated use of
roads, parking, utilities and related infrastructure within
the Project contemplated by the LFMP, the Master Plan and
this Declaration, (ii) provide for the review of Site Devel-
opment Plans by the Architectural Control Committee prior to
submission thereof to the City's Planning Commission and
Council as required as a condition to the approval of the
Master Plan, and (iii) provide standards, guidelines, con-
trols and procedures for the submission, review, approval,
conditional approval or disapproval of plans for (a) con-
struction, installation, repair, restoration, replacement
or alteration of Community Common Area (including, without
limitation, the Private Streets and the sewer, water, elec-
trical, TV and other utility lines, cable, conduit pipe
(including the alignment, sizing, pressure and capacity
thereof) drainage, siltation and erosion control improvements
and the excavation grading, compaction, stabilization, con-
struction and landscaping affected by such work, and (b) the
architectural design, appearance, height, setback orientation
to streets, as well as the selection, installation and modifi-
cation of exterior color schemes, finishes, materials and
quality of materials and exterior lighting and landscaping
within the Aviara Project (collectively herein sometimes
referred to as "Regulated Improvements") there is hereby
established an Architectural Control Committee which shall
consist of three (3) persons. The Declarant shall have the
exclusive right to appoint, remove (with or without cause)
and replace all or any one or more of the members of the
Architectural Committee; provided that during the period
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commencing one (1) year after the date of the close of
escrow for the sale of the first Lot, Unit or other Ownership
Interest within an Individual Project under the authority of
a public report, until (i) ninety percent (90%) of the Own-
ership Interests within such Individual Project have been
sold or (ii) the expiration of fifteen (15) years from the
date of the original issuance of a final subdivision public
report for the sale of the Ownership Interests in an Indi-
vidual Project, whichever first occurs, the Board of Directors
shall have the power to appoint one (1) member to the Archi-
tectural Control Committee which one (1) member must be an
Owner of an Ownership Interest in the Project and may be
removed (with or without cause) and replaced only by the
Board of Directors. Thereafter the Board of Directors shall
have the sole right to appoint all of the members of the
Architectural Control Committee, to remove any one or more
member thereof (with or without cause) and to replace any one
or more of such members. Members appointed to the Architec-
tural Control Committee by Declarant need not be members of
the Master Association.
8.02 Resignation; Vacancies; Term of Office. Any member
of the Architectural Committee may at any time resign from
the Committee upon written notice delivered to the Declarant
or to the Board of Directors, whichever then has the right to
appoint a member to replace the member resigning. Vacancies
on the Architectural Committee, however caused, shall be
filled by the Declarant or by the Board of Directors, which-
ever then has the authority under Section 8.01 hereof. Com-
mencing with the date upon which the Board of Directors shall
have the sole power to appoint all members of the Architec-
tural Control Committee, the Board shall designate one member
to serve for a term of one (1) year; and one member to serve
for a term of two (2) years and one member to serve for a
term of three (3) years. Each said member shall serve the
length of his respective term unless he has resigned or has
been removed from office. Thereafter, the terms of all mem-
bers of the Architectural Control Committee shall be not less
than one (1) year nor more than three (3) years. Any new
member appointed to replace a member who has resigned or
has been removed by the Board of Directors shall serve the
unexpired term of the member having resigned or having been
removed. Members who have resigned, been removed or whose
terms have expired may be reappointed.
8.03 Duties; Committee Rules; Approvals. The Committee
shall consider and act upon any and all proposals, applica-
tions, requests and/or plans (including, without limitation,
proposals and plans for Regulated Improvements submitted for
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its Approval pursuant to the various provisions of this
Master Declaration) and shall perform such other duties as
from time to time shall be assigned to the Architectural
Committee by the Board of Directors including, among other
matters, the inspection of the progress of Regulated
Improvements within the Project to assure, among other
things, conformance with plans, specifications, schedules
and conditions as may have been approved or imposed by the
Committee and the LFMP and development standards set forth in
the Master Plan. The Committee may, from time to time in its
sole discretion, adopt, issue, amend and repeal, by majority
vote of its members, rules, re(gulations and/or guidelines
setting forth, among other matters, the procedures for sub-
mission of requests, proposals, plans, application or other
materials or matters for review, consideration and Approval
of the Committee and for the payment of a fee for reviewing
such plans and specifications, which fee shall be based upon
a schedule of the size and/or other features of the proposed
Regulated Improvement. In connection with any Regulated
Improvement, the Committee may require, among other matters,
the submission of such detail in plans and specifications
submitted for its review and/or Approval as it deems proper,
including, without limitation, plot plans or drawings showing
location of all existing and proposed improvements; location
of parking, drainage systems; erosion control and siltation
improvements, elevation drawings; descriptions of and/or
samples of exterior materials, lighting, glass and/or colors
and proposed construction schedules. Until receipt by the
Committee of any required plans, specifications or other
matters or materials and the payment of any fee applicable to
the review thereof, the Committee may postpone review of any
request, application, plan or proposal submitted for its
Approval. The Committee shall Approve work and/or other
proposals, plans, specifications or matters submitted for its
Approval only if the Committee in its sole discretion deems
that the Regulated Improvements is and/or will be compatible
with the appearance, design, workmanship, quality of mater-
ials and construction within the Project and will not be
detrimental to the appearance of any portion of the Project.
All construction shall be subject to and shall conform to all
applicable laws, ordinances and regulations of the City,
including without limitation, the Development Standards set
forth in the Master Plan and the Committee may condition its
approval upon the posting of a bond or deposit or other
security to assure the timely completion of the proposed
Regulated Improvement.
8.04 Meetings of the Committee. The Committee will meet
from time to time as necessary to perform its duties here-
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under. The Committee may from time to time by resolution
unanimously adopted in writing designate one or more of its
members to take any action or to perform any duties for or on
behalf of the Committee. In the absence of such designation,
the vote of the majority of the members of the Committee or
the written consent of the majority of the members of the
Committee taken without a meeting shall constitute an act of
the Committee.
8.05 No Waiver. No Approval, conditional approval or
disapproval by the Committee of or with respect to any
Regulated Improvement or any other proposal or other matter
submitted to the Committee for same, shall be deemed to
constitute a waiver by the Committee of any right to Approve,
withhold Approval or impose the same or different conditions
of Approval with respect to any similar Regulated Improvement
or matter submitted to the Committee by the same or any other
person.
8.06 Implementation of Approved Recgulated Improvements.
Any Owner shall, as soon as practicable following the receipt
of any Approval from the Committee for any Re<gulated Improve-
ment, satisfy all conditions imposed upon said Approval and
diligently proceed to commence and complete all construction,
alteration and other work authorized and/or required by the
Approval; said commencement to be in all cases, within not
more than one hundred twenty (120) days from the date of
Approval for same. If said Owner shall fail to comply with
the provisions of this Section, any Approval given pursuant
to this Article shall be deemed revoked unless the Architec-
tural Committee upon written request of said Owner made prior
to the expiration of said one hundred twenty (120) day period,
extends the time for such commencement. The Architectural
Control Committee may, for good cause, extend in writing said
one hundred twenty (120) day period.
8.07 Inspection of Work. Upon completion of any Regu-
lated Improvement or other work approved by the Committee,
the Owner having received the approval for said Regulated
Improvement shall promptly give written notice of said com-
pletion to the Architectural Control Committee. Inspection
of the Regulated Improvement and/or all related work and the
correction, if any, of any defects therein shall proceed as
follows:
(a) Within thirty (30) days after receipt of said
notice of completion, the Committee or its duly authorized
representative may inspect or cause the Regulated Improvement
to be inspected. If the Committee finds that such Regulated
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Improvement was not performed, constructed and/or completed
in substantial compliance with the plans and specifications
Approved by the Committee, it shall notify the Owner of the
Unit or Units for which the Approval was obtained of such
non-compliance within said thirty (30) days, specifying the
particulars of non-compliance and shall request said Owner to
cure the same.
(b) If, upon the expiration of thirty (30) days
from the date of such notification of non-compliance, the
Owner notified shall have failed to cure such non-compliance,
the Committee shall notify the Board of Directors in writing
(with a copy to such Owner) of such failure and of the esti-
mated cost of correcting or removing same. If said Owner
shall thereafter fail to cure the non-compliance within a
period of not more than "forty-five (45) days from the date of
referral to the Board, the Board may, at its option, seek
specific performance of the provisions hereof, damages or
other judicial relief (including costs of suit and attorneys'
fees) or cause the non-complying Regulated Improvements 'to be
removed or the non-compliance to be cured and said Owner
shall upon demand, reimburse the Association for all expenses
incurred in connection therewith. If said Owner or Owners do
not promptly repay the Association, the amount of any such
costs and expenses may be recovereid in a judicial proceeding,
together with attorneys' fees and costs of suit.
(c) If for any reason the Committee fails to
notify the Owner or Owners of any non-compliance within sixty
(60) days after receipt of written notice of completion from
said Owner pursuant to this Section, the Regulated Improve-
ment shall be deemed to be in accordance with the plans
and/or specifications approved by the Committee,
8,08 Owner's Failure to Complete Work. It shall be the
obligation of any Owner who receives the Committee's approval
for any Regulated Improvement to commence the work promptly
and complete the same within not more than six (6) months
from the date of the Committee's approval of work unless the
Architectural Control Committee in writing extends the time
to complete such work; or completion is rendered impossible
by reason of strikes, fires or other events beyond the con-
trol of said Owner or Owners. In the event any Owner shall
fail to comply with the provisions of this Section, the
Architectural Control Committee shall notify the Board of
Directors of such failure and the Board of Directors shall
proceed in accordance with the provisions of Section 8.07(b)
above as though the failure to complete the Regulated
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Improvement was a non-compliance with an approval of the
Committee,
8.09 Estoppel Certificates; Mortgages. The Architec-
tural Control Committee shall, within thirty (30) days of a
written request by any Owner therefor, deliver to such Owner
in recordable form if required, an estoppel certificate
executed by two (2) members of the Architectural Control
Committee and certifying with respect to any Regulated
Improvement that as of the date of such certificate either
(i) the Regulated Improvement was Approved and completed in
conformance with the provisions of this Article or (ii) said
Regulated Improvement was not Approved and/or not completed
in compliance with the provisions of this Article and also
specifying the particulars of any such non-compliance. Any
person purchasing an Ownership Interest or any Mortgagee
holding or acquiring any Mortgage encumbering such Ownership
Interest shall be entitled to rely upon any such certificate
with respect to the matters set forth therein, which matters
shall be deemed conclusive as between the Master Association,
any Mortgagee and all of the Owners and Persons deriving any
interest through them.
