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HomeMy WebLinkAboutCT 90-03; Shelley Property; Engineering ApplicationOT-11/01 14:21 FAX 818 234 0349 07/11/2881 10:11 7684382''-^ PROJECT DESIGN CONS HOFMAN PLANNING E 82 CITY OF CARLSBAD - ENGINEERING DEPARTMENT APPLICATION FOR ENGINEERING PLAN CHECK OR PROCESSING Complete a» appropriate Information. Write N/A wften not applicable. PROJECT NAME: Tteuee*J UW\T 4 ( £ f uo . =to ~i) DATE: ~7/u 1 01 PROJECT DESCRIPTION:- 6»3 5M^>ce VT^ILT u<->rrs v-UTW £ c?Peu «:>P*cr UCTS PROJECT ADDRESS: ivjTvsfcsa.Tvou «* S-AVJC**D •S^OTK^S TSSAO ^ *voe*JicA. AjeA.&eiJ LOTNO(S).: \fcz- 256 MAP NO.: 14AS10 APN(S).: 2 (p4-t>\o-^2, NO. OF DWELLING UNITS: 6>3 LFMPZONE: \\ #LOTS: G6 # ACRES: 33.21 OWNER: • tf»u,-uU^oTA.i- tES\t.^TiA^\o6 Mailing Address: 2iy~l f?«fi./>»t*o-r AN^ ** \<5t> CACtSt^sP CA ^-J^og Phono Numtoar (7i») ^3/-/^BC> I certify that 1 am (ha legal owner and that all the above information ia>trua and correct to thotrat of my knowledge Signature £xu**<se /^^^^^Dale 7-/4-P/ CIVIL ENGINEER: "C^c ^G.u^o Plrm: "?^>leUT &€^>vCaa C<?v)S^C&*rrS> welling Aoaress: ~7o^ ?» •sneee~T * ©CJD S^, ^^>o CA. *12/o/ Phone Numlwr: (OH) Z^^^O^nl State Registration Number: 3 <v °l£>^> APPLICANT: feaoiAE A.^ owuec^ Mailing Acdrw: Phono Numbor, (,-- } Signature Data SOILS ENGINEER: EAMO*U_ VJKG-^WJ- Flrm; UE\.&.v\-T«»U i^«=»SoC. Wailing Address: %<\T>4 nufi-PHT C^^o^ V<3*b ^V3 tA^c, CAt?^!^.^ Phone Number: (%^8) 2^2- So'io State Registration Nombar G,e.&. 1^12- ADDITIONAL COMMENTS: IMPROVEMENT VALUATION 1 . What water district is the proposed project located in? (circle one) Carlsbad Municipal Water District Olivenhain Vallecitos 2. if in the Carlsbad Municipal Water District, whal Is the total cost estimate, including the 15% contingency fee, for water and reclaimed water Improvements (if applicable)? $ 3. What is the total cost estimate, including the 15% contingency fee, tor fewer (for Carlsbad Municipal Water District only), street, public (median) landscape and Irrigation, and drainage Improvements (If applicable)? $ 4, What is the total cost of landscape end irrigation improvements on private property (if applicable)? $ GRADING QUANTITIES cut -e*- cy fill -&~ cy remedial -^ cy Import/export -©~ cy H:WOfyXX>e&Vl*PO*»Uf APPLICATION ENO FIANCHECX OR PROCESSING REV. IOCi/99 CITY OF CARLSBAD - ENGINEERING DEPARTMENT APPLICATION FOR ENGINEERING PLAN CHECK OR PROCESSING Complete all appropriate information. Write N/A when not applicable. PROJECT NAME: Arroyo Vista - Unit 4 DATE: 01/30/01 PROJECT DESCRIPTION: Street vacation-from public to private streets within Unit 4. PROJECT ADDRESS: LOTNO(S).: MAP NO.: APN(S).: NO. OF DWELLING UNITS: 63 LFMP ZONE: n # LOTS: 64 # ACRES: 33 OWNER: Continental Residential. Inc. Mailing Address: 2237 Faraday Ave., #100 Carlsbad, CA 92008 Phone Number: (750 ) 931-1980 1 certify that 1 am the legal owner and that all the above information is true and correct to tbe best of my knowledge Signature i^u^€ #~ h&<t^ Date 4- -14- * f CIVIL ENGINEER: David Raaland Firm: Pro.iectDesign Consultants Mailing Address: 701 B Street. Suite 800 San Diego, CA 92101 Phone Number: ( 519) 235-6471 State Registration Number: 35985 APPLICANT: Continental Residpnt.ial r Inc. Mailing Address: 2237 Faraday Ave.. #100 Carlsbad, CA 92008 Phone Number: (760 ) 931-1980 Signature l&t**4?A . i&t^ Date 4^4^o/ SOILS ENGINEER: Firm: Mailing Address: Phone Number: ( ) State Registration Number: ADDITIONAL COMMENTS: IMPROVEMENT VALUATION 1 . What water district is the proposed project located in?j£incle one) Carlsbad Municipal Water District <T "ONvenhafo Vallecitos 2. If in the Carlsbad Municipal Water District, what is theTolaTCost estimate, including the 15% contingency fee, for water and reclaimed water improvements (if applicable)? $ 3. What is the total cost estimate, including the 1 5% contingency fee, for sewer (for Carlsbad Municipal Water District only), street, public (median) landscape and irrigation, and drainage improvements (if applicable)? $ 4. What is the total cost of landscape and irrigation improvements on private property (if applicable)? $ GRADING QUANTITIES cut cy fill cy remedial cy import/export cy H:WORD/DOCS/MISFORMS/APPLICATION ENG PLANCHECK OR PROCESSING or REV. 10/06/99 APPLICATION FOR: (/ all that apply) Q Adjustment Plat Q Certificate of Compliance Q Dedication of Easement Type: Type: Q Encroachment Permit Q Engineering Standards Variance Q Final Map Q Grading Plancheck Q Grading Q Improvement Plancheck Q Parcel Map Q Quitclaim of Easement Type: . Type: , Q Reversion to Acreage HTstreet Vacation Q Tentative Parcel Map Q Certificate of Correction Q Covenant for Easement Q Substantial Conformance Exhibit FOR CITY USE ONLY Plancheck Number Type ADJP COG DOE ENCROACH ESV FM GRPC GRADING IPC PM QUITC t RTA STV MS CCOR COVE SCE APPLICATION ACCEPTED BY: MASTER PROJECT ID: RECEIPT NUMBER: PRELIMINARY SIERRA SYSTEM INPUT INITIAL: SIERRA SYSTEM INPUT INITIAL: R:BASE INPUT INITIAL: MASTER FILE NUMBER: F Q OTHER: Drawing Number tjn/o/-*^ Project I.D. erqo-3 Deposit/Fees Paid xf^P*&*+y DATE STAMP APPLICATION RECEIVED DOCS/MISFORMS/APPLICATION ENG PLANCHECK OR PROCESSING REV. 10/06/99 CITY OF CARLSBAD - ENGINEERING DEPARTMENT APPLICATION FOR ENGINEERING PLAN CHECK OR PROCESSING Complete all appropriate information. Write N/A when not applicable. PROJECT NAME: Substantial Conformance to TM CT90-3/PUD90-4 DATE: June 7. 2000 PROJECT DESCRIPTION: Substantial conformance exhibit/plans to a 252-lot residential development PROJECT ADDRESS: N/A LOTNO(S).: N/A MAP NO.: N/A APN(S).: 255-040-19.264-010-32 NO. OF DWELLING UNITS: N/A LFMP ZONE: 11 # LOTS: 252 # ACRES: 103.67 OWNER: Daniel T. Shellev Mailing Address: P.O. Box 230985 Encinitas. CA 92023-0985 Phone Number: (760) 759-2268 I certify that I am the legal owner and that all the above informatioj*ig"lrQe and correct to the best of my knowledge / ^- CIVIL ENGINEER: David B. Radlahd. PE Firm: Project Design Consultants Mailing Address: 701 B Street. Suite 800 SanDieao. CA 921 01 Phone Number: (619)235-6471 State Registration Number: RCE 35985 LANDSCAPE ARCHITECT: N/A Firm: Mailing Address: Phone Number: ( ) State Registration Number: IMPROVEMEN 1 . What water district is the proposed project located in (circle Carlsbad Municipal Water District Oli 2. If in the Carlsbad Municipal Water District, what is the total contingency fee, for water and reclaimed water improver 3. What is the total cost estimate, including the 15% continge Municipal Water District only), street, public (median) \i drainage improvements (if applicable)? 4. What is the total cost of landscape and irrigation improvem applicable)? APPLICANT: Continental -HsfflBB &*'<ifa<Jti£.} Cvu^- Mailing Address: 2237 Faradav Avenue. Suite 100 Carlsbad. CA 92008 Phone Number: ( 760 ) 931 -1 980 '^ - Jr^h/- 1 1Sianature w&c**-**!? ft- rfl$£*8ate 6>/g/(ro SOILS ENGINEER: Michael R. Stewart Firm: Leiahton & Associates Mailing Address: 3934 Murphy Canyon Road. #3205 SanDieao. CA 921 23 Phone Number: (858) 292-8030 State Registration Number: CEG 1349 ADDITIONAL COMMENTS: JT VALUATION • one)? i/enhain Vallecitos cost estimate, including the 1 5% nents ( if applicable)? $ N/A ncy fee, for sewer (for Carlsbad mdscape and irrigation, and $ N/A ents on private property (if $ N/A GRADING QUANTITIES cut 755,200 cy fill 754.140 cy remedial 856.000 cy import/export 0 cv DOCS/MISFORMS/APPLICATION ENG PLANCHECK OR PROCESSING FOR/16025CARLS-EPC.DOC (06/07/00) REV. 6/10/97 FOR/GEN/CARLS-EPC.DOC (9/99) APPLICATION FOR: (/ all that apply) n Adjustment Plat D Certificate of Compliance D Dedication of Easement Type: Tvoe: n Encroachment Permit n Engineering Standards Variance D Final Map D Grading Plancheck D Grading D Improvement Plancheck D Landscape Plancheck d Parcel Map [U Quitclaim of Easement Tvoe: Tvoe: [H Reversion to Acreage D Street Vacation D Tentative Parcel Map D Certificate of Correction O Covenant for Easement £3 Substantial Conformance Exhibit FOR CITY USE ONLY Plancheck Number Type ADJP COC DOE ENCROACH ESV FM GRPC GRADING IPC LPC PM QUITO RTA STV MS CCOR COVE SCE APPLICATION ACCEPTED BY: MASTER PROJECT ID: RECEIPT NUMBER: PRELIMINARY SIERRA SYSTEM INPUT INITIAL: SIERRA SYSTENNNPUT INITIAL: R:BASE INPUT INITIAL: MASTER FILE NUMBER: PI OTHER: Drawing Number £ce"?£ft}3 Project I.D. CT70-3 Deposit/Fees Paid $600.00 RECEIVED JUL H 2000 ENGINEERING DEPARTMENT DATE STAMP APPLICATION RECEIVED DOCS/MISFORMS/APPLICATION ENG PLANCHECK OR PROCESSING FOR/16025CARLS-EPC.DOC (06/07/00) REV. 6/10/97 FOR/GEN/CARLS-EPC.DOC (9/99) -^ CITY OWCARLSBAD - ENGINEERING DEPAPW!*ivlENT APPLICATION FOR ENGINEERING PLAN CHECK OR PROCESSING Complete all appropriate information. Write N/A when not applicable. RECEIVED JUl 1 4 1S99 PROJECT NAME: Shelley Property Unit 4 DATE: 06/18/99 PROJECT DESCRIPTION: Residential development PROJECT ADDRESS: N/A LOTNO(S).: 185-250 MAP NO.: N/A APN(S).: 255-040-19, 264-010-32 NO. OF DWELLING UNITS: 66 LFMP ZONE: n # LOTS: 66 # ACRES: 21.2 OWNER: Daniel T. Shelley Mailing Address: p.o. Box 230985 Encinitas, HA 92023-0985 Phone Number: (619 ) 759-2268 1 certify that 1 am the legal owner and that all the above information is-tnre and correptto the best of my knowledge Signature iJ^J/ /^^^ Date Uz. ?/? ? ^f I f CIVIL ENGINEER: Mark /F/Campbell Firm: Proiect Design Consultants Mailing Address: 701 B Street, Suite 800 San Diego, CA 92101 Phone Number: ( 619) 235-6471 State Registration Number: RCE 48040 LANDSCAPE ARCHITECT: Firm: Mailing Address: Phone Number: ( ) State Registration Number: APPLICANT: Same Mailing Address: Phone Number: ( ) Signature Date SOILS ENGINEER: Michael R. Stewart F'1711- Leighton Associates Mailing Address: 3934 Murphy Canyon Rd., #3205 San Diego, CA 92123 Phone Number: (619 ) 292-8030 State Registration Number: CEG 1349 ADDITIONAL COMMENTS: ,.I IMPROVEMENT VALUATION 1 . What water district is the proposed project located in (circle one)? Carlsbad Municipal Water District Olivenhain Vallecitos 2. If in the Carlsbad Municipal Water District, what is the total cost estimate, including the 15% contingency fee, for water and reclaimed water improvements (if applicable)? $ N/^ 3. What is the total cost estimate, including the 15% cont Municipal Water District only), street, public (medic drainage improvements (if applicable)? 4. What is the total cost of landscape and irrigation impro applicable)? ngency fee, for sewer (for Carlsbad in) landscape and irrigation, and $ 819,361 vements on private property (if $ N/A GRADING QUANTITIES cut 54,800 cy f,n 14,300 cy remedial N/A cy imoort/exDort 40,500I cy OOCS/MISFORMS/APPLICATION ENG PLANCHECK OR PROCESSING REV 6/10/97 c APPLICATION FOR: (S all that apply) Q Adjustment Plat Q Certificate of Compliance 2 Dedication of Easement Type: Utility Type: Q Encroachment Permit Q Engineering Standards Variance GixPfnal Map iKsfadinq Plancheck Q Grading ©"Improvement Plancheck Q Landscape Plancheck Q Parcel Map Q Quitclaim of Easement Type: Type: Q Reversion to Acreage Q Street Vacation Q Tentative Parcel Map Q Certificate of Correction Q Covenant for Easement Q Substantial Conformance Exhibit FOR C/FQJSE ONLY ======^ Plancheck Number F/n9,o&t 2&HP 5Zo~l£ Type ADJP COC DOE ENCROACH ESV FM GRPC GRADING IPC LPC PM QUITC RTA STV MS CCOR COVE SCE APPLICATION ACCEPTED BY: |^W\ [<S (l MASTER PROJECT ID: fl ^O^ <§k& ( RECEIPT NUMBER: PRELIMINARY SIERRA SYSTEM INPUT INITIAL: SIERRA SYSTEM INPUT INITIAL: R:BASE INPUT INITIAL: MASTER FILE NUMBER: F Q OTHER: Drawing Number 3&HP Bfco-l^ Project I.D. ^0-03 _.y ^6-03-^ ^O'OS-H Deposit/Fee^ Paid • — . %3/^o 33^.0-0 l^£-£7.0<> 7305 *_ trsqjl ^ o>! ^ 23 ii *• <n~ __ '-H-Z_~Z- to i^J-10 s d DATE STAMP APPLICATION RECEIVED J DOCS^llSFORMS/APPLICATION ENG PLANCHECK OR PROCESSING REV 6/10/97 JEFF N & LYNN GILFORD PUBLIC AGENCY CARLSBAD CA 92009-9324 LB&L CONCORDIA CARLSBAD 333 BUSH ST pAN FRANCISCO 94104-2806 KAMChO SANTA Fhl VISTA H 9404 GENESEE AVE 140 A JOLLA CA 92037-1353 JANET M FRETWELL GEORGE I 2935 CORTE PEDRO 2931 VIA CARLSBAD CA 92009-9212 CARLSBAD GALLAGHER PEPITA CA 92009-9239 KARINE V ALLIER 2929 VIA PEPITA CARLSBAD CA 92009-9239 DONALD A DE SHIELDS 2927 VIA PEPITA CARLSBAD CA 92009-9239 JAMES K STRATTMAN 2925 VIA PEPITA CARLSBAD CA 92009-9239 MICHAEL A GIBSON 7935 CALLE SAN FELIPE CARLSBAD CA 92009-9308 STEVEN M NAGORZANSKI 403 CHEROKEE DR MECHANICSBURG 17050-2510 HARRIET L STUPP 7939 CALLE SAN FELIPE CARLSBAD CA 92009-9308 GLEN DAIGLE 7953 CALLE POSADA CARLSBAD CA 92009-9306 DAN W & DEBORAH MILLER 7955 CALLE POSADA CARLSBAD CA 92009-9306 COLINAS DE ORO COMMUNIT 23161 MILL CREEK DR 200 LACUNA HILLS 92653-1649 ROLANDO A SALDANA 7930 CALLE SAN FELIPE CARLSBAD CA 92009-9307 ROBERT GOODALL 7932 CALLE SAN FELIPE CARLSBAD CA 92009-9307 JAMES G FREEMAN 7937 CALLE POSADA CARLSBAD CA 92009-9305 CRAIG R BENJAMIN 5300 SE PINE ST HILLSBORO OR 97123-7683 JAMES L ADDONIZIO 7932 CALLE POSADA CARLSBAD CA 92009-9304 DONNA J TRAPOLINO 7934 CALLE POSADA CARLSBAD CA 92009-9304 ALAN & CANDIUS MICHAEL 7936 CALLE POSADA CARLSBAD CA 92009-9304 MICHAEL D MILLICAN 7938 CALLE POSADA CARLSBAD CA 92009-9304 