8.10 Preliminary Approvals. Any Owner wishing to obtain
Approval for a Regulated Improvement to any Lot, Unit or
other Ownership Interest may apply to the Committee for pre-
liminary Approval by submission of such preliminary request,
description and/or drawings of any such Regulated Improvement
in accordance with the then existing rules of the Architec-
tural Committee. It is intended that this preliminary
approval procedure allow any Owner wishing to make a Regu-
lated Improvement an opportunity to obtain guidance concern-
ing the design considerations before expending substantial
sums for plans, specifications and/or other exhibits or
materials required for application for a final Approval. The
Architectural Committee may, from time to time, in its sole
discretion, adopt, issue and amend Committee Rules to imple-
ment such preliminary Approvals; provided, however, that in
no event shall any preliminary Approval be deemed to be a
final Approval authorizing the commencement of any Regulated
Improvement.
8.11 Compensation of Members of Committee. Unless
approved in writing by the Board of Directors, the members
of the Architectural Control Committee shall receive no com-
pensation for services rendered other than reimbursement for
actual expenses incurred by them in the performance of their
duties hereunder.
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8.12 Non-Liability of Committee Members. Neither the
Architectural Control Committee nor any member thereof shall
be liable to the Association nor to any Owner for any loss,
damage or injury arising out of or in any way connected with
the performance of the Committee's duties hereunder, unless
due to willful misconduct or bad faith of the Committee. The
Committee shall review and approve or disapprove all proposals
and plans for Regulated Improvements submitted to it and any
additions, alterations or changes therein, solely on the
basis of the aesthetic considerations and the overall benefit
or detriment which would result in the Project. The Committee
may take into consideration the common plan for the Overall
Property as contemplated by this Declaration, compliance with
the Development Standards in the Master Plan, the LFMP, the
conditions imposed on any land use and development approvals
which may required for a Regulated Improvement, the Access
and Utility Plats and any conflict or interference with
conditions or improvements which have been imposed, con-
structed or installed in connection with other improvements
within the Project, the aesthetic aspects of the architec-
tural design, placement, height and setback of buildings, the
quality of building, materials, building schedules, land-
scaping, color schemes, exterior finishes and materials and
similar features, but shall not be responsible for reviewing,
nor shall Approval of any Regulated Improvement be deemed
approval of any plan or design from the standpoint of struc-
tural safety or conformance with building or other codes,
8,13. Builder Compliance Procedure. Notwithstanding
anything herein contained to the contrary. Declarant (and any
Builder holding a written exemption from the provisions of
this Article executed by Declarant in the form attached
hereto as Exhibit "I") shall be exempt from any and all
provisions of this Master Declaration requiring Approval of
the Architectural Control Committee.
ARTICLE 9
PROTECTION OF LENDERS,
9.01 Notice to Association, Each Owner shall notify the
Board in writing within thirty (30) days of the recording of
any first Mortgage encumbering his Lot, Unit or other
Ownership Interest stating the name and address of the
Mortgagee holding such first Mortgage,
9.02 Notification of Mortgagees. Any Mortgagee holding
a first Mortgage encumbering any Ownership Interest is
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entitled, upon request, to written notification from the
Board of Directors of any default in the performance of the
Owner (mortgagor) of such Owner's obligations under this
Master Declaration, the Bylaws and/or the Articles of the
Association which default is not cured within sixty (60)
days.
9.03 Subordination of Assessment Liens. Any First
Mortgagee or Institutional Mortgagee holding a Mortgage
encumbering any Ownership Interest which acquires title to or
possession of such Ownership Interest through foreclosure or
otherwise pursuant to remedies provided in such Mortgage
(a) will be exempt from any "right of first refusal," whether
now or hereinafter contained in this Master Declaration or
any Supplemental Declaration, and (b) shall take said Owner-
ship Interest free of any claim or lien for unpaid Assess-
ments created under this Master Declaration or any Supple-
mental Declaration (whether Regular or Special) and charges
levied against such Ownership Interest which accrued prior to
the date of such acquisition of title to or possession of
such Ownership Interest, This subordination shall apply to
the lien of any such Mortgage, whether now or hereafter
encumbering an Ownership Interest and shall apply only to
Assessments and charges which became due and payable prior to
the date of such acquisition by foreclosure or otherwise
pursuant to remedies provided in such Mortgage, and shall not
relieve such Ownership Interest, nor any person so acquiring
title or possession thereto, from any liability or lien of
any Assessments and charges thereafter becoming due, made,
levied or assessed, nor from a subse<guently levied Assessment
or charge for a share of any previously unpaid Assessments or
charge against the Ownership Interest foreclosed upon, pro-
vided any such subsequent Assessment is against all of the
Ownership Interests within the Project, including the Owner-
ship Interest foreclosed upon and is divided among all of the
Ownership Interests within the Project in the manner provided
for Regular Assessments,
9.04 Prior Approvals, Unless at least seventy-five
percent (75%) of the holders of Institutional or First
Mortgages on Ownership Interests within the Project (based
upon one vote for each such Mortgage held) have given their
prior written Approval, the Master Association shall not
(i) by act or omission, seek to abandon, partition, sub-
divide, encumber, sell or transfer the Common Area,
(ii) change the method of determining and collecting Assess-
ments established in this Master Declaration nor the obliga-
tions of the Owners for the payment of same nor make any
other material amendment to the Master Declaration, Bylaws or
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Articles of Incorporation, (iii) by act or omission, waive or
abandon the scheme of regulation and enforcement set forth in
this Master Declaration pertaining to architectural design
and exterior appearance and maintenance of Improvements or
the maintenance of the Common Area (iv) fail to maintain fire
and extended coverage on insurable Common Area on a current
replacement cost basis in an amount not less than one hundred
percent (100%) of the insurable value thereof (excluding land
and excavations) based upon current replacement costs, (v) use
hazard insurance proceeds received by or made available to
the Master Association for damage or loss to Common Area for
other than the repair, replacement and/or reconstruction of
same and/or (vi) after the sale of Ownership Interests within
an Individual Project pursuant to a public report, effectuate
any decision of the Master Association to terminate profes-
sional management for th'e Common Area and assume self-manage-
ment thereof. The granting of easements for public utilities
or for other public purposes consistent with the intended use
of the Common Area shall not be deemed a transfer within the
meaning of Subsection (i) above.
9.05 Books, Records; Annual Statement, Any First Mort-
gagee or Institutional Mortgagee holding a Mortgage encumber-
ing any Ownership Interest shall be entitled, upon request,
to (i) examine the books and records of the Master Associa-
tion during normal business hours, and (ii) receive an annual
audited financial statement of the Master Association within
the period days following the end of its fiscal year as
specified in Section 4,05(i) of this Declaration,
9.06 Reserves for Replacements, The Board of Directors
shall be required to include within the Regular Assessments
assessed against each Ownership Interest and payable monthly
(rather than by Special Assessment) amounts reasonably neces-
sary to fund adequate reserves for maintenance, repairs and
replacements of improvements within the Master Common Area.
9.07 Taxes, Assessments and Charges. All taxes.
Assessments and charges which may, under California law,
become liens prior to any Mortgage encumbering an Ownership
Unit, shall relate only to and be a lien only upon the
individual Ownership Interest to which such taxes.
Assessments and/or charges relate and not to the Project as a
whole or the Overall Property.
9.08 No Priority Over Mortgages, No provision in this
Master Declaration shall give any Owner of an Ownership
Interest priority over any rights of any Mortgagee under a
Mortgage encumbering such Ownership Interest with respect to
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any distribution of insurance proceeds or condemnation awards
for losses to or a taking of such Ownership Interest.
9.09 Professional Management. Any agreement for pro-
fessional management for the Common Area within an Individual
Project shall provide (i) for termination by either party
without cause or payment of any termination fee upon thirty
(30) days or less written notice and (ii) for a term of not
longer than one (1) year unless such agreement or renewal
thereof has been approved by vote of the majority of the
Owners otherwise entitled to vote in meetings of the
Sub-Association for such Individual Project.
9.10 Amendments to Declaration, No amendment to this
Master Declaration shall affect the rights of any Mortgagee
under any mortgage made in good faith and for value encumber-
ing an Ownership Interest and recorded prior to the recorda-
tion of such amendment unless such Mortgagee joins in the
execution of such amendment or approves the same in writing.
9.11 Effect of Breach. No breach of any provision
contained in this Master Declaration shall defeat, impair or
invalidate the rights of any Mortgagee holding a Mortgage
encumbering an Ownership Interest provided that all of the
covenants, conditions and restrictions set forth herein shall
be binding upon and effective against any Person who acquires
title to or possession of such Ownership Interest by way of
foreclosure or otherwise pursuant to the remedies provided in
such Mortgage.
9.12 Notice of Condemnation, Damage and Meetings. Upon
request of any First Mortgagee or Institutional Mortgagee
holding a Mortgage encumbering an Ownership Interest, the
Board of Directors shall (i) notify any such Mortgagee of all
meetings of the Master Association (whether regular or
special), and such Mortgagee shall have the right to attend
or be represented at such meeting but shall not have the
right to vote at such meeting unless such Mortgagee has
acquired title to the Ownership Interest encumbered by its
Mortgage through foreclosure or otherwise pursuant to rem-
edies provided in such Mortgage and (ii) notify any such
Mortgagee of any condemnation or substantial damage or
destruction of the Community Common Area.
9.13 Conflict. In the event of any conflict between any
provisions of this Article and any other provisions in this
Master Declaration, the By-Laws or Articles of the Associa-
tion (as the same or any one or more of said documents may be
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amended from time to time), the provisions of this Article
shall control.
9,14 Extension of Lender Protections to Other Mortgagees.
The Board of Directors shall have the right by vote of
seventy-five percent (75%) of the Board to extend the bene-
fits of any one or more of the provisions of this Article to
apply uniformly to other Mortgagees holding Mortgages of
equal lien priority encumbering Ownership Interests and to
execute and/or record any documents reasonably necessary for
such purpose.