MICHAEL D RAPHAEL 7940 CALLE POSADA CARLSBAD CA 92009-9304 KURT A SIMONSON 7942 CALLE POSADA CARLSBAD CA 92009-9304 JOHNSON 7944 CALLE POSADA CARLSBAD CA 92009-9304 ROBERT J & DIANA ROY 42245 VIA DE LOS FIDEOS TEMECULA CA 92590-3120 MICHAEL L DIERDORFF 7948 CALLE POSADA CARLSBAD CA 92009-9304 RICHARD EISENBEISZ 7950 CALLE POSADA CARLSBAD CA 92009-9304 MURRAY S JUDY 7952 CALLE POSADA CARLSBAD CA 92009-9304 JOSEPH B JIMENEZ 7954 CALLE POSADA CARLSBAD CA 92009-9304 ROBERT E & LINDA LONG 7956 'CALLE POSADA 'CARLSBAD CA 92009-9304 S A & DIANE SCKNOEBELEN 7958 CALLE POSADA CARLSBAD CA 92009-9304 DANIEL J WILSON .7960 CALLE POSADA CARLSBAD CA 92009-9304 RUTH A GOOD 3281 CAMINO CORONADO CARLSBAD CA 92009-9312 PETER B EVANS 3277 CAMINO CORONADO CARLSBAD CA 92009-9312 DAVISON 3273 CAMINO CORONADO CARLSBAD CA 92009-9312 THOMAS E £c JUDY JOHNSON 3269 CAMINO CORONADO CARLSBAD CA 92009-9312 DAVID & MINDY WILLIAMS 3267 CAMINO CORONADO CARLSBAD CA 92009-9312 RAYMOND A BIERNACKI 3265 CAMINO CORONADO CARLSBAD CA 92009-9312 RAY G & EDITH NEWMAN 3263 CAMINO CORONADO CARLSBAD CA 92009-9312 PENELOPE L ELLENOR 3261 CAMINO CORONADO CARLSBAD CA 92009-9312 MYRA P STEINHARDT 3259 CAMINO CORONADO CARLSBAD CA 92009-9312 BETTY L KONELL 7952 CALLE COZUMEL CARLSBAD CA 92009-9317 VERNER G REXROTH 7951 CALLE COZUMEL CARLSBAD CA 92009-9318 DEBUTTS DEWEY I L 3262 CAMINO CORONADO CARLSBAD CA 92009-9311 CHARLES H MILLER 627 RANCHO SANTA FE RD ENCINITAS CA 92024-6543 KEVIN B MCGOURTY 3266 CAMINO CORONADO CARLSBAD CA 92009-9311 MARION & DELPHINE LONG 3270 CAMINO CORONADO CARLSBAD CA 92009-9311 JUANITA C MCCOLLQCH 3274 CAMINO CORONADO CARLSBAD CA 92009-9311 ELDON J HARGRAVES 7948 CALLE MADRID CARLSBAD CA 92009-9302 THEODORE A KUBASAK 2805 ATADERO CT CARLSBAD CA 92009-9201 ROBERT G LENNICK PMB 423 DEL MAR CA 92014-3100 SHARON A POWELL 7954 CALLE MADRID CARLSBAD CA 92009-9302 MILAN & LIDIA PLUHAR 7958 CALLE MADRID CARLSBAD CA 92009-9302 JOAN E PARKER 7960 CALLE MADRID CARLSBAD CA 92009-9302 LESTER C & JAMIE BACON 7962 CALLE MADRID CARLSBAD CA 92009-9302 KLEIN TR 3629 CALLE JAZMIN CALABASAS CA 91302-3073 CONRAD & ELIZABETH SUN 1058 QUAIL GARDENS CT ENCINITAS CA 92024-2782 JOHN DANDREA 7969 CALLE POSADA CARLSBAD CA 92009-9306 PATRICK M & KAREN FELLS 7967 CALLE POSADA CARLSBAD CA 92009-9306 f- 1' i_Ji-:l-)-L11W 7965 • CALLE POSADA CARLSBAD CA 92009-9306 7063 CALLE POSADA CARLSBAD CA 92009-9306 7961 CALLE POSADA CARLSBAD CA 92009-9306 ROBERT M KUHNS 7959 CALLE POSADA CARLSBAD CA 92009-9306 RAPPOLT 3218 CALLE VALLARTA CARLSBAD CA 92009-9309 TERRY L MCCAY 3220 CALLE VALLARTA CARLSBAD CA 92009-9309 TRIMBLE 3222 CALLE VALLARTA CARLSBAD CA 92009-9309 FRANK C HUMPHRIES - 3224 CALLE VALLARTA CARLSBAD CA 92009-9309 JOHN B LANG 110 AIRMAN CIR 99999 OFFUTT AFB NE 68113-4051 MERLE P TUCKER 3228 CALLE VALLARTA CARLSBAD CA 92009-9309 MICHAEL P GAUDIOSO 3230 CALLE VALLARTA CARLSBAD CA 92009-9309 PATRICK T KENNEY 3232 CALLE VALLARTA CARLSBAD CA 92009-9309 JAMES W WHEELER 3234 CALLE VALLARTA CARLSBAD CA 92009-9309 WILLIAM M MATSON 3236 CALLE VALLARTA CARLSBAD CA 92009-9309 CHARLES J NICHOLAS 3237 CALLE VALLARTA CARLSBAD CA 92009-9310 KURT & HARRIETT DAVEY 3235 CALLE VALLARTA CARLSBAD CA 92009-9310 JAMES J STEWART 3233 CALLE VALLARTA CARLSBAD CA 92009-9310 ARTHUR P ARQUILLA 3231 CALLE VALLARTA CARLSBAD CA 92009-9310 JOHN P COLE 3229 CALLE VALLARTA CARLSBAD CA 92Od9-9310 ARTHUR E TATOSKY 7711 CALINA WAY CARLSBAD CA 92009-8104 WILLIAM D FLORES 3225 CALLE VALLARTA CARLSBAD CA 92009-9.310 DAVID E & AMY CARROLL 3223 CALLE VALLARTA CARLSBAD CA 92009-9310 RAUL RIVERA 3221 CALLE VALLARTA CARLSBAD CA 92009-9310 ADAM P & TOME ZIPP 27292 LOST COLT DR LACUNA HILLS 92653-7843 MICHAEL S BURNETT PO BOX 230523 ENCINITAS CA 92023 ROBERT E Be GRACE LISLE 3215 CALLE VALLARTA CARLSBAD CA 92009-9310 JOEL K WILLIAM 3213 CALLE VALLARTA CARLSBAD CA 92009-9310 ROBERT P GLATHE 3211 CALLE VALLARTA CARLSBAD CA 92009-9310 BRUCE & JAMIE BUSHONG 3209 CALLE VALLARTA CARLSBAD CA 92009-9310 CHRISTOPHER M CIEPLEY 3207 CALLE VALLARTA CARLSBAD CA 92009-9310 MICHAEL J INEMAN .3205 CALLE VALLARTA CARLSBAD CA 92009-9310 ROB REED 3203 CALLE VALLARTA 'CARLSBAD CA 92009-9310 LANOIS 7973 CALLE MADRID iARLSBAD CA 92009-9303 DAVID & MAUREEN LOYND PO BOX 675827 RANCHO SANTA 92067-5827 DAVID A BERNATZ 7969 CALLE MADRID CARLSBAD CA 92009-9303 ROBERT T & LAURA POPE 7967 CALLE MADRID CARLSBAD CA 92009-9303 JARROD CAFARELLA 7965 CALLE MADRID CARLSBAD CA 92009-9303 DANIEL E & M BURCIAGA 7963 CALLE MADRID CARLSBAD CA 92009-9303 PETER & JULI DOUGLASS 7961 CALLE MADRID CARLSBAD CA 92009-9303 SLADER G BUCK 7959 CALLE MADRID CARLSBAD CA 92009-9303 ANDREE & KATHRYN GILLE 7957 CALLE MADRID CARLSBAD CA 92009-9303 STUART L HENDRIX 7955 CALLE MADRID CARLSBAD CA 92009-9303 TYRA 7953 CALLE MADRID CARLSBAD CA 92009-9303 CHRISTOPHER M GLOAD 6172 MARY LANE DR SAN DIEGO CA 92115-2421 ANGELO J SICCARDI 294 FLORA WAY GOLDEN CO 80401-5257 PAUL W LENNICK 20 HALCYON LN ALISO VIEJO C 92656-6211 COLINAS DE ORO COMMUNIT 23161 MILL CREEK DR 200 LAGUNA HILLS 92653-1649 DONALD R GARCZEWSKI 3284 AVENIDA ANACAPA CARLSBAD CA 92009-9301 ROBERT A & SHAROt| KUMPF 3280 AVENIDA ANACAPA CARLSBAD CA 92009-9301 ROBERT P Sc MARY WHITMAN 24 ADELE CT ALAMO CA 94507-2403 BRONSON C JACOWAY 4275 EXECUTIVE SQ 400 LA JOLLA CA 92037-1476 DAVID M & MARY BACKER 3272 AVENIDA ANACAPA CARLSBAD CA 92009-9301 ROBERT T SCHROPP 3270 AVENIDA ANACAPA CARLSBAD CA 92009-9301 THOMAS J & DEBRA SAUER 3268 AVENIDA ANACAPA CARLSBAD CA 92009-9301 WILLARD P ARENTZEN PO BOX 2233 RANCHO SANTA 92067-2233 CHERYL S HAWKINS 3260 CORTE MAZATLAN CARLSBAD CA 92009-9314 ALLAN W & DOROTHY ROFF 3258 CORTE MAZATLAN CARLSBAD CA 92009-9314 MICHAEL & SHERRY HURLEY 3256 CORTE MAZATLAN CARLSBAD CA 92009-9314 THOMAS A & SHERYL LLOYD 3254 CORTE MAZATLAN CARLSBAD CA 92009-9314 NANCY FRASER 3252 CORTE MAZATLAN CARLSBAD CA 92009-9314 PETER D & HELEN NIEML 3250 CORTE MAZATLAN 'CARLSBAD CA 92009-9314 DANIEL HUBEARD 7960 CALLE COZUMEL ..CARLSBAD CA 92009-9317 DEPAOLA 7958 CALLE COZUMEL .ARLSBAD CA 92009-9317 JOSEPH & REGIMOL THOMAS 7956 CALLE COZUMEL CARLSBAD CA 92009-9317 LARRY Sc ALICE BAKER 1555 MARITIME DR CARLSBAD CA 92009-4031 LORELEI MOLIN 7953 CALLE COZUMEL CARLSBAD CA 92009-9318 EUGENE R OVERHOLT 7955 CALLE COZUMEL CARLSBAD CA 92009-9318 JAMES HISSONG 7957 CALLE COZUMEL - CARLSBAD CA 92009-9318 FREDERICK J CAFARELLI 7959 CALLE COZUMEL CARLSBAD CA 92009-9318 ELLEN GILLIS 3248 AVENIDA ANACAPA CARLSBAD CA 92009-9301 WILLIAM L ALDRICH 3246 AVENIDA ANACAPA CARLSBAD CA 92009-9301 MIRIAM JUDD 3244 AVENIDA CARLSBAD CA ANACAPA 92009-9301 EDWARD V RYAN 3242 AVENIDA ANACAPA CARLSBAD CA 92009-9301 CHRISTOPHER R CAIRNS 3240 AVENIDA ANACAPA CARLSBAD CA 92009-9301 WILLIAM E & ANN HUNT 3241 AVENIDA ANACAPA CARLSBAD CA 92009-9301 JAMES T & GALE MOE 3243 AVENIDA ANACAPA CARLSBAD CA 92009-9301 GREGG M & KAREN LANDERS 3245 AVENIDA ANACAPA CARLSBAD CA 92009-9301 SCOTT R WOODWARD 3247 AVENIDA ANACAPA CARLSBAD CA 92009-9301 PETER C & ALICE KWONG 3249 AVENIDA ANACAPA CARLSBAD CA 92009-9301 ROMEL S BHULLAR 1780 BLACKBIRD CIR CARLSBAD CA 92009-5008 LESTER C & JAMIE BACON 3253 AVENIDA ANACAPA CARLSBAD CA 92009-9301 LINDA C SCOTT 3255 AVENIDA ANACAPA CARLSBAD CA 92009-9301 ROGER P BOENNIGHAUSEN 1982 STONECREST CT VISTA CA 92083-9016 PERRECONE TR 3259 AVENIDA CARLSBAD CA ANACAPA 92009-9301 MARJORY A SNEAD 3261 AVENIDA ANACAPA CARLSBAD CA 92009-9301 CHARLES E SHANKLIN 3263 AVENIDA ANACAPA CARLSBAD CA 92009-9301 WEBSTER 3265 AVENIDA CARLSBAD CA ANACAPA 92009-9301 JOHN B & NALANI WEBSTER 3267 AVENIDA ANACAPA CARLSBAD CA 92009-9301 ROBERT P ARSENAULT 3269 AVENIDA ANACAPA CARLSBAD CA 92009-9301 ROBERT M ATKINS 3271 AVENIDA ANACAPA CARLSBAD CA -92009-9301 KAPNAS 3275 AVENIDA ANACAPA 'CARLSBAD CA 92009-9301 RICHARD R £c JAJNELL RICr, 3275 AVENIDA ANACAPA CARLSBAD CA 92009-9301 MARSHA L LUKAVSKY 3279 AVENIDA ANACAPA CARLSBAD CA 92009-9301 CHRISTOPHER J KEMPSTON 3281 CORTE VERA CRUZ CARLSBAD CA 92009-9316 DANIEL L PASTEL 3283 CORTE VERA CRUZ CARLSBAD CA 92009-9316 KATHRYN A ROBERTS 3285 CORTE VERA CRUZ CARLSBAD CA 92009-9316 LA CRESTA AT COLINAS DE 3152 RED HILL AVE 100 COSTA MESA CA 92626-3418 CENTEX REAL ESTATE CORP 5962 LA PLACE CT 250 CARLSBAD CA 92008-8838 CONTINENTAL RESIDENTIAL 2237 FARADAY AVE 100 CARLS-BAD CA 92008 *** 159 Printed *** Cf September 29,1998 TO: CHRISTER WESTMAN, ASSOCIATE PLANNER FROM: Associate Engineer Quon REPLACEMENT CONDITIONS OF APPROVAL SHELLEY TRACT MAP, CT 90-3/PUD 90-4 The following are engineering conditions that are to replace the draft conditions for the above referenced project. The numbering of the following replacement conditions is the same as the numbering of the conditions in the DCC staff report and resolution no. 4350. Replace condition no. 36A with the following: Prior to approval of the first final map, the developer shall enter into a Prepayment Agreement with the City for prepayment of the developer obligation for the funding to improve Rancho Santa Fe Road, which will satisfy the special condition in the Zone 11 LFMP requiring a financing plan guaranteeing construction of Rancho Santa Fe Road. Please assign a separate number to this condition, as opposed to including it as a part of condition no. 36. Replace condition no. 36B with the following: Prior to approval of the final map for Units 2, 3, or 4, whichever is first, the developer shall enter into a Reimbursement Agreement with the City. This Agreement shall provide for the following basic items: 1. Rancho Santa Fe Road is designated as a Secondary Arterial with an 84' right-of-way width; 2. • The improvements to Rancho Santa Fe Road extend between the northerly property line of the Shelley project to Calle Acervo; 3. The Shelley project is responsible for the sidewalk, street trees, and street lighting along its project frontage; 4. Other Rancho Santa Fe Road items, as stated in the Reimbursement Agreement, are the financial responsibility of the City via the fees collected from the Shelley project and other property owners; 5. The Shelley project financial contribution to all contemplated City Rancho Santa Fe Road Community Facility District No. 2 projects is estimated at $10,250 per unit; 6. Payment of project costs during construction will be by Shelley, up to the equivalent estimated fee amount of the map units recorded until that time, with the balance paid for via progress payments from City collected fees set aside for this purpose; and 7. Final maps for Units 1 and 2 may record with a bond for the estimated $10,250 per dwelling unit fee for that map, which shall be reduced as project costs are paid by Shelley. Please assign a separate number to this condition, as opposed to including it as a part of condition no. 36. Replace condition no. 40A with the following: Prior to occupancy of any unit in Unit 1, the 60' wide offsite easement located along the southern boundary of Unit 1 shall be graded to the satisfaction of the City Engineer, subject to permits and access rights being available. The grading shall provide positive drainage to the existing storm drain inlets. Grading improvements are to be clearly indicated on the Unit 1 grading plans. Please assign a separate number to this condition, as opposed to including it as a part of condition no. 40. Replace condition no. 42 with the following: 42. The owner shall make an offer of dedication to the City for all public streets and easements required by these conditions or shown on the tentative map. The offer shall be made by a certificate on the final map for this project. All land so offered shall be granted to the City free and clear of all liens and encumbrances and without cost to the City. Streets that are already public are not required to be rededicated. The right-of- way width for Rancho Santa Fe Road shall be as designated on the circulation element of the General Plan, but in no case less than 84' of right-of-way width. Replace condition no. 43 with the following: 43. Prior to issuance of building permits, the developer shall underground all existing overhead utilities within the subdivision boundary. Replace condition nos. 46C and 46D with the following: C. Rancho Santa Fe Road, graded to City Major Arterial standards and constructed to full Secondary Arterial standards, along the Unit 3 frontage and south to Calle Acervo, including appropriate transitions. D. Storm drain improvements in Rancho Santa Fe Road along the Unit 3 frontage, in accordance with the City's Master Drainage and Storm Water Quality Management Plan. Replace condition no. 46F and 46G with the following: F. Rancho Santa Fe Road, graded to City circulation element designated Arterial width and constructed to full Secondary Arterial standards, along the Unit 4 frontage. G. Rancho Santa Fe Road, graded to City circulation element designated Arterial width and constructed to half street plus 12' of additional paving and appropriate transitions in accordance with Secondary Arterial standards, from the northerly property line of the project to the Rancho Santa Fe Road/Olivenhain Road intersection, but not including intersection and traffic signal improvements. H. A double box culvert, in accordance with the City's Master Drainage and Storm Water Quality Management Plan. If you have questions regarding any of the comments above, please contact me at extension 4380. KENNETH W. QUON Associate Engineer c: Public Works Director Bob Wojcik, Principal Civil Engineer COMMUNITY: SHELLEY ENG REPLACEMENT CONDITIONS 1 32. The developer shall provide for sight distance corridors at all street intersections in accordance with Engineering Standards and shall record the following statement on the 2 Final Map (and in the CC&Rs): 3 A. "No structure, fence, wall, tree, shrub, sign, or other object over 30 inches above 4 the street level may be placed or permitted to encroach within the area identified as a sight distance corridor hi accordance with City Standard Public Street-Design t Criteria, Section 8.B.3. The underlying property owner shall maintain this condition." Vt ' Fees/Agreements 8. 