ARTICLE 10
CAPITAL IMPROVEMENTS TO COMMUNITY COMMON AREA
Whenever in the judgment of the Board of Directors
capital improvements, including without limitation, repairs,
replacements, painting or other work, is required (or the
same is required by law or in order to comply with provisions
of the LFMP, the Master Plan or any conditions of approval
for the Aviara Project, or any Individual Project, the
responsibility for which compliance has not been assumed by
or imposed upon the Builder thereof) and the cost of said
capital improvements, is (based upon the bids of at least two
(2) reputable and indepencient California licensed contractors
or tradesmen) estimated to be in excess of five percent (5%)
of the amount of the budgeted gross expenses of the Master
Association for that fiscal year, then the Board of Directors
shall notify the Members of the proposed or required capital
improvements and shall, in addition, notify the Members of
whether, in the judgment of the Board, the making of such
capital improvements should be financed or funded out of
(i) Special Assessments, (ii) reserves collected and avail-
able for such purpose, or (iii) otherwise. Following the
recommendation of the Board, any decision to proceed with
such work (unless required by law) shall require the vote
or written assent of a majority of the voting power of the
Members other than the Declarant and if approved, the cost
thereof (to the extent such cost exceeds reserves approved
for such use) shall be specially assessed to each Owner in
accordance with the provisions of Section 5.02(b) of this
Declaration.
Any such capital improvement which (on the basis
of the bids of at least two (2) reputable and independent
California licensed contractors or tradesmen) is estimated
to cost less than five percent (5%) of the budgeted gross
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expenses of the Master Association for that fiscal year may
be approved by the Board of Directors without the prior
approval of the membership and specially assessed to the
Owners in accordance with the provisions of Section 5.02(b)
of this Declaration. Upon approval as described above, the
Board shall cause the proposed capital improvements to be
made and the cost thereof to be paid for from such Special
Assessment, if any, or from reserves or otherwise as approved
as set forth above.
ARTICLE 11
ADDITIONAL EASEMENTS, RESERVATIONS AND COVENANTS
11.01 Utility Easements. The rights and obligations of
the Owners with respect to lines for sanitary sewer, storm
drains, water, electricity, gas, telephone, and other utility
lines, shall be governed by the following:
(a) Wherever sanitary sewer connection and
lines, facilities and/or water connections and
lines, or electricity, gas, telephone lines or
other utility lines are installed within the
Project, which connections or lines, or any por-
tions thereof, lie in or upon any portion of an
Ownership Interest, the Ownership of which is
vested in an Owner other than the Owner of an
Ownership Interest served by any such connections
or lines, the Owner of the Ownership Interest
served by such connections or lines and the Master
Association shall each have the right, and an
easement and right of entry is hereby declared and
established therefor which may be exercised for and
on behalf of such Owner by the Master Association
or its designee, to enter upon such other Ownership
Interest or to have the appropriate utility company
enter thereon to repair, replace and generally
maintain said connections and/or lines as and when
the same may be necessary.
(b) Wherever sanitary sewer connections and
lines, facilities and/or water connections and
lines or electricity, gas, telephone lines or other
utility lines are installed within the Project,
which connections serve more than one Ownership
Interest, the Owner of each Ownership Interest
served by any such connections or lines shall be
entitled to the full use and enjoyment of such
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portions of said connections or lines as may serve
or be needed to serve his or her Ownership Interest,
and in the event any portion of such connection or
lines is damaged or destroyed through the negli-
gence or willful misconduct of any Owner or any of
his employees, servants, agents, invitees, tenants,
guests or members of his family, so as to deprive
other Owners of the full use and enjoyment of any
such connection or lines, then such connections or
lines shall be repaired and/or restored by the Master
Association, its designee or the appropriate utility
company, and any cost incurred in connection there-
with shall be payable by the Owner responsible
therefor to the Master Association on demand and if
not so paid may be recovered by the Master Associa-
tion in an action brought by the Master Association,
together with costs of suit and attorneys' fees,
provided, however, in the event any portion of any
such connections or lines is damaged or destroyed
by a cause other than the negligence or willful
misconduct of one of the Owners, his employees,
servants, agents, guests, tenants, invitees or
members of his family (including ordinary wear and
tear and deterioration from lapse of time) such
connection or lines shall be repaired and/or
restored by the Master Association, its designee
or the appropriate utility company and any cost
incurred in connection therewith shall be paid as a
Common Expense,
(c) The exercise of any right or use of any
easement provided in this Section shall be subject
to the conditions precedent that such exercise
shall be reasonable and in good faith, and all
damage to any Ownership Interest or to any portion
of the Community Common Area resulting therefrom
shall be repaired at the sole cost and expense of
the Person or Persons exercising such right or
using such easement,
(d) The common easements shown on Final Maps
and any facilities now or hereafter constructed and
installed within such easements are not intended
nor have they been dedicated to the public use;
provided, however, that if all or a portion of such
easements are coextensive with a public utility
easement described and depicted on a Final Map,
then such easements and the right of each Owner of
a Lot or Unit within any subdivision created by
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such Final Map to the use and enjoyment of such
easements shall be subordinate to the public's
rights to the use and enjoyment of such public
utility easement.
11.02 Cable Television or Antenna System. Notwith-
standing the provisions of Section 3.01, there is hereby
reserved to and for the benefit of the Declarant, its
successors and assigns, together with the right to grant
and transfer the same to the Master Association or others,
the right to place and install or cause to be placed or
installed, in, under, over, across and through the Owner-
ship Interests and the Community Common Area and Individual
Projects a community cable, antenna television system or
satellite master antenna television system and thereafter to
own, lease, operate and "maintain such community cable and/or
antenna or satellite television system together with the
right to enter upon the Ownership Interests and the Community
Common Area and Individual Projects to service, maintain,
repair, reconstruct and replace any lines, equipment or *
facility forming a part of such community system; provided,
however, that the exercise of the rights hereby reserved does
not unreasonably interfere with the reasonable use and
enjoyment of the Owners of the Ownership Interests.
11.03 Reservation of Oil and Mineral Rights. There is
hereby reserved to and for the benefit of Declarant, its
successors and assigns, together with the the right to grant
and transfer the same, all oil, gas, minerals and other
hydrocarbon substances, including all rights incidental to
such ownership, now or at any time hereafter situated in and
under any portion of the Project lying below a depth of 500
feet measured vertically from the surface of the Overall
Property together with the right to explore for, extract and
produce the same and to enter the subsurface of any portion
of the Project all for said purposes, without, however, any
right to enter upon the surface of the Overall Property or
into any portion of the subsurface thereof, lying above a
depth of 500 feet, measured vertically from any portion of
the surface of the Overall Property.
11.04 Community Common Area Easements. There are hereby
reserved and established to and for the benefit of each Owner
of each Ownership Interest (including those owned by Declar-
ant) non-exclusive easements appurtenant to each Ownership
Interest for ingress, egress, use and enjoyment over the
Community Common Area. Such easements shall pass automa-
tically to each Owner of an Ownership Interest as an incident
to the grant thereof but subject in all events to the rights
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of the Master Association, Declarant and other Owners as set
forth in this Master Declaration.
11,05 Drainage Easements. There are hereby reserved to
Declarant, its successors and assigns, together with the
right to grant or transfer the same to others, easements in,
over, under, across and through the Ownership Interests, the
Community Common Area and Individual Projects to grade,
establish and maintain (in conformance with the Master Plan
and the Master Maintenance Plan) drainage patterns and facil-
ities for the benefit of the all Ownership Interest in the
Project and for the Overall Property. Upon establishment and
completion of such drainage patterns and facilities, the
Project and each of the Ownership Interest shall be and
remain subject thereto and the same may not be altered except
with the written consent of the Declarant or the Architec-
tural Control Committee.
11,06 Easements for Completion, Marketing and Sale.
There are hereby established and reserved to and for the
benefit and use of the Declarant, its successors and assigns,
together with the right to grant and transfer the same, such
easements, rights and rights of use in, over, under, across
and through the Project as are or may be from time to time
reasonably necessary for Declarant, its agents, architect,
contractors, engineers, employees, salespersons, and/or their
respective agents, employees and/or representatives to exca-
vate, grade, construct, build, develop, landscape and com-
plete all portions of the phased development of the Aviara
Project described in the recitals to this Master Declaration
pursuant to the common plan described therein, the LFMP, the
Master Plan and the Development Standards (including, but not
limited to, the installation and maintenance of electrical,
telephone, television antenna or reception system, water,
gas, sanitary sewer lines and drainage facilities, the place-
ment and storage of building materials and equipment, the
placement of temporary buildings, trailers and/or similar
structures or equipment) and to advertise, show, market, sell
and/or lease unsold or unleased Ownership Interests. Without
limiting the generality of the foregoing, the creation,
reservation and establishment of the easements, rights and
rights of use described above are expressly declared to
include, the right of Declarant to maintain within any and
all Phases of the Overall Property, one or more fully
equipped and staffed sales offices, to operate, maintain and
show Ownership Interests, Unless extended by vote of
two-thirds (2/3) of the Members of the Master Association
(excluding the Declarant) as evidenced by a recorded written
notice executed by the president and two members of the
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Board, the easements established by this Section shall expire
automatically ten (10) years after the close of escrow for
the sale of the first Lot, Unit or Ownership Interest under
the authority of a public report.
11.07 Establishment of Easements. Each of the easements
reserved and established by this Master Declaration (includ-
ing without limitation all easements established for the
benefit of and enforceable by the City) shall be deemed to be
established upon the recordation of this Master Declaration
and shall run with the land for the use and benefit of all of
the real property to which they relate, superior to all other
encumbrances which may thereafter be recorded against or in
favor of the Aviara Project or any portion of the Overall
Property annexed to the Project.
11.08 Easement for the Benefit of Golf Course. Easements
are hereby reserved and established over those portions of
the Lots ("Golf Course Lots") within the Project which are
conti<guous to the the fairways, rough and playing areas of
the Golf Course for the benefit of the Owner of the Golf
Course and its members and other persons authorized to use
and maintain the Golf Course as are reasonably necessary to
permit Golf Course play, maintenance and repair and are
customarily associated with, normally expected or commonly
arising out of the proximity of golf course play adjacent to
residential Lots including without limitation, the burden,
inconvenience, damage or injury commonly arising or normally
expected in connection with such activity. Each Owner of a
Lot contiguous to the fairways, rough and playing areas of
the Golf Course does hereby waive any and all right of action
and/or right to make claim for damage or injury against the
Master Association, its directors, officers, agents, or
employees, the owner and operator of the Golf Course, its
directors, officers, agents, or employees, the Declarant, its
directors, officers, agents, or employees and the architect,
designers, and builders of the Golf Course and of the Builder
of the Individual Project within which such Owner's Lot is
located and against any Sub-Association and each director,
officer, agent and employee of such Sub-Association as may be
formed in connection with such Individual Project arising out
of such activities. This waiver shall be binding upon each
and every Owner of a Golf Course Lot whether or not
separately set forth or referred to in the documents of sale
and/or deed to such Golf Course Lot, Owners of Golf Course
Lots shall not enter upon the Golf Course from their Lot nor
hit golf balls from such Lots onto the Golf Course.
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11,09 Assessment District Financing. The Master Asso-
ciation shall have the full power and authority to establish,
form, join in and cooperate with the City, the Declarant
and/or each Builder in the formation of any "District", as
defined in the "Integrated Financing District Act" (Sections
53175 et. seq. of the California Government Code), the
"Landscape and Lighting Act of 1972" (Sections 22500 et. seq.
of the California Streets and Highways Code) or any similar,
or successor legislation to provide for the benefit of the
Association, the Community Common Area, the Declarant, and
each Builder and Owner of a Lot, Unit or other Ownership
Interest within the Project, for the construction and/or
maintenance of any facilities, improvements and infrastruc-
ture permitted under or described in said Act, together with
the right to dedicate and encumber Community Common Area with
the lien of such financing and collect amounts required to
pay such obligation as a Regular Assessment,
ARTICLE 12
INSURANCE
12,01 Types of Insurance. The Master Association shall
(to the extent reasonably available) obtain and continue in
effect, with the premiums therefor being paid out of Common
Funds, the following types of insurance:
(A) Property. A master or blanket policy of
property insurance naming as insureds the Master
Association, the Declarant and all Owners naming
the Master Association, as trustee, for all of the
named insureds as their interests may appear and
containing, as a part thereof, the standard fire
and special extended coverage endorsement with
replacement cost coverage for all structures and
improvements within the Common Area for and against
the following:
(i) Loss or damage by fire or other
risks covered by the special extended coverage
endorsement.
(ii) Loss or damage to or as a result of
theft, vandalism and malicious mischief.
(iii) Such other risks, perils or cover-
age, including but not limited to director and
officer liability insurance.
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Said master policy or the endorsements made a part
thereof shall (to the extent reasonably available):
(iv) contain a waiver by said insurer of
any and all rights of subrogation against all
Owners (including without limitation
Declarant, the Owner of the Resort Hotel, the
Golf Course and Sports Center and each Builder
and their respective directors, officers,
agents and employees the Master Association,
its Board (and each member thereof), its
officers and employees (and each of them), any
Managing Agent employed by the Master
Association,
(v) provide that said master policy
cannot be cancelled, suspended, or avoided in
whole or in part by reason of any act, omis-
sion or breach of any covenant, condition or
restriction contained herein by the Master
Association, its Board of Directors, officers.
Managing Agent, or any one or more Owners
without the prior written demand upon the
Master Association to cure such breach and
that in no event shall said policy be
cancelled, invalidated, suspended or avoided
in whole or in part for any reason without at
least thirty (30) days' prior written notice
from the insurer to the Master Association,
Declarant and to any Owner or Mortgagee who
shall have filed a written request with said
insurer for such notice,
(vi) provide that the Board of Directors
or its duly authorized representatives shall
have the exclusive authority to represent all
of the Owners with respect to adjustment of
any and all losses covered by said policy.
(vii) provide that any "non control" pro-
vision in said policy is excluded or super-
seded, by an endorsement so that the insurance
obtained pursuant to this Article 12 shall not
be prejudiced by any act or neglect of any of
the insureds when such act or neglect is not
within the knowledge and control of the
insureds collectively and shall likewise not
be prejudiced by any failure of the insureds
collectively to comply with any covenant or
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condition with regard to any portion of the
Master Common Area or other portion of the
Project over which the insureds collectively
have no control.
(viii) provide that all insurance proceeds
payable under said master policy or the
endorsements made a part thereof obtained by
the Master Association shall be paid to the
Master Association, as trustee (or to any
insurance trustee as may and/or appointed by
the Board of Directors), to be held and
expended as provided in this Master Decla-
ration for the benefit of the Master Asso-
ciation and its members and the insurer shall
have no right 'to elect to make a cash settle-
ment in lieu of replacement, repair or recon-
struction unless approved by the vote or
written consent of seventy-five percent (75%)
of the Members.
Said master policy or the endorsements made a part
thereof may also:
(ix) provide for deductibility feature in
such amount as the Board may from time to time
approve, and
(x) provide for a biannual insurance
review which shall, if necessary, include an
appraisal of the structures and improvements
within the Master Common Area by a represen-
tative of the insurer issuing said master
policy, and assessed to the Members as part of
Regular Assessments.
(B) Public Liability. A comprehensive public
liability and property damage policy naming as
insureds the Master Association, together with each
of its Directors, Officers and employee of the
Master Association, its Managing Agent, if any, in
their capacity as such and all of the Owners
(including, without limitation. Declarant, the
Owners of the Resort Hotel, the Golf Course and the
Sports Center and their respective directors,
officers, agents and employees) with respect to any
liability arising out of or incident to the owner-
ship, operation, management, maintenance, repair
and/or use of the Master Common Area by the Asso-
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ciation, its directors, officers, agents and
employees, all Owners and their respective guests,
employees, invitees, tenants and occupants of the
Project. Said policy or the endorsements made a
part thereof shall provide immediate protection
with a combined single liability limit (bodily
injury and property damage) of not less than One
Million Dollars ($1,000,000.00) for each occur-
rence. Said comprehensive public liability and
property damage policy shall also include but shall
not be limited to:
(i) insurance against bodily injury,
death or property damage occurring in, on or
about any portion of the Master Common Area
and Individual Project common area.
(ii) a "cross-liability" or "severability
of interest" endorsement to provide that said
policy (without increasing the limits of
liability thereunder) shall be interpreted as
if a separate policy was issued to each
insured so as not to prejudice the rights of a
named insured against another named insured or
otherwise exclude coverage to an Owner by
reason of a negligent act of another insured.
(iii) insurance against personal injury
with any employee exclusion deleted.
(C) Workmen's Compensation. Workmen's com-
pensation and employer's liability insurance to the
extent necessary to comply with applicable laws.
12,02 Insurance on Individual Projects and Separate
Ownership Interests, Each Owner (including without limi-
tation each Builder at his own cost and expense) shall be
solely responsible to obtain and keep in force liability and
other insurance in connection with his Ownership Interest and
the contents and other improvements located on or within his
Ownership Intererst, All such policies, however, must con-
tain waivers of.subrogation of claims against the Master
Association, its directors, officers, agents and employees
and all other Owners (including, without limitation, the
Declarant, and the Owners of the Resort Hotel, the Golf
Course and the Sports Center and their respective directors,
officers, agents and employees) with respect to any and all
loss or damage covered by such insurance.
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12.03 Additional Insurance and Bonds. The Master Asso-
ciation may also purchase with Common Funds such additional
insurance and/or bonds as it may, from time to time, deter-
mine by the Board to be reasonably necessary or desirable,
including but not limited to fidelity bonds naming each
member of the Board of Directors, the officers of the Master
Association, any Managing Agent and such other persons as may
be responsible for handling funds collected and/or received
by or on behalf of the Master Association. Such fidelity
bonds shall be in such amounts as the Board shall determine
and shall contain waivers of any defense based upon exclu-
sions of persons serving without compensation and shall also
contain provisions prohibiting the cancellation, termination
or modification thereof for any reason without at least
thirty (30) days prior written notice to the Master
Association,
12.04 Choice of Contractor. With respect to any repairs
or reconstruction for which proceeds of insurance are paid or
are payable to the Master Association, as trustee or other-
wise, the Board of Directors shall have the right to desig-
nate or approve the contractor to perform said repairs or
reconstruction.
12.05 Choice of Insurance Company. All policies of
insurance obtained by the Master Association or its Board of
Directors as provided in this Article 12 shall be obtained
from an insurance company qualified to do and doing business
in the State of California and holding a Policy Holder Rating
of "A" and a Financial Category of Class 8 or better by
Best's Insurance reports and may be obtained from one or more
such companies,
12.06 Expense of Collecting Insurance Proceeds. All
costs and expenses incurred by the Master Association in the
collection adjustment and/or recovery of proceeds of any
insurance policy purchased or maintained by the Master
Association as provided in this Article 12 (including but not
limited to any and all fees of attorneys, appraisers,
architects and adjusters) shall be specially assesseid to each
Owner in accordance with the provisions of Section 5.02(b)
hereof.
12.07 Insurance Requirements for Individual Projects
and Ownership Units Within Individual Projects. The
Supplemental Declaration required for each Individual Project
shall require the Individual Homeowner's Association formed
as the governing body therefor to obtain and continue in
effect (for all common areas and common area structures con-
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taining dwellings or units) a master or blanket policy for
the benefit of the Owners of the Lots or Units within such
Individual Project which policy shall (a) provide insurance
against the same risks and perils identified in Section 12.01
hereof, (b) designate as additional insureds, the Master
Association, the Individual Homeowners Association, all
Owners and all other persons required to be so named in the
master policy described in Section 12.01 hereof (including,
without limitation, the Declarant, the Owner of the Resort
Hotel, Golf Course and Sports Center and their respective
directors, officers, agents and employees) and (c) provide
(in the case of damage or destruction to the improvements and
structures covered by such insurance) that the proceeds from
such insurance must be used to repair, rebuild or reconstruct
the structures and improvements so insured. Individual
policies of insurance obtained by Owners of individual Lots,
Units and Dwellings (i.e., generally limited to the personal
property of individual Owners and the contents and improve-
ments located within such Ownership Interests) shall be in
such form and contain such endorsements as will assure such
policies are not inconsistent with the provisions of Section
12.02 of this Article.
ARTICLE 13
DAMAGE OR DESTRUCTION TO COMMON AREA; REBUILDING
13.01 Determination and Collection of Insurance; Bids;
Commencement of Repair. As soon as possible after the damage
or destruction of structures or improvements within the
Common Area, the Board of Directors shall (i) determine the
extent of such damage and make, prepare and/or file all
necessary insurance claims or proofs of loss, (ii) obtain
bids and/or plans from at least two (2) reputable contractors
and/or architects, licensed in California, which bids and/or
plans shall set forth in detail the work required to repair,
reconstruct and restore the damaged or destroyed portions of
the Common Area to substantially the same condition as it
existed prior to such damage and the itemized cost of such
work, (iii) determine the amount and collect all proceeds of
insurance available to the Master Association, or the Board,
for the purpose of effecting such repair, reconstruction and
restoration and (iv) designate in writing an officer or
director of the Master Association to act as trustee in whose
name the proceeds of such insurance shall be made payable,
which trustee shall be authorized to distribute such proceeds
at the direction of the Board (or if objection is raised,
then pursuant to order of court or decision in arbitration,
as the circumstances may require). Repair, reconstruction
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and/or restoration of the damaged Common Area shall be
subject to compliance with all applicable ordinances and
regulations of the City and shall commence as soon as
possible after receipt by the Master Association of the
insurance proceeds available to the Master Association, as
trustee or otherwise, to effect such work, but in no event
later than sixty (50) days from the receipt thereof, provided
that if whether conditions, strikes, unavailability of
building materials or similar events beyond the control of
the Board prevent or make impracticable commencement by such
date, said date shall be extended until work can commence,
provided that no such extension shall be for a period longer
than an additional one hundred twenty (120) days. The Board
of Directors shall have the authority to engage the services
of such architects, engineers, contractors, adjusters or
other professional persons as it deems reasonably necessary
to assist the Board in competently discharging its duties
under this Section.