33. The developer shall pay all current fees and deposits required. 9 34. The owner of the subject property shall execute an agreement holding the City harmless regarding drainage across the adjacent property. 11 35. The owner shall execute a hold harmless agreement for geologic failure. <i 13 36. Prior to approval of any grading or building permits for this project, the owner shall give written consent to the annexation of the area shown within the boundaries of the subdivision plan into the existing City of Carlsbad Street Lighting and Landscaping c District No. 1 on a form provided by the City. "& 1:> € v16 ^ <=—• >cT Prior to approval of the first final map, the developer shall enter into a Prepayment Agreement with the City for prepayment of the developer ' '' obligation for the funding to improve Rancho Santa Fe Road,the. " ' .-.._.- .. *-> 18 tl *&£. MENAOPrior to approval of the first final map» the developer shall enter into a 19 Reimbursement Agreement with the City for reimbursement of the costs to -improve Rancho Santa Fe Road along the project frontage. 21 Grading 99 37. Based upon a review of the proposed grading and the grading quantities shown on the 93 tentative map, a grading permit for this project is required. The developer must submit and receive approval for grading plans in accordance with City codes and standards prior 24 to issuance of a building permit for the project. 25 „38. Prior to the issuance of a grading permit or building permit, whichever occurs first, the 26 developer shall submit proof that a Notice of Intention has been submitted to the State Water Resources Control Board. 28- PC RESO NO. 4350 -11- 39. Upon completion of grading, the developer shall ensure that an "as-graded" geologic plan is submitted to the City Engineer. The plan shall clearly show all the geology as exposed by the grading operation, all geologic corrective measures as actually constructed and must be based on a contour map which represents both the pre and post site grading. This plan shall be signed by both the soils engineer and the engineering geologist. The plan shall be prepared on a 24" x 36" mylar or similar drafting film and shall become a permanent record. 6 40. No grading for private improvements shall occur outside the limits of the subdivision unless a grading or slope easement or agreement is obtained from the owners of the 7 affected properties and recorded. If the developer is unable to obtain the grading or slope easement, or agreement, no grading permit will be issued. In that case the developer must 8 either amend the tentative map or modify the plans so grading will not occur outside the project site in a manner which substantially conforms to the approved tentative map as determined by the City Engineer and Planning Director. 10 •faf X; Prior to occupancy of any unit in Unit 1, the 60' wide offsite easement located1i ^r^ ^1 along the southern boundary of Unit 1 shall be graded, to the satisfaction of ,- the Citv Engineer, & pr&vide^positive drainage to the existing storm drain inlets. These grading improvements are to be clearly indicated on the Unit 1 13 V. grading plans. 14 '—• ^v e>ub\€dr -Vo permit^ &rd. accessDedications/Improvements 15 M 41. Additional drainage easements may be required. Drainage structures shall be provided or 16 installed prior to or concurrent with any grading or building permit as may be required by the City Engineer. 18 42. The owner shall make an offer of dedication to the City for all public streets and easements required by these conditions or shown on the tentative map. The offer shall be '" made by a certificate on the final map for this project. All land so offered shall be 90 granted to the City free and clear of all liens and encumbrances and without cost to the City. Streets that are already public are not required to be rededicated. The right-of-way 21 width for Rancho Santa Fe Road shall be as designated on the circulation element of the General Plan, bu^r \r\ ryp CO/5C, 4$^^ \C^» "VVviA &A*22 ^ »no^ \jr\ ->3 43. Prior to issuance of building permits, the developer shall underground all existing overhead utilities along, the subdivision boundary. 24 44. Direct access rights for all lots abutting Rancho Santa Fe Road and Calle Acervo shall be waived on the final map. 26 45. The developer shall comply with the City's requirements of the National Pollutant Discharge Elimination System (NPDES) permit. The developer shall provide best 78 PC RESO NO. 4350 -12- management practices as referenced in the "California Storm Water Best Management Practices Handbook" to reduce surface pollutants to an acceptable level prior to discharge to sensitive areas. Plans for such improvements shall be approved by the City Engineer. Said plans shall include but not be limited to notifying prospective owners and tenants of the following: 4 A. All owners and tenants shall coordinate efforts to establish or work with established disposal programs to remove and properly dispose of toxic and hazardous waste products. 7 B. Toxic chemicals or hydrocarbon compounds such as gasoline, motor oil. antifreeze, solvents, paints, paint thinners, wood preservatives, and other such fluids shall not be discharged into any street, public or private, or into storm drain 9 C. or storm water conveyance systems. Use and disposal of pesticides, fungicides, 10 herbicides, insecticides, fertilizers and other such chemical treatments shall meet Federal, State, County and City requirements as prescribed in their respective containers. 12 D. Best Management Practices shall be used to eliminate or reduce surface pollutants when planning any changes to the landscaping and surface improvements. 14 46. Plans, specifications, and supporting documents for all public improvements shall be 1 5 prepared to the satisfaction of the City Engineer. In accordance with City Standards, the developer shall install, or agree to install and secure with appropriate security as provided by law, improvements shown on the tentative map and the following improvements: 17 Units 1 and 2 18 19 • A. All streets within Units 1 and 2, constructed in accordance with City standards. 20 Unit3 22 B. All streets within Unit 3, constructed in accordance with City standards. 23 C. Rancho Santa Fe Road, graded to City circulation element designated 24 Arterial standards and constructed to full Secondary Arterial standards, along the Unit 3 frontage and south to the City boundary, including 25 appropriate transitions. CoAAc, D. Storm drain improvements in Rancho Santa Fe Road^in accordance with the 27 City's Master Drainage and Storm Water Quality Management Plan. 28 PC RESO NO. 4350 -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Unit 4 E. All streets within Unit 4, constructed in accordance with City standards. F. Rancho Santa Fe Road, graded to City circulation element designated Arterial width and constructed to full Secondary Arterial standards, along the Unit 4 frontage iofeU«H#i<«rfl^&^ \akGBsw<foxiJiBD/ti&^^ & • See. mei-vw? • \\.Q. A double box culvert, in accordance with the City's Master Drainage and Storm Water Quality Management Plan. A list of the above improvements shall be placed on an additional map sheet on the final map per the provisions of Sections 66434.2 of the Subdivision Map Act. Improvements listed above shall be constructed within 18 months of approval of the secured improvement agreement or such other time as provided in said agreement. 47. Drainage outfall end treatments for any drainage outlets where a direct access road for maintenance purposes is not provided, shall be designed and incorporated into the grading/improvement plans for the project. These end treatments shall be designed so as to prevent vegetation growth from obstructing the pipe outfall. Designs could consist of a modified outlet headwall consisting of an extended concrete spillway section with longitudinal curbing and/or radially designed rip-rap, or other means deemed appropriate, as a method of preventing vegetation growth directly in front of the pipe outlet, to the satisfaction of the Community Services Director and the City Engineer. Final Map Notes 48. Notes to the following effect shall be placed on the final map as non-mapping data: Geotechnical caution: A. The owner of this property on behalf of itself and all of its successors in interest has agreed to hold harmless and indemnify the City of Carlsbad from any action that may arise through any geological failure, ground water seepage or land subsidence and subsequent damage that may occur on, or adjacent to, this subdivision due to its construction, operation or maintenance. B. No structure, fence, wall, tree, shrub, sign, or other object over 30 inches above the street level may be placed or permitted to encroach within the area identified as a sight distance corridor in accordance with City Standard Public Street-Design Criteria, Section 8.B.3. The underlying property owner shall maintain this condition. PC RESO NO. 4350 -14- Hofmon Planning Associates RECEIVED OEC 0 6 2001 ENGINEERING T>. , ,- ™A1December 6, 2001 Bob Wojcik 1635 Faraday Avenue Carlsbad, Ca. 92008 RE: Revised Grading for Tiburon Phase 4 of CT 90-03 Dear Bob: This letter is to confirm that the modifications being proposed to the grading of Tiburon as shown by the exhibit submitted to the City on November 19. 2001 are acceptable to the Engineering Department and Planning Department. On the morning of December 5th Dave Lother, Dave Ragland and I met with Gary Wayne to discuss the proposed modifications. Gary believed that it was basically an Engineering issue and said that he would discuss it with you later that day. That afternoon I received a call from John Maashoff of the Engineering Department stating that the modifications were acceptable to you. Later that same day, I received a voice mail from Gary Wayne, stating that if the modifications were acceptable to the Engineering Department they were acceptable to the Planning Department. Based on these responses PDC will be processing construction changes to reflect the modifications to the grading of this site. If I have misunderstood anything, please contact me as soon as possible. Continental Homes appreciates your cooperation in this matter. \ Sincerely, MlkeHowes " CA****, cc Gary Wayne Jeremy Riddle Christer Westman Dave Lother 5900 Pasteur COU:T • Suite 150 • Carlsnod • CA 92008 • (760)438-1465 • Fax: (760)438-2443 > November 19, 2001 Gary Wayne Assistant Planning Director City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 NOV 1 B 2001 ENGiNEERiNC DEPARTMENT Continental Homes 2237 Faraday Avenue, Suite 100 Carlsbad, California 92008 (760)931-1980 Fax (760) 931-0237 www.cohtffl5Tnaisocal.co pr Subject: Shelley Property CT - 90-03: Request ijpr Adjustment of Grades in Unit 4 Dear Gary: >s^ - . i The grading of Units 2 and 3 and the eastern side of RancEto Santa Fe Road has now been ^\ completed for this project. Streets have been constructed ano~p^ved~ml5ft&-2-an$l all utilities have been installed in the streets in Unit 3. Due to the nature of this complex; operation, the grading for Unit 4 is performed last. As we have approached the end/bf the grading operation, we discovered that the site does not balance as we anticipated. After considerable research we believe the reason is due to incorrect assumptions for bulk^and \ shrink. The total imbalance for the project is estimated to be 68,000 CY. The redesign that v^ are proposing will solve approximately 45,000 CY of the imbalance and we will still need away the remaining 23,000 CY. Our contractor has applied for a haul permit for the remainder and we expect to begin hauling it away next week. Our civil engineering consultant has prepared the enclosed exhibit showing the proposed revised grades for Unit 4. We believe it is in the best interests of all parties to allow this revision. Our reasons are as follows: iul S 1. Hauling away of 45,000 C Y of soil will result in approximately 3,200 truck trips on City roads. The route that we are being required to use is extremely circuitous and will add dust, pollution, and noise. It will certainly be a nuisance to the nearby residents. 