13.02 Insurance Proceeds Sufficient to Rebuild. In the
event of damage or destruction to structures or improvements
within the Common Area and the insurance proceeds received by
the Master Association, as trustee or otherwise, are suffi-
cient (when added to any reserves available for such repairs,
reconstruction or restoration) to effect the total repair,
reconstruction and restoration of the damaged or destroyed
Common Area, then the Master Association, in accordance with
the provisions of this Article 13, shall cause the damaged
portions of the structures or improvements within the Common
Area to be repaired, reconstructed and restored to substan-
tially the same condition as the same existed prior to such
damage or destruction.
13.03 Insurance Proceeds Within Eighty-Five Percent
of Being Sufficient to Rebuild. In the event of damage or
destruction to structures or improvements within the Common
Area and the insurance proceeds received by the Master
Association, as trustee or otherwise, to effect such repair,
are within eighty-five percent (85%) of being sufficient
(when added to any reserves) available for such repairs,
reconstruction or restoration) to cover the cost of such
repair, reconstruction and restoration, the Master Associ-
ation shall promptly cause such damage to be repaired,
reconstructed and restored in substantially the same
condition as existed prior to such damage, and the difference
between the insurance proceeds (when added to any of the
funds parenthetically described above) received by the Master
Association for such purpose and the actual cost of such
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repair, reconstruction and restoration shall, in accordance
with Section 5.02 hereof, be specifically assessed to Owner.
13.04 Insurance Proceeds Less Than Eighty-Five Percent of
an Amount Needed to Rebuild. If the proceeds of insurance
received by the Master Association, as trustee or otherwise,
are insufficient (when added to any reserves authorized,
collected and held in accordance with the provisions of the
Declaration which are otherwise available for such repair,
reconstruction or restoration) to cover at least eighty-five
percent (85%) of the cost of repair, reconstruction and
restoration to the damaged or destroyed Common Area, then
seventy-five percent (75%) of the Owners otherwise entitled
to vote shall by vote at a duly held meeting of the Master
Association (i) determine whether to repair, reconstruct and
restore the damaged or destroyed Common Area and specially
assess all of the Owners in accordance with Section 5.02
hereof, for all additional funds needed for such purpose or
(ii) determine not to repair, reconstruct or restore the
damage to the Common Area.
13.05 Duties of Board During Reconstruction. If repair,
reconstruction and restoration are to take place in accor-
dance with the provisions of this Article 13, the Board shall
(i) enter into a written contract with a contractor licensed
in California and submitting the lowest reasonable bid for
such repair, reconstruction and restoration, (ii) cause the
insurance proceeds available for said work and funds
collected by reason of Special Assessments or otherwise
authorized and available therefor to be disbursed in appro-
priate progress payments, through a builder's control
company, or through an insurance trustee appointed by the
Board for such purpose at a bank or trust company, and
(iii) take all steps necessary to ensure the commencement,
diligent prosecution and completion of such repair, recon-
struction and restoration in a lawful, workmanlike manner at
the earliest possible date.
13.06 Determination Not to Rebuild. If a determination
is made (whether by affirmative vote, failure to vote or
failure to commence repair within the period or any extension
thereof permitted under Section 13.01) not to repair, recon-
struct or restore any damage or destruction to the Common
Area, then the insurance proceeds received by the Master
Association, as trustee or otherwise to effect such repair
(less any amounts expended by the Board in the discharge of
its duties under Section 13,01 hereof and expended in clear-
ing debris and landscaping the Common Area) shall, as deter-
mined by the Board in its sole discretion, be (i) retained by
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the Master Association and used to offset subsequent Common
Expenses of the Master Association, or (ii) divided equitably
among and disbursed to the then Owners of the Ownership Units
and/or to their respective Mortgagees, as their interests
appear.
.SiRTICLE 14
EMINENT DOMAIN
The term "taking" as used in this Article shall
mean condemnation by eminent domain or sale under threat of
condemnation. In the event of a threatened taking of all or
any portion of the Community Common Area, the Board and such
persons as the Board shall have the exclusive authority to
represent all of the Owners in connection with such taking.
The Board shall act in its sole discretion with respect to
any awards being made in connection with the taking and shall
be entitled to make a voluntary sale to the condemnor ifi lieu
of engaging in a condemnation action. Any awards received on
account of the taking shall be made payable to an officer or
director of the Master Association as designated in writing
by the Board as a trustee for such purpose with authority to
disburse any such award at the direction of the Board (or in
the event of an objection pursuant to order of court or deci-
sion in arbitration, as the circumstances may require). In
the event of a taking of less than all of the Common Area,
the rules as to restoration and replacement of the Common
Area and the improvements thereon shall apply as in the case
of destruction of improvemients upon the Common Area. In the
event of a total taking, the Board may in its sole discretion
retain any award in the general funds of the Master Associa-
tion or distribute equitably all or a portion thereof to the
Owners, subject to the prior rights of Mortgagees who are
entitled to receive an Owner's portion of such award pursuant
to the terms of their Mortgages.
ARTICLE 15
REMEDIES FOR BREACH OR DEFAULT
15.01 Remedy at Law Inadequate. It is hereby expressly
declared and agreed that if the remedy at law to recover
damages for the breach, default or violation of any of the
covenants, conditions, restrictions, reservations, easements,
rights, and equitable servitudes established by this Master
Declaration is inadequate, and the failure of any Owner,
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Builder, tenant, occupant or user of any Ownership Interest
to comply with each and all of the terms and provisions of
this Master Declaration, the rules, regulations, decisions,
resolutions and By-Laws and Articles of the Master Associ-
ation as adopted and/or amended from time to time, may be
specifically enforced or enjoined by appropriate legal pro-
ceedings instituted by Declarant, any Owner, the Master
Association, its officers, or Board of Directors or by their
respective successors and assigns.
15.02 Costs and Attorneys' Fees. In the event of any
litigation or arbitration arising out of a breach or viola-
tion of any of the provisions of this Master Declaration, the
prevailing party shall be entitled to recover costs and
expenses, including reasonable attorneys' fees, incurred in
connection therewith.
15.03 Cumulative Remedies. The respective rights and
remedies provided by this Master Declaration or by law or
available in equity, shall be cumulative and the exercise of
any one or more of such rights or remedies shall not preclude
or affect the exercise, at the same or at different times, of
any other such rights or remedies for the same or different
violations, defaults or breaches or for the same or different
failures of the Owners or others to perform or observe any
provision of this Master Declaration.
15.04 Failure Not A Waiver, The failure of Declarant,
the Board of Directors, the Master Association or its off-
icers, to enforce any of the covenants, conditions or
restrictions, limitations, reservations, easements, rights,
rights-of-way, liens, charges or equitable servitudes con-
tained in this Master Declaration shall not constitute a
waiver of the rights to enforce the same thereafter, nor
shall such failure result in or impose any liability upon the
Declarant,
15.05 Suspension of Voting Rights. In the event any
Owner shall fail for a period of more than forty-five (45)
days to pay when due any Regular Assessment and/or any
Special Assessment, said Owner shall not be entitled to vote
upon any matter put to a vote at any regular or special
meeting of the Master Association nor shall any consent of
such Owner be considered in connection with any matter for
which approval by vote or written consent may be required
under this Declaration or under the By-Laws of the Master
Association. For the purposes of this Section, the Master
Association, its Board of Directors or a duly authorized
designee of either shall, promptly following the expiration
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of the forty-fifth (45th) day of default in payment of any
such Assessment or Assessments, notify or cause to be noti-
fied said Owner in writing of such failure and cause a copy
of said notice to be sent to the Secretary of the Master
Association and to any Mortgagee known to the Master Associa-
tion as the holder of any recorded first-lien Mortgage
encumbering said Owner's Ownership Interest.
15.06 Disputes; Determination by the Board. Any dispute
or question involving any action, omission, interpretation,
application or enforcement of any of the provisions of this
Master Declaration shall be determined promptly by the Board
of Directors, who shall consider and weigh such written and
such oral statements as may be submitted to the Board in
connection therewith. Except with respect to a loss or
forfeiture which may result from (i) a judgment or order of a
Court of competent jurisdiction, (ii) an order or decision
arising as a result of arbitration, or (iii) the exercise of
the foreclosure provisions contained in Article 6 hereof for
the enforcement of liens created to enforce the payment of
Assessments duly levied hereunder, the rights of the Master
Association and/or the Board of Directors to suspend the
voting rights or otherwise discipline any Owner by reason of
any breach of or default by such Owner in compliance with the
provisions of this Master Declaration, the By-Laws and
Articles of the Master Association and/or any rules and
regulations adopted or amended from time to time by the
Master Association and/or the Board of Directors to regulate
and/or govern the use, maintenance, management and occupancy
of all or any portion of the Overall Property (collectively
the "governing instruments"), shall be limited so as to
require the giving of reasonable notice to the Owner or
Owners whose breach or default is in issue and an opportunity
for such Owner or Owners to be heard by the Board of
Directors before any decision to impose any monetary penalty,
suspend the voting rights or otherwise discipline such Owner
or Owners is reached. For the purposes of this Section,
reasonable notice of the time and place of any meeting of the
Board of Directors at which the issue of any such breach of
or default by an Owner is to be heard shall mean (except in
the event of circumstances likely to cause or result in
serious injury to the health or safety to any resident or
occupant within the Overall Property unless immediate cor-
rective action is taken) not less than five (5) calendar
days. Any decision made by the Board of Directors on any
matter or issue brought before the Board of Directors for
hearing pursuant to this Section shall be binding upon all
Owners and Persons concerned.
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15.07 Enforcement of Bonded Obligations. In the event
portions of any Community Common Area improvements of the
Aviara Project have not been completed prior to the issuance
of a final subdivision public report for the Project,
Declarant may elect to assure (or cause any Builder required
to complete any such Community Common Area improvements to be
located within or built in connection with any Individual
Project to assure) the lien-free completion of said Community
Common Area improvements (i) by filing a bond as permitted by
Section 11018.5(a)(2)(A) of the California Business and
Professions Code which bond shall name the Master Association
(and any Sub-Association if required) as obligee and commit
the Declarant (or such Builder) to the lien-free completion
of said Common Area as described in a planned construction
statement attached to any such bond, with the following
procedures to be followed, if necessary, to enforce the
obligations of the Declarant (or any such Builder) and the
surety under any such bond:
(1) The Board of Directors shall consider and vote
on the question of action by the Master Association to
enforce the obligations under any such bond with respect
to any Common Area improvement for which a Notice of
Completion has not been filed within sixty (60) days
after the completion date specified in the planned
construction statement for that specific Common Area
improvement provided, that if the Association has given
an extension in writing for the completion of any such
Common Area improvement, the Board of Directors shall
consider and vote on the aforesaid question if a Notice
of Completion for such specific common area improvement
has not been filed within thirty (30) days after the
expiration of any such extension;
(2) In the event of (a) a decision by the Board of
Directors not to initiate action to enforce the obliga-
tion under any such bond or (c) the failure of the Board
of Directors to consider and vote on the question of the
enforcement of the obligations under any such bond, the
Board shall cause a special meeting of the Members of
the Master Association to be held not less than thirty-
five (35) ?iays not more than forty-five (45) days after
the receipt by the Board of Directors of a petition for
the convening of such special meeting signed by five
percent (5%) of the Owners entitled to vote. In the
event of such special meeting, the vote of a majority of
the voting power of the Master Association residing in
Members other than the Declarant (and any such Builder)
to take action to enforce the obligation under any such
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bond shall be deemed to be the decision of the Master
Association and the Board of Directors shall thereafter
implement said decision by initiating and pursuing
appropriate action in the name of the Master Association
or (ii) by such other alternative plan as may be approved by
the California Department of Real Estate.
15.08 Enforcement by City. City, following a
determination of the City Engineer or Director or Utilities
and Maintenance that the Owners of any Lots, Units or
Ownership Interests are in default of their duties and obli-
gations to maintain common easements shown on any Final Map
or the common facilities located therein in the manner herein
described, shall have the right, but not the obligation or
duty, to enter upon such common easements and to undertake
any work necessary to maintain such common easements or
common facilities, all for the account of and at the cost and
expense of the lot owners. Provided, however, that prior to
entering upon the common easements for the purpose of
undertaking work necessary to maintain the common easements
or common facilities, the City shall present to Declarant,
the Master Association or any Sub-Association, as
appropriate, a written notice which shall describe the nature
of the default, shall set a date not less than 90 days from
the date of the presentation of such notice within which such
time the Declarant, Master Association or any Sub-Association
may cure such default and shall specifically advise such
entities that upon the failure to cure such default within
the time frame set forth in the notice, the City may enter
upon such common easements and perform such maintenance work
to the common easements and common facilities, all for the
account of and at the cost and expense of said entities as
applicable. Provided further, that in the event that any
such person or entity, following receipt of such notice,
wishes to protest determination of such default, such person
or entity shall be entitled to appeal in writing such
determination to the City Council within ten (10) calendar
days of the mailing of the notice,
(a) In the event the City shall enter upon the
common easements and undertake the work maintaining the
common easements or the common facilities following a
determination by the City that the Declarant, Master
Association or Sub-Associations are in default of their
duties and obligations, then each Owner shall be liable
to and shall reimburse City his or her proportionate
share of the costs associated with such default in
accordance with Article 5,
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(b) In the event a Lot Owner shall fail to reim-
burse City for his or her proportionate share of any
costs incurred by the City in curing said default, then
City shall be entitled to make such reimbursable costs a
lien upon the Lot, Unit or Ownership Interest of the
Owner benefitted by such work by recording a notice that
it has incurred reimbursable costs under the terms of
this Master Declaration in the Official Records of the
San Diego County Recorder. In addition to stating that
costs have been incurred by City under the terms of this
declaration, such notice shall set forth the amount of
such reimbursable costs, the date they became due and
payable, and shall state that until paid such costs are
paid. Moreover, in the event a the Owner of a Lot, Unit
or Ownership Interest fails to reimburse the City for
his or her proportionate share of any costs incurred by
the City in curing said default, then City may, in
addition to recording a lien against such Owners, Lot,
Unit or Ownership Interest, file a legal action seeking
recovery of such costs; provided that, if the City'is
the prevailing party in such an action, then City shall
be entitled, as part of the settlement or judgment
entered in such action, to interest on such costs
computed at the legal rate plus reasonable attorneys
fees in an amount agreed to or fixed by the court. In
addition to the foregoing, the City may seek equitable
relief.
(c) City's right to enforce the duties and
obligations of Declarant, the Master Association and any
Sub-Association shall not preclude the City from
entering upon the common easements, performing any work
necessary to maintain the common easements and common
facilities located within the Project and to assess the
Owners of any Lots, Units or Ownership Interest for the
costs of such maintenance work, all in accordance with
the provisions of any special assessment laws now or
hereafter enacted by the State of California or City
ordinance, and the provisions of this article shall not
constitute a waiver of the City's rights pursuant to
such special assessment laws.
15.09 Indemnification. To the extent not covered
by insurance policies maintained by the Master Association
and/or the Sub-Associations, as provided in Article 11 of
this Master Declaration and the protection afforded to Owners
and the City as named additional insureds under said
policies, each Owner shall indemnify another Owner in the
Master Association or Sub-Association, as appropriate, for
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the proportionate share for any liabilities for personal
injury or property damage which arise out of or relate to the
condition or the maintenance and repair of the common
easements or the common facilities. Provided that, an Owner
shall have no obligation to indemnify another Owner for any
liability for personal injury or property damage arising out
of the condition or the maintenance and repair of the common
easements or the common facilities where such personal injury
or property damage was caused by the negligence of such Owner
or said Owner's agent or employee. The Master Association,
Sub-Associations and all Owners shall jointly and severally
hold the City, its officers, boards and commissions and
members thereof, its employees and agents harmless and free
from any and all liabilities for personal injury and property
damage which might arise out of or relate to the condition or
the maintenance and repa'ir of the common easements and common
facilities, including, but not limited to, any liability for
personal injury or property damage arising out of the negli-
gence of the City, its officers, boards and commissions and
members thereof, its employees and agents. Should City or
any of its officers, boards and commissions and members
thereof, its employees or agents be named in any suit or
otherwise, whether the same be groundless or not, arising out
of or related to the condition or maintenance and repair of
the common easements and the common facilities, then the
Master Association, Sub-Associations and Owners, as applic-
able, shall defend the City, its officers, boards and com-
missions and members thereof, its employees and agents, and
shall indemnify them for any judgment or settlement rendered
against them or any sums paid out in settlement or otherwise.
ARTICLE 16
AMENDMENTS
15.01 Procedure. After the transfer of management and
control of the Common Area to the Master Association in
accordance with Section 4.03 hereof, any amendment to all or
any portion of this Master Declaration shall require (a) the
vote or written consent of seventy-five percent (75%) of the
voting power of the Master Association (including the Declar-
ant) together with (b) the vote or written consent of
seventy-five percent (75%) of the voting power of the Master
Association (excluding the Declarant), provided that (1) any
prior written consent then required by Section 11018.7 of the
California Business and Professions Code be first obtained,
and (2) if the Declarant is still entitled to the
three-to-one voting priority set forth in Section 2,03 of
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this Master Declaration, any amendment to all or any portion
of this Master Declaration shall require the Approval of the
Declarant. No amendment permitted under this Section shall
be effective for any purpose unless and until the same has
been (i) reduced to writing, (ii) signed by two (2) officers
of the Master Association or a majority of the Board of
Directors, each of whom shall certify said amendment was made
in compliance with the provisions of this Article 16 and
(iii) recorded in the Office of the County Recorder of San
Diego County. Any amendment made in compliance with the
provision of this Article shall be conclusive and presumed to
be valid as to any person relying thereon in good faith and
shall be binding upon every Owner and Ownership Interest,
whether the burdens thereon are increased or decreased by
such amendment and whether or not the Owner of each and every
Ownership Interest consents to such amendment,
16.02 Amendment by Declarant, Prior to the transfer of
management and control of the Common Area to the Master
Association in accordance with Article 4,03 hereof and not-
withstanding anything in this Master Declaration to the
contrary. Declarant shall have the right to amend this Master
Declaration at any time by recording a copy of such amendment
in the Office of the County Recorder of San Diego County,
provided that any prior written consent required by Section
11018,7 of the California Business and Professions Code be
first obtained.
16.03 Amendment Affecting Obligation to Maintain Common
Area, Notwithstanding anything in this Master Declaration to
the contrary, any amendment to this Master Declaration which
would modify the obligation of the Master Association to
maintain the Master Common Area, the Assessment procedure set
forth in this Declaration to assure said maintenance, or the
right of the City to enter upon common easements shown on any
Final Map to maintain or repair such easements or the common
facilities located thereon shall not be effective unless the
written approval of the City is first obtained and a copy
thereof recorded in the office of the San Diego County
Recorder, and no Amendment to this Master Declaration which
would alter the obligations relating to the maintenance of
the Trail Systeiji or other Improvements within or for the
benefit of the Batic[uitos Lagoon without the approval of the
California Coastal Commision.
16.04 Amendment to Eliminate Easements. This Master
Declaration may not be amended to modify or eliminate any
easements or rights herein provided, reserved, or established
for the benefit of Declarant, its successors and assigns.
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without the prior written approval of Declarant, nor may this
Section be amended without the prior written approval of
Declarant and any attempt, act or purported amendment to do
so shall be null, void and of no force or effect. In
addition, this Master Declaration may not be amended (i) to
modify or eliminate any easements or rights herein provided
or reserved or established for the benefit of a Builder, or
the Owners of any Non-Residential Lot or (ii) to reduce or
delete the standards or specifications for the repair, and
maintenance of Project Entries as described or set forth on
the Master Maintenance Plan attached hereto as Exhibit "F"
without the prior written approval of such Owner in any
attempt, act or purported Amendment to do shall be null, void
and of no further force or effect.
ARTICLE 17
NOTICES
Any notice to be given to an Owner, the Master
Association or any Mortgagee under the provision of this
Master Declaration shall be in writing and may be delivered
as follows:
(a) Notice to an Owner or to any Builder shall be
deemed to have been properly delivered when delivered to such
Owner's (whether or not Owner or Builder personally receives
said notice) or when placed in the first-class United States
mail, postage prepaid, to the most recent address furnished
by such Owner or Builder in writing to the Master Association
for the purpose of giving notice, or if no such address shall
have been furnished, then to the street address of such
Owner's Lot, Unit or other Ownership Interest. In the case
of co-Owners, any such notice may be delivered or sent to any
one of the co-Owners on behalf of all co-Owners and shall be
deemed delivered on all such co-Owners. The affidavit of an
officer or authorized agent of the Master Association declar-
ing under penalty of perjury that a notice has been mailed to
any Owner or Owners, to any Mortgagee or Mortgagees, or to
all Members or all Mortgagees, to the address or addressess
shown on the records of the Master Association, shall be
deemed conclusive proof of such mailing, whether or not such
notices are actually received.