2. We have modified our proposed revisions so that we are raising grades approximately one foot along the northern edge of Unit 4. This northern edge is against the existing homes that the City is concerned about. 3. Many of the adjacent homes are substantially higher in elevation than our proposed pad grades, and in our opinion, are not impacted by this change. The other adjacent homes have pad grades that are relatively close to our pad grades, and therefore are going tq, have their views impacted regardless of this proposed change. 4. Our proposed revisions are within the limits set in the City's policy on Substantial Conformance that allows for staff to approve the revisions without further public review. 5. At our recent hearing at Planning Commission for approval of the PUD Amendment there were no neighbors who spoke for or against the project. 6. The changes to grades can be made without shifting any lot lines or making revisions to sewer profiles or storm drain profiles. 7. Hauling fee 45,000 CY away will add about four weeks to our schedule, which will put us deeper into the rainy season. We propose that the revision be approved through staff level Substantial Conformance and submittal of a construction change of the approved grading plans. The time factor is very important to us at this stage of development and we would like to meet with you and Bob Wojcik as soon as possible to discuss. Thank you for your consideration of this request. Very truly yours, Continental Residential, Inc. David Lother Vice President, Development cc Bob Wojcik - City of Carlsbad (with enclosure) Jeremy Riddle - City of Carlsbad (with enclosure) Mike Howes - Hofman Planning Dave Ragland - Project Design Consultants c:\msoffice\winword\dave\letters\wayne.doc ff^ \^ City of Carlsbad Public Works — Engineering November 2, 2001 David Lother Continental Homes 2237 Faraday Avenue, Suite 100 Carlsbad, CA 92008 SUBJECT: PROPOSED PAD ELEVATION CHANGES TO CT 90-03 SHELLEY UNIT 4 (TIBURON) Dear Mr. Lother: On October 4, 2001 your Engineer-of-work submitted a construction revision to drawing 380-1F. This revision proposes to raise all pad elevations on Unit 4. From our review it appears the pads would be raised between 1 and 4 feet from those previously shown on the approved Tentative Map (CT 90-03) and the approved grading plans (drawing 380-1F). When we returned the revision back to your Engineer, we noted the proposed changes trigger a substantial conformance review. When we met on October 25, 2001, we informed you that this change would impact the existing adjacent development and that staff could not discard their concerns. We also informed you that submitting a substantial conformance exhibit would not guarantee you an approval for the proposed changes. Based on this information, you requested that I determine staff's general position of raising the pad elevations. During the public hearing of the Tentative Map in 1998, the existing adjacent residents raised their concerns on pad heights. Their concerns have also been reiterated to our inspectors during grading operations. Based on our review of the pad elevation changes to all of unit 4 and the proximity of Unit 4 to the existing adjacent development, both Engineering and Planning would be unable to approve the changes at staff level. These changes require additional noticing, review, discussion, and approval in a public hearing process. If you still wish to pursue the additional fill on unit 4, you may consider amending the Tentative Map for CT 90-03, If you have any further questions, please feel free to call me at 760-602-2737. C: Bob Wojcik, Deputy City Engineer Gary Wayne, Assistant Planning Director Christer Westman, Project Engineer Don Moore, Construction Manager Duane Soileau, Project Inspector File 1635 Faraday Avenue • Carlsbad, CA 92008-7314 • (76O) 602-2720 • FAX (760) 602-8562 '»«-»' From: Jeremy Riddle To: dan marquardt Date: 10/23/01 5:08PM Subject: TiburonUnit4 Dan: I wanted to inform you that Tiburon Unit 4, SDP 01-07 has been indefinitely continued from going to Planning Commission hearing until discrepancies in the SDP exhibits are resolved. The SDP exhibits that were provided to the City on October 4, 2001 include pad elevation changes that were never disclosed to either planning or engineering staff. These pad elevations shown on the current SDP plans do not match the approved Tentative Map (CT 90-03) nor the approved grading plans (dwg 380-1F). Since pad elevation changes were not disclosed to staff, the staff report does not accurately reflect the project description nor staffs recommended action towards the project. The most expedient way to have this project placed back on Planning Commsssion agenda is to resubmit SDP exhibits so pad elevations match those per CT 90-03 and the SDP exhibits presented to staff in August, 2001. It appears you propose to raise every pad elevation on unit 4 at least 1-4 feet higher than previously apporved. This proposal will not likely be supported by planning and engineering staff. Existing residents have expressed their concern that pad elevations of this project match those per the CT and grading plans. Considering this, staff may only permit pads within unit 4 be raised no more than 1 foot. All lots in unit 4 immediately adjacent to the existing community will not be permitted to be raised at all. Since there are so may lots within CT 90-03, staff would suggest the additional soil on Unit 4 is spread out among the lots on Arroyo Vista Unit 3. This will result in pads raised so they are not so close to the existing community (lessening the impact). Call me at 760-602-2737 to discuss the pad elevation issues or Christer Westman to corrodinate scheduling this from PC hearing again. Please pass this e-mail to those who need it. Thanks. Jeremy L. Riddle Associate Engineer City of Carlsbad Public Works-Engineering jridd@ci.carlsbad.ca.us CC: BobWojcik; Christer Westman Hofman Planning Associates Planning Project Management Fiscal Analysis Memorandum DATE: December 18,2001 TO: Jeremy Riddle FROM: Stuart Fisk (RP) SUBJECT: Set of Mailing Labels for Tiburon Street As requested, attached to this memo is the set of mailing labels for the Tiburon project to be used for the street vacation application. Please call me if you have any questions or need additional information. tf 5900 Pasteur Court • Ste 150 • Carlsbad • CA • 92008 • 760-438-1465 • Fax 760-438-2443 City of Carlsbad Planning Department July 15, 2002 17 2002 Don MacKay Continental Homes 5927 Priestly Avenue, #200 Carlsbad, CA 92008 RE: CT 90-03 - CAMINO ALEGRE Dear Mr. MacKay: The street name Camino Alegre which is used in the Arroya Vista project has been used elsewhere in the City of Carlsbad and must therefore be changed. The name can be changed by a certificate of correction to the final map. Please coordinate with the City of Carlsbad Planning Department on a new name before the certificate of correction is executed. If you should have any question, please contact me at (760) 602-4614. Sincerely, Christer Westman, AICP Senior Planner CW:mh c: Brandon Nichols 1635 Faraday Avenue • Carlsbad, CA 92OO8-7314 • (76O) 6O2-46OO • FAX (760) 6O2-8559 • www.ci.carlsbad.ca.us PROJECTDESIGN CONSULTANTS PLANNING • ENVIRONMENTAL • ENGINEERING • SURVEY/GPS File: 1602.60 July 29, 2002 Mr. Michael J. Holzmiller CITY OF CARLSBAD 1635 Faraday Avenue Carlsbad, CA 92008 SUBJECT: Street Name Change in Arroyo Vista (Shelley Unit 3) Dear Michael, Per the attached letter from the City of Carlsbad dated July 15, 2002, PDC is processing a Certificate of Correction to accommodate the City's request. Additionally, PDC is requesting, on behalf of Continental Homes, that the processing fee for the Certificate of Correction be waived due to the City's oversight when originally approving the street names approximately three years ago. If you have any questions regarding this information, please do not hesitate to call myself, or Dave Ragland at 619-235-6471. Sincerely, O-cU Dann E. Marquardt, Senior ProjectVEngineer Attachment cc: Bob Wojcik J. LETTER/16026STNAME.DOC 701 B Street, Suite 800 San Diego, California 92101 619-235-6471 Tel 619-234-0349 Fax 0 Recycled Paper City of Carlsbad ENGINEERING DEVELOPMENT SERVICES 4- MEMORANDUM October 24, 2001 TO: Christer Westman, Planning FROM: Jeremy Riddle, Engineering< SUBJECT: FIRST REVIEW OF CC&R'S FOR TIBURON UNIT 4, SOP 01-07 The Engineering Department has completed a review of the above subject. Please have the applicant address the following issues: 1. On page 1 complete the record information for the recorded map for Shelley unit 2. 2. Add a new paragraph under Section 9.2 (c) that reads like: (c) The Association shall perform regular maintenance and repairs as required to Cost Center Area amenities located within the Common Maintenance Area and Common Area. Cost Center Area amenities may include, but are not limited to, private street paving, curb, gutter, sidewalk, driveways, street lights, parks, trails, gated entrances, signage, striping, etc. 3. Clarify if it is feasible to identify the Common Area, Common Maintenance Area and Cost Center Area for Tiburon Unit 4? It seems like the CC&R's could set up the foundation for this versus leaving it up the Association or Declarant to set up the areas and amenities later. 4. On page 36, Continental Residential, Inc. is listed as the Declarant. However, Exhibit "A" that details "all the property" includes Shelley Unit 1, which the City understands to be owned by Daniel T. Shelley. Should Daniel T. Shelley be included as the Declarant also? Revise the document to clarify the issue. 5. On exhibit A, complete the record information for "all the property" since all these maps have recorded some time ago. 6. On exhibit A, list the total number of lots for each final map included within the boundaries of this project. If you have any questions, please either see or call me at 760-602-2737. Attachment c: Bob Wojcik, Deputy City Engineer (w/o attachment) File Continental Homes 2237 Faraday Avenue, Suite 100 Carlsbad, California 92008 (760)931-1980 Fax (760) 93 1-0237 www.continentalsocal.com City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Attention: Christer Westman Planning Department Subject: Arroyo Vista - Unit 4 Dear Christer: Enclosed is a summary from our attorney demonstrating the fact that our CC&R's as presently drafted already address the potential for private streets and a gated entrance in Unit 4. Would you please let us know if Condition 23 of Planning Comm. Resolution 5062 is satisfied. We would like to find out now since we intend on recording these CC&R's very soon. Please call if you should have any questions. Very truly yours, Continental Residential, Inc. David Lother Vice President of Development RECEIVED OCT 1 I 2001 CITY OF CARLSBAD PLANNING DEPT. / H hi fl&f A »* A *» G:\adminlstradve\OFFICE\Kathleen\Dave L4th4r\Aifafo Vl^ta |Q-}W)i HECHT SOIJBERG ROBINSON i GOLDBERG——_.,——==ssL L p A. JOHN HECHT ATTORNEY AT LAW E-Mail: AJH@hsrg.com October 9, 2001 Mr. David Lother Via Overnight Mail Continental Homes 2237 Faraday Avenue, Suite 100 Carlsbad, California 92008 Re: CARLSBAD TRACT 90-03 (Arroyo Vista) Dear David: You have asked that we identify the provisions in the Declaration of Restrictions we prepared which address the possibility of private streets being constructed within Unit No. 4. Please see the following provisions: Section 1.9 This Section allows a Cost Center to be established for private street maintenance. Section 4.2 (c) This is a Cost Center provision. Section 4.2 (d) This is a Cost Center provision. Section 7.20 This provision allows the Board to restrict automotive parking on private streets. Section 7.21 This provision allows the Board to restrict recreational vehicle parking on private streets. The private streets would be either Common Area, if the Unit No. 4 map establishes separate street lots, or Common Maintenance Area, if a cross easement system is used instead of separate street lots. The maintenance and other provisions in the Declaration which pertain to Common Area or Common Maintenance Area would also apply to any private street system. See for example Section 9.2 which provides for Association maintenance of the Common Area and Common Maintenance Area. The same is true for any private storm drain system within private streets. ATTORNEYS AT LAW 600 WEST BROADWAY, EIGHTH FLOOR SAN DIEOO, CALIFORNIA 92101 TELEPHONE 619.239.3444 FACSIMILE 619.232.6828 Mr. David Lother October 9, 2001 Page 2 I have enclosed a copy of the latest draft of the Declaration of Restrictions. Please let me know the final decision on whether there will be a private street system for Unit No. 4. Very truly yours, AJH/jj Enclosure ht, A.P.L.C. , SOLBERG, ROBINSON & GOLDBERG LLP Recording Requested By and When Recorded Return To: HECHT, SOLBERG, ROBINSON & GOLDBERG LUP Mr. John Hecht 600 West Broadway, Eighth Floor San Diego, California 92101 DECLARATION OF RESTRICTIONS FOR ARROYO VISTA PLANNED DEVELOPMENT T:\AJH\CH\ArroyoVista\CCRS-18Sept01.wpd TABLE OF CONTENTS RECITALS 1 ARTICLE I DEFINITIONS 2 Section 1.1 Annexable Property 2 Section 1.2 Articles 2 Section 1.3 Association 2 Section 1.4 Board 2 Section 1.5 Bylaws 2 Section 1.6 City 2 Section 1.7 Common Area 2 Section 1.8 Common Maintenance Area 2 Section 1.9 Cost Center Amenities 2 Section 1.10 Cost Center Area 3 Section 1.11 Cost Center Assessments 3 Section 1.12 Declarant 3 Section 1.13 Declaration 3 Section 1.14 Final Maps 3 Section 1.15 Lot 3 Section 1.16 Member 3 Section 1.17 Mortgage 3 Section 1.18 Mortgagee 3 Section 1.19 Owner 3 Section 1.20 Phase 4 Section 1.21 Project 4 Section 1.22 Retail Purchaser 4 ARTICLE II PROPERTY RIGHTS IN COMMON AREA; CERTAIN ASSOCIATION RIGHTS RE COMMON AREA AND COMMON MAINTENANCE AREA 4 Section 2.1 Owners' Easement of Use 4 Section 2.2 City Easement 5 Section 2.3 Delegation of Use 5 Section 2.4 Conveyance of Common Area 5 Section 2.5 Use of Recreational Vehicle Storage Area 5 ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 6 Section 3.1 Membership 6 Section 3.2 Voting Rights 6 ARTICLE IV COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION . 7 Section 4.1 Creation of Lien and Personal Obligation for Assessments 7 Section 4.2 Purpose of Assessments 7 Section 4.3 Limitation on Regular and Special Assessments 8 Section 4.4 Limitation on Cost Center Assessments 9 Section 4.5 Individual Special Assessments 10 Section 4.6 Uniform Rate of Assessment 10 T:\AJH\CH\Arroyo Vista\CCRS-18S8pt01.wpd PAGE Section 4.7 Date of Commencement of Regular Assessments; Due Dates 10 Section 4.8 Model Homes 10 Section 4.9 Uncompleted Facilities 10 Section 4.10 Effect of Non-Payment of Assessments; Remedies of Association 11 Section 4.11 Subordination of the Lien to First Mortgages 12 Section 4.12 Estoppel Certificate 12 Section 4.13 Personal Liability of Owner 12 Section 4.14 Exempt Property 12 Section 4.15 Assessments Levied By City 12 Section 4.16 Schedule of Monetary Penalties 13 Section 4.17 Assessment Amounts May Differ From Budget 13 ARTICLE V GOVERNMENTAL REGULATIONS 13 Section 5.1 Project Is Subject to Regulations 13 Section 5.2 City Not Responsible to Enforce 13 ARTICLE VI ARCHITECTURAL CONTROL 13 Section 6.1 Architectural Committee 13 Section 6.2 Committee Approval 14 Section 6.3 Other Approvals 14 Section 6.4 Approved Conditions 14 Section 6.5 Notification 15 Section 6.6 Waiver 15 Section 6.7 No Liability 15 Section 6.8 Design Criteria 15 Section 6.9 Variances 15 Section 6.10 Committee Guidelines 16 Section 6.11 Consultants 16 Section 6.12 Declarant Exemption 16 ARTICLE VII USE RESTRICTIONS 16 Section 7.1 In General 16 Section 7.2 Residential Use 16 Section 7.3 New Building Only 16 Section 7.4 Balconies, Decks and Fences 16 Section 7.5 No Second-Hand Materials, Painting Required 17 Section 7.6 Solar Panels, Antennae, Satellite Dishes 17 Section 7.7 Diligence in Construction Required 17 Section 7.8 Drying Yards 17 Section 7.9 No Time-Share Projects 17 Section 7.10 Signs 17 Section 7.11 Animals 18 Section 7.12 No Commercial Activity; No Nuisance 18 Section 7.13 Drainage 18 Section 7.14 Surface and Subsurface Drainage Systems 18 Section 7.15 Slope Control, Use and Maintenance 19 Section 7.16 No Hazardous Activities 19 T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd PAGE Section 7.17 Unsightly Articles 19 Section 7.18 No Temporary Structures 19 Section 7.19 Garages; Parking Spaces; Vehicular Restrictions 19 Section 7.20 Parking in Driveways or Private Streets 20 Section 7.21 No Recreational Vehicles 20 Section 7.22 Weeds, Rubbish, Sanitary Containers, etc 20 Section 7.23 Plants 20 Section 7.24 Landscaping 20 Section 7.25 Grading 20 Section 7.26 Owners Responsible for Damage 20 Section 7.27 Construction and Sales Activities 20 Section 7.28 Owners May Not Change Common Area or Common Maintenance Area 21 Section 7.29 Water and Sewer Systems 21 Section 7.30 Sight Distance Corridors 21 Section 7.31 Open Space Easements 21 Section 7.32 Post-Tensioned Slabs 21 Section 7.33 Reduction of Surface Pollutants 21 Section 7.34 Outdoor Lighting 22 ARTICLE VIII INSURANCE AND CONDEMNATION 22 Section 8.1 Insurance 22 Section 8.2 Condemnation 23 ARTICLE IX MAINTENANCE RESPONSIBILITIES; RESTRICTIONS ON REMOVAL OF NATIVE VEGETATION 23 Section 9.1 Parties Responsible for Maintenance of Common Area 23 Section 9.2 Association Maintenance 23 Section 9.3 Owner Maintenance 24 Section 9.4 Association's Right to Repair Neglected Lots 24 Section 9.5 City's Rights If Association Fails to Maintain 25 ARTICLE X ANNEXATION 25 Section 10.1 By Association 25 Section 10.2 By Declarant 25 ARTICLE XI RIGHTS OF LENDERS 26 Section 11.1 Payments of Taxes or Premiums by First Mortgagees 26 Section 11.2 Priority of Lien of Mortgage 26 Section 11.3 Curing Defaults 26 Section 11.4 Approval of First Mortgagees 26 Section 11.5 Restoration of Common Area 27 Section 11.6 Professional Management 27 Section 11.7 Notice to Mortgagees 27 Section 11.8 Documents to be Available 27 Section 11.9 Conflicts 28 ARTICLE XII CONSTRUCTION DEFECT DISPUTES 28 T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd Section 12.1 Section 12.2 Section 12.3 Section 12.4 Section 12.5 ARTICLE XI11 Section 13.1 Section 13.2 Section 13.3 Section 13.4 Section 13.5 Section 13.6 Section 13.7 Section 13.8 Section 13.9 Definitions 28 Dispute Notification and Resolution Procedure 28 Judicial Reference of Certain Disputes 30 Judicial Reference In Purchase Agreements 31 No Amendment Without Declarant's Consent 31 GENERAL PROVISIONS 32 Enforcement 32 Severability 32 Amendments 32 Extension of Declaration 33 Encroachment Easements 33 Special Responsibilities of Association 34 Litigation 35 Limitation of Restrictions on Declarant 35 Easement to Inspect and Test 35 SUBORDINATION AGREEMENT(S) EXHIBIT "A" All the Property EXHIBIT "B" Common Maintenance Area - Phase 1 T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -IV- DECLARATION OF RESTRICTIONS Arroyo Vista THIS DECLARATION OF RESTRICTIONS ("Declaration") is made as of 2000, by CONTINENTAL RESIDENTIAL, INC., a California corporation, (hereinafter referred to as "Declarant"), with reference to the following RECITALS: A. Declarant is the owner of the real property located in the City of Carlsbad, County of San Diego, California, described as: ._-.• "^Lots 61 through 72, inclusive, [need to insert any common area I lots, if any in Phase 1] of CARLSBAD TRACT 90-03 SHELLEY / PROPERTY UNIT NO. 2, according to Map thereof No. , V filed with the County Recorder of San Diego County, California ^"} on 200_. ^/ «Pf OV-07 which real property is referred to herein as "Phase 1". UVUT 4- \ * B. Phase 1 is the first Phase of real property which may become subject to this Declaration. Pursuant to the Section below entitled "Annexation", Declarant may from time to time annex to this Declaration and to the jurisdiction of CARLSBAD ARROYO VISTA HOMEOWNERS ASSOCIATION, a California nonprofit mutual benefit corporation (the "Association") some or all of the additional real property described on Exhibit "A" (the "Annexable Property") as additional Phases. This Declaration initially encumbers only Phase 1. Reference in this Declaration to the "Project" refers to Phase 1 described above and such additional Phases as become annexed to this Declaration. C. Declarant plans to develop the Project as a Common Interest Development described in §1351(k) of the California CIVIL CODE as a "Planned Development" consisting of single-family detached homes, together with common areas as described in this Declaration. There is no guarantee that all Phases will be developed or annexed to this Declaration or developed or annexed in any particular order. Some Phases may be developed concurrently. Declarant reserves the right during the development of the Project to change the phasing and the design, size, type and price of the homes to be built in the Project and the construction and phasing of the development of the Project. D. The owners of residential lots will be members of the Association. The Associ- ation shall also own and maintain certain real property ("Common Area") and shall maintain the Common Maintenance Area, being portions of certain Lots upon which maintenance easements have been granted to the Association. E. Before selling any of the residential lots, Declarant wishes to impose the following plan of covenants and restrictions on Phase 1 and on each additional Phase which becomes annexed to this Declaration. T:\AJH\CH\Arroyo Vista\CCRS-1 BSeptOI .wpd -1- F. ARTICLE XII OF THIS DECLARATION SETS FORTH MANDATORY PROCEDURES FOR THE RESOLUTION OF CONSTRUCTION DEFECT DISPUTES, INCLUDING THE WAIVER OF THE RIGHT TO A JURY TRIAL FOR SUCH DISPUTES. NOW, THEREFORE, Declarant hereby certifies and declares and does hereby estab- lish the following general plan for the protection and benefit of all of the Project and has fixed and does hereby fix the following protective covenants and restrictions upon each and every ownership interest in the Project under which covenants and restrictions each ownership interest shall be held, used, occupied, leased, sold, encumbered, conveyed and/or trans- ferred. Each and all of the covenants and restrictions are for the purpose of protecting the value and desirability of and shall inure to the benefit of and shall run with and be binding upon and pass with each Lot and Common Area within the Project and each and every owner- ship interest therein and shall inure to the benefit of, apply to and bind the respective succes- sors in title or interest of Declarant. The covenants and restrictions herein set forth are enforceable equitable servitudes as described in California CIVIL CODE Section 1354. ARTICLE i DEFINITIONS Section 1.1. "Annexable Property" — The real property described on Exhibit "A" attached hereto other than Phase 1. Section 1.2. "Articles" — The Articles of Incorporation of the Association. Sectionl.3. "Association" — CARLSBAD ARROYO VISTA HOMEOWNERS ASSOCIATION,, a California Nonprofit Mutual Benefit Corporation. Section 1.4. "Board" — The Board of Directors of the Association. Section 1.5. "Bylaws" — The Bylaws of the Association. Section 1.6. "City" — The City of Carlsbad, California, a municipal corporation. Section 1.7. "Common Area" — All real property owned in fee by the Association. Section 1.8. "Common Maintenance Area" — Those portions of the Project which, in addition to the Common Area, the Association is obligated to maintain. The Common Maintenance Area within Phase 1 includes those portions of the Lots within Phase 1 which are shown and described on Exhibit "B" attached hereto. The Common Maintenance Area will also include those portions of those Lots in subsequent Phases which are shown and described on a Notice of Declaration of Annexation or other recorded instrument signed by Declarant. "Common Maintenance Area" shall also include any areas within public rights of way which the Association is required by the City to maintain. For example, it is intended that the Association maintain a pedestrian trail. Section 1.9. "Cost Center Amenities" shall mean and refer to those Association maintained amenities which are located within the Cost Center Area and are likely to be used primarily by the Owners within the Cost Center Area. The instrument (e.g., the Notice of Declaration of Annexation) which identifies a Cost Center Area shall also identify the T:\AJH\CH\ArroyoVista\CCRS-18Sept01.wpd -2- applicable Cost Center Amenities. Two examples of amenities which may be Cost Center Amenities would be (i) private streets and/or gates which are internal to a Cost Center Area and which serve primarily that area and (ii) a private park which generally serves a Cost Center Area but is isolated from other portions of the Project and not likely to be used by Owners outside of the Cost Center Area. Section 1.10. "Cost Center Area" shall mean and refer to a portion of the Project which has been designated to be within a specific Cost Center Area by a recorded document (such as a Notice of Declaration of Annexation) signed by Declarant and signed by each person who owns any portion of such area at the time the document designating the Cost Center Area is recorded. Section 1.11. "Cost Center Assessments" shall mean and refer to an additional component of Association regular assessments or special assessments against the Lots, which lie within a particular Cost Center Area, for payment of the operating costs and reserves and other items applicable to the Cost Center Amenities within the Cost Center Area. Unless stated otherwise, reference to "regular assessments" or "special assessments" in this Declaration shall also refer to the Cost Center Assessments with respect to the Lots within a Cost Center Area. Section 1.12. "Declarant" —CONTINENTAL RESIDENTIAL, INC., a California corporation,, its successors and assigns, if such successor or assign should acquire more than five (5) Lots for the purpose of development, and the rights of "Declarant" are assigned to them. The rights of Declarant shall be deemed assigned to any lender of Declarant whose loan is secured by a Mortgage which encumbers any portion of the Project. Section 1.13. "Declaration" — This Declaration of