(b) Notice to the Master Association shall be
deemed to have been properly delivered when placed in the
first-class United States mail, postage prepaid, to the
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address furnished by the Master Association or the address of
its principal place of business.
(c) Notice to a Mortgagee (or its mortgage ser-
vicing contractor) shall be deemed to have been properly
delivered when placed in the first-class United States mail,
postage prepaid, to the address furnished to the Master
Association by such Mortgagee (or such contractor) for the
purposes of notice or, if no such address is furnished, to
any office of the Mortgagee in the County, or if no such
office is located in the County, to any office of such
Mortgagee,
(d) Notice to Declarant shall be deemed to have
been properly delivered when placed in the United States
mail, postage prepaid and addressed:
To: Aviara Land Associates
Limited Partnership
c/o Hillman Properties West, Inc,
7707 El Camino Real
Carlsbad, California 92002
Attention: Mr, Larry Clemens
With a copy to: Loeb and Loeb
1000 Wilshire Boulevard, 18th Floor
Los Angeles, California 90017
Attention: Michael Langs, Esq,
(e) Any notice so deposited in the United States
mail shall be deemed delivered four (4) business days after
such deposit.
ARTICLE 18
TERM
The covenants, conditions, restrictions, reserva-
tions, easements and rights contained in this Master Decla-
ration shall run with and benefit the land within the Project
and each and every Ownership Unit therein and shall be
binding upon each and every Owner, the Declarant, the Master
Association, its Directors, officers and employees, and all
of their respective successors and assigns and shall continue
in full force and effect for a term of fifty (50) years from
the date of recordation of this Master Declaration, after
which time the same shall be automatically extended for five
(5) successive periods of ten (10) years each unless, within
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one (1) year prior to the expiration of the initial fifty
(50) year term or any such ten (10) year extension period, a
written agreement approved by seventy-five percent (75%) of
the Owners shall be placed on record in the Office of the
County Recorder of San Diego County, terminating the effec-
tiveness of this Master Declaration.
ARTICLE 19
ANNEXATION OF ADDITIONAL PROPERTY
Additional real property and improvements (i.e..
Phase II and/or Phase III, etc) may be annexed to the Aviara
Project and become subje'ct to this Master Declaration and the
jurisdiction of the Master Association by either of the
methods set forth below:
19.01 Annexation Pursuant to Approval. Upon vote or
written assent of not less than sixty-six and two-thirds
percent (66-2/3%) of the total votes residing in the Asso-
ciation (excluding the Declarant and any Builder). Any
person who is the owner of additional real property approved
for annexation pursuant to this section who desires to have
the same annexed to the Project and made subject to this
Declaration and the jurisdiction of the Master Association
may cause to be prepared and recorded in the Office of the
San Diego County Recorder a Supplementary Declaration more
particularly described in Section 19.03 of this Article.
19.02 Annexation Pursuant to General Plan. All or any
part of the Balance of the Overall Property and Improvements
now or hereafter located thereon and described in Exhibit "A"
attached hereto may be annexed to the Project and become
subject to the terms and provisions of this Master Decla-
ration and to the jurisdiction of the Master Association
without the approval, assent or vote of the Association or
its members, provided that (i) any such annexation shall be
made prior to the fifteenth (15th) anniversary of the
original issuance of the most recently issued final subdi-
vision public report for a Phase with an Individual Project,
(ii) any such annexation will not result in a substantial
increase in assessments against Owners of Lots, Units or
other Ownership Interests within any Phase or Phases already
a part of the Aviara Project, and (iii) a Supplementary
Declaration more particularly describe(d in Section 19.03 of
this Article shall be recorded in the Office of the County
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Recorder for San Diego County covering all or any part of the
real property described in Exhibit "A" attached hereto.
19.03 Supplementary Declaration. Annexations of addi-
tional real property and improvements authorized by this
Article shall be made by and become effective upon recording
in the Office of the San Diego County Recorder, a Supplemen-
tary Declaration, or similar instrument, describing the real
property and improvements to be annexed and extending the
common plan of this Declaration to such additional real
property and improvements. Such Supplementary Declaration
shall be executed by the Declarant, or any other Owner of the
additional real property and improvements to be annexed.
Such Supplementary Declaration may contain such additions and
modifications of the covenants, conditions and restrictions
contained in this Master Declaration as may be reasonably
necessary to reflect the different character, if any, of the
real property, improvements and facilities to be annexed
provided (i) that such additions and modifications are not
inconsistent with the general plan of this Master Declaration
provided, however, that no such Supplementary Declaration
shall modify, revoke or supersede any of the easements,
rights and covenants reserved and established in this Dec-
laration with respect to Phase I of the Project or any other
additional real property and improvements already annexed to
and made a part of the Aviara Project with respect to which
escrows for the sale of any Lots, Units or other Owners of
Interests have already closed.
19.04 Community Common Area. Any portion of the property
being annexed that is intended or required to be Community
Common Area shall be conveyed to the Community Association
prior to the close of the first sale of the Lot in any sub-
division in the Annexed Property to an Owner, other than
Declarant, a Builder or an Apartment Owner upon the annex-
ation of any such property.
19.05 De-annexation. Declarant may delete all or any
portion of any property annexed from the coverage of this
Master Declaration and rescind any Supplementary Declaration,
provided Declarant is the sole Owner of all of the real
property described in the Supplementary Declaration to be
rescinded. Such deletion shall be effective upon the
recordation of a "Notice of Deletion of Territory," signed by
Declarant, in the same manner as the Supplementary Decla-
ration to be rescinded was recorded.
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ARTICLE 20
GENERAL PROVISIONS; INTERPRETATION
The provisions of this Master Declaration shall be
liberally construed to effectuate its purpose of creating the
common plan for the phases development of the Aviara
Community as described in the recitals to this Master
Declaration. The headings of the several Articles, Sections
and paragraphs of this Master Declaration are inserted solely
for the convenience of reference and are not a part of nor
intended to govern, limit or aid in the construction of any
term or provision of this Declaration. No failure to enforce
any one or more of the provisions hereof shall constitute a
waiver of the right thereafter to enforce any of said pro-
visions or any other proVisions hereof. In the event any
term, covenant, provision. Article, section, paragraph or
other element contained in this Master Declaration is for any
reason held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not
affect, alter, modify or impair in any manner whatsoever any
other term, covenant, provision. Article, section, paragraph
or other element contained in this Master Declaration, the
provisions of which shall continue to be valid and enforce-
able as if such invalid, illegal, or unenforceable provision
were not contained herein. Unless the context otherwise
requires, the singular number includes the plural, the
masculine gender includes the feminine and/or neuter and the
neuter gender includes the masculine and/or feminine. In the
event of any inconsistency or conflict between (i) the
rights, powers, easements, authority or liens created,
reserved and established for the benefit of the Declarant,
the Master Association, its Board, the Architectural Control
Committee or any Builder, Owner or Person under the terms and
provisions of this Master Declaration or the By-Laws and
Articles of the Master Association (the "Master Documents")
and (ii) the terms provisions, powers, rights, easements,
liens, remedies, decisions, votes, approvals or agreements
provided by, described in or arising under any Individual
Project Declaration or any other documents prepared and or
recorded in connection with any Individual Project (the
"Subordinate Documents") then, in each such event, the
rights, powers and authorities of the Declarant and the
Master Association created, reserved, established and/or
exercised under the Master Documents shall control, be
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superior to, and unaffected by any such inconsistency,
conflict or the exercise of any rights, liens, powers or
authority provided by, described in or arising under any such
Subordinate Documents.
IN WITNESS WHEREOF, the Declarant has executed this
Master Declaration of Covenants, Conditions and Restrictions
for the Overall Property as of the day and year first above
written.
AVIARA LAND ASSOCIATES
LIMITED PARTNERSHIP
By
Its General Partner
By
Title
By
Title
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STATE OF )
) SS,
COUNTY OF )
On , before me, the under-
signed, a Notary Public in and for said State, personally
appeared and
, personally known to me
or proved to me on the basis of satisfactory evidence to be
the persons who executed the within instrument respectively
as the and the on
behalf of the corporation therein named, and acknowledged to
me that such corporation pursuant to its by-laws or a resolu-
tion of its board of directors executed the within instrument
on behalf of the partnership therein named and that such
partnership executed the within instrument.
WITNESS my hand and official seal.
Notary Public
THE LAND REFERRED TO HEREIN IS SITUATED IN THE
COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS
STATE OF CALIFORNIA,
THOSE PORTIONS OF SECTIONS 22, 26, 27, 28, 33, AND 34 ALL
IN TOWNSHIP 12 SOUTH. RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE
CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 34 AS SHOWN ON
RECORD OF SURVEY MAP NO. 10774 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY OCTOBER 30, 1986 AS FILE NO. 86-494180;
THENCE ALONG THE EASTERLY LINE OF SAID SECTION, SOUTH 00»32'01" WEST
426.75 FEET; THENCE LEAVING SAID EASTERLY LINE, THE FOLLOWING COURSES:
NORTH 83*55'00"
SOUTH 67'22'00"
SOUTH 39'25'00"
SOUTH 49*15'GO"
NORTH 58*00'00"
NORTH 05'14'00"
NORTH 74'45'00"
SOUTH Sg'OO'OO"
SOUTH 22*30'00"
SOUTH 6r54'00"
NORTH aS'OO'OO"
SOUTH 52*50'00"
SOUTH 54*10'00"
NORTH 54M0'00"
NORTH 35*30'00"
NORTH 20*30'00"
SOUTH 25*30'00"
SOUTH 33*30'00"
SOUTH 77*30'00"
SOUTH 75*58'00"
NORTH 73*50'00"
NORTH 74*10'00"
NORTH 73*16'26"
SOUTH 78*00'00"
TO THE BOUNDARY
THENCE ALONG SA
WEST
WEST
EAST
WEST
WEST
EAST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
WEST
LINE
154.81
140.00
163.00
119.00
132.00
201.00
193.00
156.00
88.00
195.00
120.00
318.00
148.00
370.00
141.00
128.00
223.00
146.00
358.00
42.00
99.00
190.00
174.03
447.00
OF SAI
FEET
FEET
FEET
FEET
FEET
FEET
FEET
FEET
FEET;
FEET
FEET
FEET
FEET
FEET
FEET
FEET
FEET
FEET
FEET
FEET;
FEET;
FEET
FEET
FEET
SOUTH
SOUTH
SOUTH
NORTH
NORTH
NORTH
NORTH
NORTH
SOUTH
NORTH
SOUTH
SOUTH
SOUTH
NORTH
NORTH
NORTH
SOUTH
SOUTH
SOUTH
NORTH
51*22'00*
60*44'00'
21*ir00'
89*45'00'
72*30'00*
51*53'00'
89*42'00'
75*10'00'
8r22'00"
82*00'00'
oroo'oo'
28'00'00'
79*35'00'
74*30'00'
irio'oo'
85*00'00'
10*45'00'
55'30'00'
55*10'00'
83*56'00"
WEST 518.00 FEET
WEST 295.00 FEET
WEST 214.00 FEET
WEST 186.00 FEET
WEST 187.00 FEET
WEST 63.00 FEET;
WEST 218.00 FEET
WEST 113.00 FEET
WEST 37.00 FEET;
WEST 114:00 FEET
EAST 36.00 FEET;
EAST 35.00 FEET;
WEST 155.00 FEET
WEST 86.00 FEET;
' EAST 110.00 FEET
' WEST 71.00 FEET;
' EAST 53.00 FEET;
' WEST 52.00 FEET;
' WEST 167.00 FEET
WEST 117.00 FEET;
NORTH 79*50'00"
NORTH 68*56'02
NORTH 84*00'00
NORTH 83*00'00
D RECORD OF SURVEY MAP;
ID BOUNDARY LINE, THE FOLLOWING COURSES:
WEST 147.00 FEET;
WEST 346.00 FEET
WEST 124.00 FEET
WEST 123.73 FEET
AMENDED 1170624
EXHIBIT A
AVIARA
LEGAL DESCRIPTION OF
OVERALL PROPERTY
1 OF 2
NORTH
NORTH
SOUTH
SOUTH
NORTH
NORTH
NORTH
NORTH
NORTH
NORTH
NORTH
SOUTH
SOUTH
NORTH
NORTH
SOUTH
SOUTH
SOUTH
SOUTH
SOUTH
SOUTH
SOUTH
SOUTH
NORTH
NORTH
FEET
32*17'
00*43'
89*08'
83*50'
46*13'
14*41'
44* ir
17*22'
03*51'
00*34'
01*49'
01*36'
87*30'
00*12'
00*41'
00*33'
89*19'
89*16'
89*16'
44*39'
38*15'
24*07'
48*19'
88*48'
88*55'
TO THE
46" WEST
21" WEST
32" EAST
41" EAST
35" EAST
15" WEST
08'
08'
41'
18'
19'
47'
WEST
WEST
EAST
EAST
WEST
EAST
08" EAST
09" WEST
54" WEST
25" WEST
14" EAST
26" EAST
42" EAST
44" WEST
14" WEST
12" WEST
47" EAST
10" WEST
25" WEST
POINT OF
561.56 FEET; NORTH 69*15'21" WEST 228.23 FEET;
788.21 FEET; NORTH 00*30'45" EAST 1357.73 FEET;
1358.19 FEET; NORTH 23*18'51" EAST 155.92 FEET;
182.99 FEET; NORTH 63*51'06" EAST 118.55 FEET;
66.99 FEET; NORTH 2r20'05" EAST 79.07 FEET;
271.95 FEET; NORTH 25*25'20" WEST 112.93 FEET;
189.02 FEET; NORTH 36*54'2r' WEST 80.99 FEET;
96.53 FEET; NORTH 07*57'57" WEST 108.47 FEET;
180.95 FEET; NORTH 35*35'33"
2716.14 FEET; SOUTH 85*58'38
331.07 FEET; SOUTH 86*57'12"
330.69 FEET; SOUTH 00*06'50"
662.65 FEET; SOUTH 87*32'14"
1328.52 FEET; SOUTH 85*58'17
2434.07 FEET; SOUTH 89*28'30
2491.10 FEET; SOUTH 00*42'22'
1334.44 FEET; SOUTH 00*21'21'
252.98
299.95
109.07
136.45
174.68
507.55
770.87
1321.10
FEET
FEET
FEET
FEET
FEET
FEET
FEET
FEET;
SOUTH
SOUTH
SOUTH
SOUTH
SOUTH
SOUTH
NORTH
AND
00*43'19"
25*48'10"
40*5r44"
08*46'19"
15*13'16"
24*29'17"
00*22'48"
WEST 142.04 FEET;
' EAST 1318.67 FEET;
EAST 660.57 FEET;
WEST 1340.75 FEET;
EAST 662.56 FEET;
• EAST 659.12-FEET;
' EAST 1370.33 FEET;
• EAST 2294.99 FEET;
' EAST 328.99 FEET;
WEST 392.93 FEET;
EAST 163.03 FEET;
WEST 501.68 FEET;
WEST 168.00 FEET;
EAST 128.95 FEET;
EAST 825.89 FEET;
WEST 658.36 FEET;
SOUTH 00*42'22" EAST 655.68
BEGINNING.
AMENDED 1170624
AVIARA
EXHIBIT A
LEGAL DESCRIPTION OF
OVERALL PROPERTY
2 OF 2
Lane
MF
I .A
I .(
32
|32f 19
— 32A PR
Y 21 X
! MF ; ' / f
! ^ 1 L < ^- /
^ /17
1 . MF
L < ^- /
^ /17
1 . MF
A 1
30 MF
\ 1
\^ U. I NARgClGC
SUMMARY
1 »' ItUtOLI KAMNWa MIA Sa6U. ACHt* OWILLINC UNITt
3 S.4 27
4 21.8 103
8 27.3 78
13 ee.s 72
14 20.8 82
24 S4 183
2S 18.2 48
27 21.2 S4
28 34.S 74
2« 44 89
SUBTOTAL 314.8 787
TOTALS 1015 ACRES
2836 UNITS
AVIARA
1 " IWULTH KAMNMO AMA OAO$t. ACRfS* OWILUMG MNTt
8 23.8 188
7 30.3 240
9 32.5 100
13 28.1 3S1
IS 22.2 192
18 8.2 121
17 24.7 19S
IS 18.5 82
18 8.3 74
20 8.8 34
21 2S.9 90
22 28 97
28 7S.2 189
30 «(.S 138
SUBTOTAL 403 2049
*I1CUMC« UTUTT COWout
COMMERCIAL
n.AHMMO ARIA GROIt ACMI*
CN iiiiSMHWtaaB
COWUCNCIAL 23 13.S
CH nilil
MtOIIT 2 27.8
CV visnoa
COMUCMCIAL 11 2.4
SUBTOTAL 43.4
OPEN SPACE
OC COMU 1 171.5
P Mm 32 24.3
P« .AM MUBVf 32A S.7
RCC MCMATtOH 10 8.2
UTUTf COAIKOW 27.2
SUBTOTAL a».i
COMMUNITY
s 8 12.4
oc lOAT CAM/ lOMMCN 328 4.S
SUBTOTAL 18.9
EXHIBIT B
DEVELOPMENT PLAN
AVIARA DEVELOPMENT PLAN PHASE I
EXHIBIT 0
ML:bo 06/06/89 ML971.0088.0.0
Legal Description of Overall Property
Subject to Annexation
[TO BE ADDED BY AMENDMENT TO SHOW ALL
PROPERTY ENCUMBERED BY MASTER CC&Rs WHICH
IS NOT PART OF DRE PHASE 1 BUT IS SUBJECT
TO ANNEXATION PURSUANT TO ARTICLE 19 OF
THE MASTER CC&Rs]
EXHIBIT "D'
ML:bo 06/06/89 ML971.0089.0.0
DRE Phase 1
Final Type
Planning Area Lot No. Map No. of Lot Acreage
[TO BE ADDED BY AMENDMENT AFTER DRE
BUDGET APPROVAL AND THEREAFTER BY
SUPPLEMENTARY DECLARATION PRIOR TO EACH
ANNEXATION OF DRE PHASE!
EXHIBIT "E'
This is a reduced copy of the Master Maintenance Plan approved
by the City. A full size copy of the Master Maintenance Plan
(sometimes referred to as Master Association Maintenance Plan)
is on file in the office of the Master Association.
AVIARA
MEDIUM [ i NATIVE
MASTER ASSOCIATION
MAINTENANCE AREAS
EXHIBIT F
JUNE 20. tM9
SLOPES TO BE MAINTAINED
BY MASTER ASSOCIATION
Level of Maintenance: Medium
KEY MAP
AVIARA
MASTER ASSOCIATION MAINTENANCE AREAS
Poinsettia Lane Slopes
(Poinsettia Lane Section of CT 85-35)
V EXHIBIT F-
COMMUNTTY TRAIL SYSTEM
AVIARA
'^'^.^.^A'^ NORTH SHORE COASTAL ACCESS TRAL
DEVELOPMENT PLAN - TRAIL SYSTEM
V EXHIBIT G
JUNE 20. i>a>
r ML:bo 06/06/89 ML971.0093.0.0
Schedule of Acreage for Lots
Prior to Close of Escrow for
Sale of Lots or Units Pursuant to a Public Report
Planning Type Percentage of
Area Lot No, Tract No. of Lot Acreage Total Acreage
(TO BE ADDED BY AMENDMENT WITH CALCULA-
TIONS BASED UPON APPLICABLE FINAL MAP
DEMINITIONS].
EXHIBIT "H llrjll
ML:bo 06/06/89 ML971.0094.0.0
BUILDER ARCHITECTURAL CONTROL APPROVAL
To:
'ZII^IIIIIZIIIIIZIZIIIIIIZZZIIIL ("Builder")
The Regulated Improvements proposed by the Builder named
above to be developed by said Builder within Planning Area
of the Aviara Country Club and Resort (the "Project") are
shown in those certain plans, specifications, drawings, maps.
Site Development Plans and and approvals dated or described
as follows:
The Regulated Improvements as described in the plans, draw-
ings and approvals identified above are hereby approval from
the provisions of Article 8 of the Master Declaration of
Covenants, Conditions and Restrictions for the Project, This
approval applies only to the Regulated Improvements described
in the plans, drawings and approvals identified above. This
exemption is personal to the Builder identified above and
invalid if assigned. This approval may not be relied upon by
any person or persons other than the Builder identified above
and any lender holding an Institutional Mortgage recorded
against the land and Regulated Improvements to be constructed
by Builder within said Planning Area.
Dated:
AVIARA LAND ASSOCIATES
LIMITED PARTNERSHIP
By:
Title:
"Declarant"
EXHIBIT "I'