Restrictions. Section 1.14. "Final Maps" — The final subdivision maps and parcel maps (if any) covering the Project. Section 1.15. "Lot" — Any plot of land shown as a separate lot or parcel upon any recorded Final Map of any portion of the Project, with the exception of the Common Area. In the event the boundaries of any Lot are adjusted in compliance with the California Subdivision Map Act, then "Lot" shall refer to the Lot as so adjusted. Section 1.16. "Member" — An Owner who is entitled to membership in the Associ- ation as provided in the Declaration. Section 1.17. "Mortgage" — A Deed of Trust as well as a mortgage encumbering a Lot. Section 1.18. "Mortgagee" — The beneficiary of a Deed of Trust as well as the mortgagee of a Mortgage. Section 1.19. "Owner" — The record owners, whether one or more persons or entities, of fee simple title to any Lot, including contract sellers, but excluding those having such interests merely as security for the performance of an obligation. T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -3- Section 1.20. "Phase" — Phase 1 is a Phase and each subsequent Phase shall consist of those Lots (and Common Area) within the Project which Declarant designates as a Phase in a Notice of Declaration of Annexation or other recorded document. Unless Declarant should make a contrary designation, those Lots and Common Area covered by a separate Final Subdivision Public Report (or described in a Final Subdivision Public Report as constituting a separate phase) shall constitute a Phase. "Final Subdivision Public Report" refers to such report issued by the California Department of Real Estate as the report may be amended from time to time. One or more Phases may be annexed by the same Notice of Declaration of Annexation. Section 1.21. "Project" — Phase 1 and each additional Phase which is annexed to this Declaration. Section 1.22. "Retail Purchaser" — A person who purchases a Lot under authority of a Final Subdivision Public Report issued by the California Department of Real Estate. Neither Declarant nor any successive Declarant are Retail Purchasers. ARTICLE II PROPERTY RIGHTS IN COMMON AREA: CERTAIN ASSOCIATION RIGHTS RE COMMON AREA AND COMMON MAINTENANCE AREA Section 2.1. Owners' Easement of Use. Every Owner shall have a right and easement of ingress, egress and of enjoyment in and to such Common Area which easement shall be appurtenant to and shall pass with the title to the Owner's Lot. Such right and easement shall be subject to the following provisions: (a) The right of the Association to suspend the voting rights and right to use of the Common Area by an Owner for any period during which any Association assessment against his Lot remains unpaid; and for a period not to exceed thirty (30) days for any infraction of the published rules and regulations of the Association. No suspension shall be effective unless the Owner has been given fifteen (15) days' prior notice of the suspension and the reasons therefor and the Owner has been given an opportunity to be heard by the Board, orally or in writing, not less than five (5) days prior to the effective date of the suspension. Notice may be given to the Owner by any method reasonably calculated to provide actual notice, but if given by mail must be given by first-class or registered mail sent to the last address of the Owner shown on the records of the Association. (b) The right of the Association to dedicate or transfer all or any part of the Common Area to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the Board. (c) The right of the Association, in accordance with the Articles and Bylaws, to borrow money for the purpose of improving the Common Area and, with the assent of two-thirds (2/3) of each class of Members, hypothecate any or all real or personal property owned by the Association. (d) The right of access, ingress and egress over the Common Area and the right of installation and use of utilities on the Common Area for the benefit of Lots. T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -4- c (e) The right of the Association to grant maintenance, access and utility easements over the Common Area to others and to convey portions of the Common Area to others. No dedication or transfer of all or substantially all of the assets of the Association shall be effective unless approved by the Members in accordance with the California CORPORATIONS CODE. (f) The right of the Association to adopt rules and regulations relating to the use of the Common Area and the governance of the Project. (g) The right of the Association to grant exclusive use easements to Owners over, under, upon and across portions of the Common Area and Common Maintenance Area and/or adjust boundaries between one or more of the Lots and the Common Area or Common Maintenance Area. However, (i) no such easement or boundary adjustment shall interfere with or violate any open space easement or other restrictive easement dedicated to the City and (ii) the areas to be so adjusted or made subject to use easements shall in the Board's opinion not be materially adverse to another Owner. (h) Subject to a concomitant obligation to restore, Declarant and its sales agents, employees and independent contractors shall have: (i) A non-exclusive easement over the Common Area for the purpose of making repairs to the Common Area or the residences on the Lots it owns, provided access is not otherwise reasonably available, and for the purpose of constructing, marketing and maintaining Phase 1 and the Annexable Property, including the construction of residences and related improvements; and (ii) The other rights and easements (including those of Declarant) set forth in this Declaration. Section 2.2. City Easement. The City shall have an easement over the Common Area and any Common Maintenance Area for maintenance purposes which may be exercised upon the failure of the Association to maintain the Common Area or any Common Maintenance Area in accordance with the conditions of approval of the Final Maps, pursuant to Section 9.5 of this Declaration. Section 2.3. Delegation of Use. Any Owner may delegate his rights of enjoyment to the Common Area and facilities to persons who reside on the Owner's Lot. Section 2.4. Conveyance of Common Area. Conveyance of the Common Area and Common Maintenance Area to the Association shall be made subject to all covenants, conditions, restrictions, reservations, dedications, easements and other items of the record. For example, but not by way of limitation, the Final Maps may state certain irrevocable offers to dedicate portions of the Common Area (e.g. trails) which the City would have the right to accept at sometime in the future. Section 2.5. Use of Recreational Vehicle Storage Area. In order for the owner and successive owners of the Annexable Property to comply with the requirements of City of T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -5- Carlsbad Municipal Code Section 21.45.090(k) ("RV Parking Requirements"), as interpreted by the City, from and after transfer to the Association of a recreational vehicle parking area in the Common Area, the Association shall make RV storage spaces available to the residences within the Annexable Property regardless of whether such property is annexed to this Declaration. The RV storage spaces shall be made available to such residents on a first come, first served basis, the same terms and conditions as the spaces will be made available to the residents of each Phase which has been made subject to this Declaration. This Section shall not have application to the extent any portion of the Annexable Property which is not annexed hereto exceeds the density approved by the City, by City Council Resolution No. 98-417, for such portion of the Annexable Property. It is specifically understood that with respect to CARLSBAD TRACT 90-03 SHELLEY PROPERTY UNIT NO. 1, the Association's obligation to make RV storage spaces available pursuant to this Section shall be limited to twenty-six (26) lots. This Section shall not be amended prior to annexation of all the Annexable Property without the written consent of the owners of the portions of the Annexation Property not so annexed. ARTICLE III MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION Section 3.1. Membership. Every Owner of a Lot which is subject to assessment by the Association shall be a Member of the Association. Membership is appurtenant to and may not be separated from ownership of a Lot. Section 3.2. Voting Rights. The Association shall have two (2) classes of voting membership: Class A. Class A Members shall be all Owners, with the exception of Declarant, and shall be entitled to one (1) vote for each Lot owned. When more than one (1) person holds an interest in any Lot, all such persons shall be Members. The vote for the Lot shall be exercised as the Owners among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Lot. Class B. Class B Member(s) shall be Declarant and shall be entitled to three (3) votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on the happening of the earlier of the following to occur: (i) Two (2) years following the first conveyance of a Lot pursuant to the most recently issued original Final Subdivision Public Report for a Phase; or (ii) Four (4) years following the date of the first conveyance of a Lot pursuant to the original Final Subdivision Public Report for Phase 1. Voting rights shall not commence with respect to a Lot until the Association's regular assessments have commenced against the Lot. T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -6- ARTICLE IV COVENANT FOR MAINTENANCE ASSESSMENTS TO ASSOCIATION Section 4.1. Creation of Lien and Personal Obligation for Assessments. Declarant, for each Lot owned, covenants, and each Owner of a Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant to pay to the Association: (a) regular assessments or charges which shall include an adequate reserve fund for the periodic maintenance, repair and replacement of the Common Area and Common Maintenance Area; and (b) special assessments. The regular and special assessments, together with interest, late charges, costs and reasonable attorney's fees, shall (except as otherwise provided in Section 4.4 below) be a charge on the land and shall be a continuing lien upon the Lot against which each such assessment is made. The lien shall be effective upon recordation of a notice of delinquent assessment. Each assessment, together with interest, late charges, costs and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of the Lot at the time the assessment is due. Section 4.2. Purpose of Assessments. (a) Generally. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of the Project, for the improvement and maintenance of the Common Area and Common Maintenance Area, and to reimburse the Association for the costs incurred in bringing an Owner into compliance with the Articles, Bylaws, Declaration and rules and regulations adopted by the Board. The regular assessment is the assessment determined annually by the Board to meet the expenses of the Association, including the establishment of reserve accounts, for the next fiscal year based upon the annual budget adopted by the Board pursuant to the Bylaws. A special assessment is an assessment the Board, in its discretion, determines necessary if the Association's available funds are or will become inadequate to meet the estimated expenses of the Association for the fiscal year. The Board may levy the entire special assessment immediately or levy it in installments over a period the Board determines appropriate. In addition, a special assessment against a particular Owner only may be levied by the Board as set forth in Section 4.6 of the Declaration. The Board shall provide notice by first-class mail to each Owner of any increase in the regular assessment or of any special assessment not fewer than thirty (30) days nor more than sixty (60) days prior to the increased assessment or special assessment becoming due. (b) Possible Suspension of Reserves. Reserves for certain items may be suspended for a limited period pursuant to a maintenance or subsidy agreement between Declarant and the Association, the terms of which have been approved by the California Department of Real Estate. (c) Cost Center Assessments. Cost Center Assessments component of the regular assessments levied by the Association against the Lots within a Cost Center Area shall be used exclusively for the operational costs and reserves applicable to the Cost Center Amenities within the Cost Center Area. Cost Center Assessments may include, without limitation, estimated or actual costs and expenses incurred by the Association in connection with administrating the Cost Center Area, maintaining, repairing and replacing the Cost Center Area amenities, obtaining and T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -7- maintaining insurance coverage related to the Cost Center Area amenities, providing utility services to the Cost Center Area amenities and funding reasonable reserves for the repair or replacement of Cost Center Area amenities. (d) Cost Center Accounting. The Association shall provide for separate accounting for funds which are collected and expended on behalf of Cost Center Area. The Association shall also provide for the reserve study and the annual review and disclosure of the reserves applicable to a Cost Center Area. Section 4.3. Limitation on Regular and Special Assessments. The Board shall levy regular and special assessments sufficient to perform the obligations of the Association as provided in the Declaration and Bylaws; provided, however, except for assessment increases necessary for emergency situations: (a) The Board may not increase the regular assessments for any fiscal year unless the Board has complied with the provisions of California CIVIL CODE §1365(a) with respect to the fiscal year, and (b) The Board may not impose a regular assessment that is more than twenty percent (20%) greater than the regular assessment for the Association's preceding fiscal year nor special assessments which in the aggregate exceed five percent (5%) of the budgeted gross expense of the Association for the fiscal year, without the approval of Owners casting a majority of the votes at a meeting or election of the Association conducted in accordance with Chapter 5 (commencing with §7510) of Part 3 of Division 2 of Title 1 of the California CORPORATIONS CODE and §7613 of the California CORPORATIONS CODE at which a quorum was present or participated. For purposes of this Section 4.3, "quorum" means more than fifty percent (50%) of the Owners. An emergency situation is any one of the following: (1) An extraordinary expense required by an order of a court. (2) An extraordinary expense necessary to repair or maintain the Project or any part of the Project for which the Association is responsible where a threat to personal safety in the Project is discovered. (3) An extraordinary expense necessary to repair or maintain the Project or any part of the Project for which the Association is responsible that could not have been reasonably foreseen by the Board in preparing and distributing the pro forma operating budget under CIVIL CODE §1365. However, prior to the imposition or collec- tion of an assessment under this Subsection, the Board shall pass a resolution containing written findings as to the necessity of the extraordinary expense involved and why the expense was not or could not have been reasonably foreseen in the budgeting process, and the resolution shall be distributed to the Members with the notice of assessment. "Regular assessment for the Association's preceding fiscal year" as used in this Section 4.3 is deemed to be the regular assessment which would have existed in the absence of any subsidy of assessments agreed to be paid by Declarant. Anything in this Section 4.3 to the contrary notwithstanding, the limitation on regular and special assessments shall comply with T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -8- c the laws of the State of California at the time the regular or special assessment is levied by the Association. Section 4.4 below, and not this Section 4.3, shall apply to increases in Cost Center Assessments. Section 4.4. Limitation on of Cost Center Assessments. The Board shall levy regular and special assessments sufficient to perform the obligations of the Association as provided in the Declaration and Bylaws with respect to any Cost Center; provided, however, except for assessment increases necessary for emergency situations: (a) The Board may not increase the Cost Center Assessments of a Cost Center for any fiscal year unless the Board has complied with the provisions of California CIVIL CODE §1365.5 (preparation and distribution of the budget applicable to the Cost Center), and (b) The Board may not impose a Cost Center Assessment that is more than twenty percent (20%) greater than the Cost Center Assessment for the Association's preceding fiscal year nor special Cost Center Assessments which in the aggregate exceed five percent (5%) of the budgeted gross expense of the Association for the fiscal year, without the approval of Owners within such Cost Center casting a majority of the votes at a meeting or election of the Association conducted in accordance with Chapter 5 (commencing with §7510) of Part 3 of Division 2 of Title 1 of the California CORPORATIONS CODE and §7613 of the California CORPORATIONS CODE at which a quorum of the Owners in the Cost Center was present or participated. For purposes of this Section 4.4, "quorum" means more than fifty percent (50%) of the Owners in the Cost Center. An emergency situation is any one of the following: (1) An extraordinary expense required by an order of a court. (2) An extraordinary expense necessary to repair or maintain the Cost Center Amenities or any part of the Cost Center Amenities for which the Association is responsible where a threat to personal safety in the Project is discovered. (3) An extraordinary expense necessary to repair or maintain the Cost Center Amenities or any part of the Cost Center Amenities for which the Association is responsible that could not have been reasonably foreseen by the Board in preparing and distributing the pro forma operating budget, applicable to the Cost Center, under CIVIL CODE §1365. However, prior to the imposition or collection of an assessment under this Subsection, the Board shall pass a resolution containing written findings as to the necessity of the extraordinary expense involved and why the expense was not or could not have been reasonably foreseen in the budgeting process, and the resolution shall be distributed to the Members with the notice of assessment. "Cost Center Assessment for the Association's preceding fiscal year" as used in this Section 4.4 is deemed to be the Cost Center Assessment which would have existed in the absence of any subsidy of assessments agreed to be paid by Declarant. Anything in this Section 4.4 to the contrary notwithstanding, the limitation on regular and special Cost Center Assess- ments shall comply with the laws of the State of California at the time the regular or special Cost Center Assessment is levied by the Association. T:\AJH\CH\ArroyoVista\CCRS-18Sept01.wpd -9- Section 4.5. Individual Special Assessments. The Association may also impose a special assessment against a Member to reimburse the Association for costs incurred in bringing a Member or the Member's Lot into compliance with the provisions of the Declaration, the Articles, the Bylaws and the Association rules and regulations, which assessment may be imposed upon the vote of the Board after notice and an opportunity for a hearing which satisfy the requirements of §7341 of the California CORPORATIONS CODE; provided, however, that except to the extent the special assessment is to reimburse the Association for the cost of collecting assessments, a special assessment levied pursuant to this Section 4.5 shall not constitute a lien on the Member's Lot. Section 4.6. Uniform Rate of Assessment. Both regular and special assessments (other than a special assessment levied against an Owner to bring the Owner or the Owner's Lot into compliance with the Declaration, Articles, Bylaws or rules and regulations of the Board) shall be fixed at a uniform rate for all Lots and may be collected on a quarterly, monthly or other periodic basis as determined by the Board. Both regular and special Cost Center Assessments shall be fixed at a uniform rate for all Lots within a Cost Center and may be collected on a quarterly, monthly or other periodic basis as determined by the Board. This Section does not apply to Model Homes which are subject to the Section below entitled "Model Homes". Section 4.7. Date of Commencement of Regular Assessments: Due Dates. Regular assessments shall commence as to all Lots in Phase 1 on the first day of the month following the first conveyance of a Lot in Phase 1 to an Owner other than Declarant. The regular assessments shall commence as to all Lots in a subsequent Phase on the first day of the month following the first conveyance of a Lot to an Owner other than Declarant in that Phase. The Board shall fix the amount of the regular assessment against each Lot at least thirty (30) days in advance of each regular assessment period. Written notice of the regular assessment shall be sent to every Owner. The due dates for payment of assessments shall be established by the Board. Section 4.8. Model Homes. Conveyance of a Lot which is being used by Declarant for model home, sales office, design center, construction office or similar purposes (any of which uses are referred to in this Section as "Model Home") shall not commence the regular assessments against such Lots or other Lots within the Phase until: (a) Discontinuance of use of such Lot as a Model Home; or (b) Conveyance of any non-Model Home Lot in the Phase, whichever first occurs. During the period of time commencing on the first day of the month after conveyance of a Lot being used by Declarant as a Model Home and ending on the date regular assessments commence against such Lot, Declarant shall be solely responsible to maintain all portions of the Phase in which a Lot is being used as Model Home. The Board shall have the right to inspect the areas being maintained by Declarant pursuant to this Section to determine that such maintenance meets reasonable standards. Section 4.9. Uncompleted Facilities. The Board may exclude from assessments that portion which is for the purpose of defraying expenses and reserves directly attributable to the existence of a Common Area or Common Maintenance Area improvement that is not complete at the time the assessments commence. Any such exemption from assessments T:\AJH\CH\Arroyo Vista\CCRS-1 BSeptOI .wpd -10- attributable to an Association maintained facility shall be in effect only until the earliest of the following events: (a) The improvement has been completed as evidenced by the recordation of a Notice of Completion; or (b) The improvement has been installed and placed into use. Section 4.10. Effect of Non-Pavment of Assessments: Remedies of Association. Any assessment made in accordance with the Declaration shall be a debt of the Owner of a Lot at the time the assessment is due. Any assessment not paid within thirty (30) days after the due date shall bear interest from thirty (30) days following the due date at the rate of twelve percent (12%) per annum. The Association may bring an action at law against the Owner personally obligated to pay the assessment and, in addition thereto or in lieu thereof, may foreclose the lien against the Lot. Before the Association may place a lien upon a Lot to collect a debt which is past due, the Association shall notify the Owner in writing by certified mail of the fee and penalty procedures of the Association, provide an itemized statement of the charges owed by the Owner, including items on the statement which indicate the principal owed, any late charges and the method of calculation, any attorney's fees and the collection practices used by the Association, including the right of the Association to the reasonable costs of collection. Any payments toward such a debt shall be first applied to the principal owed, and only after the principal owed is paid in full shall such payments be applied to interest or collection expenses. Any assessment not paid within fifteen (15) days after the due date shall be delinquent. Except as otherwise provided in Section 4.5 above, the amount of any delinquent assessment plus costs of collection, late charges, penalties, interest and attorney's fees, shall be and become a lien upon the Lot when the Association causes to be recorded with the County Recorder of San Diego County, California, a Notice of Delinquent Assessment. The Notice of Delinquent Assessment shall state the amount of the delinquent assessment and the other charges as may be authorized by the Declaration, a description of the Lot against which the assessment has been made, the name of the record owner of the Lot and, in order for the lien to be foreclosed by non-judicial foreclosure, the name and address of the trustee authorized by the Association to enforce the lien by sale. The Notice of Delinquent Assess- ment shall be signed by the person designated by the Association for that purpose or, if no one is designated, by the President of the Association, and mailed in the manner set forth in CIVIL CODE §2924b to all record owners of the Owner's interest in the Project no later than ten (10) calendar days after recordation of the Notice of Delinquent Assessment. Upon payment of the delinquent assessment and charges in connection with which the Notice of Delinquent Assessment has been recorded, or other satisfaction thereof, the Association shall cause to be recorded a further notice stating the satisfaction and the release of the assessment lien. The assessment lien may be enforced by sale by the Association after failure of the Owner to pay the assessment and expiration of thirty (30) days following the recording of a lien created pursuant to this Section. The sale shall be conducted in accordance with the provisions of §2924, §2924b and §2924c of the California CIVIL CODE applicable to the exercise of powers of sale in mortgages or in any other manner permitted by law. The Association shall have the power to purchase the Lot at the foreclosure sale and to hold, T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -11- lease, mortgage and convey the Lot. Suit to recover a money judgment for unpaid assess- ments, rent and attorney's fees shall be maintainable without foreclosing or waiving the lien securing the assessment. Section 4.11. Subordination of the Lien to First Mortgages. The assessment lien shall be subordinate to the lien of any first Mortgage, and the sale or transfer of any Lot pursuant to judicial or non-judicial foreclosure of a first Mortgage shall extinguish the lien of the assessment as to payments which became due prior to the sale or transfer. No sale or transfer shall relieve the Lot from lien rights for any assessments thereafter becoming due. When the Mortgagee of a first Mortgage or other purchaser of a Lot obtains title to the Lot as a result of foreclosure, the acquirer of title, his successors and assigns, shall not be liable for the share of the common expenses or assessments by the Association chargeable to the Lot which was due prior to the acquisition of title to the Lot by such acquirer, except for a share of the charges or assessments resulting from a re-allocation of the charges or assessments which are made against all Lots. Section 4.12. Estoppel Certificate. The Association shall furnish or cause an appro- priate officer to furnish, upon demand by any person, a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments on a Lot is binding upon the Association as of the date of its issuance. Section 4.13. Personal Liability of Owner. No Member may exempt himself or herself from personal liability for assessments levied by the Association, nor release the Lot owned by the Owner from the liens and charges for assessments by waiver of the use and enjoyment of the Common Area or by abandonment of the Owner's Lot. Section 4.14. Exempt Property. All properties dedicated to and accepted by a local public authority, and all properties owned by a charitable nonprofit organization exempt from taxation by the laws of the State of California, shall be exempt from assessment by the Association. However, no land or improvements devoted to dwelling use shall be exempt from assessments by the Association. Section 4.15. Assessments Levied Bv City. In the event the City performs main- tenance of the Common Area or Common Maintenance Area as provided in Section 9.5, the City shall submit a written invoice to the Association for all costs incurred by the City to perform such maintenance. The City shall provide a copy of such invoice to each Owner, together with a statement that if the Association fails to pay such invoice in full within the time specified, the City will pursue collection against the Owners pursuant to the provisions of this Section and Section 9.5 below. The invoice shall be due and payable by the Association within twenty (20) days of receipt by the Association. If the Association fails to pay such invoice in full within the period specified, payment shall be deemed delinquent and shall be subject to a late charge in an amount equal to six percent (6%) of the amount of the invoice. Thereafter, the City may pursue collection from the Association by means of any remedies available in law or in equity. Without limiting the generality of the foregoing, in addition to all other rights and remedies available to the City, the City may levy a special assessment against the Owners of each Lot in the project for an equal pro-rata share of the invoice, plus the late charge. Such special assessment shall constitute a charge and continuing lien on the Lots so assessed. Each Owner in the project hereby vests the City with the right and power to levy such special assessment, to impose a lien upon their respective Lot and to bring all T:\AJH\CH\Arroyo V(sta\CCRS-18Sept01.wpd -12- legal actions and/or pursue lien foreclosure procedures against any Owner and his or her respective Lot for purposes of collecting such special assessment in accordance with the procedures set forth in this Article. Section 4.16. Schedule of Monetary Penalties. If the Association adopts a policy of imposing any monetary penalty, including any fee, on any Owner for violation of this Declaration or the rules of the Association, including any monetary penalty relating to the activities of a guest or invitee of an Owner, the Board shall adopt and distribute to each Owner, by personal delivery or first-class mail, a schedule of the monetary penalties that may be assessed for those violations, which shall be in accordance with the authorization for Owner discipline set forth in this Declaration and the Bylaws. The Board shall not be required to distribute any additional schedules of monetary penalties unless there are changes from the schedule that was adopted and distributed to the Owners pursuant to this Section. Section 4.17. Assessment Amounts May Differ From Budget. The Association's phased budget may show that the budgeted regular assessment amounts change as assessments commence against additional Phases within the Project during the period in which the Project is being developed and marketed. However, the Board shall have the right to reasonably vary the regular assessment amounts from the budgeted assessment amounts. It is anticipated that the Board may decide to not change or to delay the changes in the regular assessment amounts as assessments commence against subsequent Phases in order to avoid the confusion and administrative burden which would result from multiple changes in the regular assessment amounts. In doing so, the Board may decide to adopt "level assessments" which will be the same assessment amount for several Phases regardless of the fact that the budgeted assessments might be greater or lesser in amount than the level assessment. ARTICLE V GOVERNMENTAL REGULATIONS Section 5.1. Project Is Subject to Regulations. The Project and its use are subject to the jurisdiction of the City, and the ordinances, regulations and permits issued by the City, including the conditions to approval of the tentative tract map for the Final Maps and any City approved site development plans applicable to the Project. Among other requirements, the Project is subject to the City's brush management program and the City's Development Standards. Each Owner shall at all times comply with each governmental ordinance, regulation, restriction or permit which is applicable to such Owner's Lot. Section 5.2. City Not Responsible to Enforce. As stated in this Declaration, the City has the right to enforce certain provisions of this Declaration. However, it is expressly understood that the City has no obligation to enforce the provisions of these covenants and restrictions. ARTICLE VI ARCHITECTURAL CONTROL Section 6.1. Architectural Committee. No improvements or exterior changes to any improvements shall be made to any Lot (including, but not limited to, construction, installation T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -13- or alteration of any building or landscaping) until the plans and specifications therefor showing the nature, design, kind, shape, height, width, color, materials and location have been submitted to and approved in writing by a committee of not less than three (3) nor more than five (5) persons ("Committee") unless the Committee has categorically exempted the particular improvements from its review. All members of the Committee may be appointed and replaced by Declarant until one (1) year following issuance by the California Department of Real Estate of the original Final Subdivision Public Report for Phase 1. Thereafter, a majority of the members of the Committee may be appointed and replaced by Declarant and a minority of the members of the Committee may be appointed or replaced by the Board until one hundred and ninety-six (196) Lots (being ninety percent (90%) of the Lots planned for Phase 1 and the Annexable Property other than CT 90-3 Unit 1) have been conveyed of record to Retail Purchasers or until five (5) years following issuance by the California Department of Real Estate of the original Final Subdivision Public Report for Phase 1, whichever shall first occur. Thereafter, all members of the Committee may be appointed or replaced by the Board. Committee members need not be Members of the Association. Persons submitting proposals or plans and specifications to the Committee (each person is referred to as the "Applicant") must obtain a dated, written receipt for such plans and specifications and furnish the Commit- tee with the address to which communications from the Committee to the Applicant are to be directed. Section 6.2. Committee Approval. The Committee shall approve proposals or plans and specifications submitted for its approval only if it deems that the construction, alteration, addition or other construction activity contemplated thereby in the locations indicated will not be detrimental to the appearance of the Project and surrounding real property as a whole, and that the appearance of any structure or other improvement will be in harmony with the surrounding structures and improvements. However, the Committee shall have the right from time to time to categorically exempt certain types of improvements from review by the Committee. Improvements to back yards are hereby declared to be categorically exempt from review by the Committee unless the Committee decides at a later date to extend its jurisdiction to back yard improvements. The Committee will not have jurisdiction to require removal of any improvements which were exempt from Committee approval when installed. However, the Committee does have jurisdiction to approve or disapprove any changes to such improvements or to require landscaping to be trimmed and/or thinned. Section 6.3. Other Approvals. In addition to Committee approval, improvements to a Lot may require a building permit or other approval from the City and/or the California Coastal Commission. Section 6.4. Approved Conditions. The Committee may condition its approval of proposals or plans and specifications on such changes thereto as it deems appropriate, and may require submission of additional plans and specifications or other information prior to approving or disapproving material submitted. The Committee may adopt, amend or supple- ment the architectural guidelines (i) concerning design and materials standards, rules and guidelines for construction activities; (ii) setting forth procedures for the submission of plans for approval; (iii) requiring a reasonable fee ("Review Fee") payable to the Committee for any costs involved to accompany each application for approval; and (iv) specifying additional factors which it will take into consideration in reviewing submissions. The Committee may require such detail in plans and specifications submitted for its review as it deems proper, including, without limitation, floor plans, site plans, drainage plans, elevation drawings and description or samples of plantings, exterior materials and colors. Until receipt by the T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -14- Committee of all plans, specifications or other materials deemed necessary by the Committee, the Committee may postpone review of any plans submitted for approval. Section 6.5. Notification. Decisions of the Committee and the reasons for decisions shall be transmitted by the Committee to the Applicant at the address set forth in the application for approval within forty-five (45) days after receipt by the Committee of all materials required by the Committee. Any application submitted pursuant to this Article VI shall be deemed approved, unless the Committee's written disapproval or a request for additional information or materials is transmitted to the Applicant within forty-five (45) days after the date of receipt by the Committee of all required materials. Section 6.6. Waiver. The approval of the Committee of any proposals or plans and specifications or drawings for any work done or proposed or in connection with any other matter requiring the approval and consent of the Committee shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, drawings or matters whatever subsequently or additionally submitted for approval or consent. Section 6.7. No Liability. Neither the Committee, nor any members of the Committee, nor their duly authorized representatives, shall be liable to any Applicant or Lot Owner for any loss, damage or injury arising out of or in any way connected with the perfor- mance of the Committee's duties, unless due to the willful misconduct of the Committee. Section 6.8. Design Criteria. The Committee shall review and approve or disapprove all plans submitted to it for any proposed improvement, alteration, addition or other construction activity on the basis of satisfaction of the Committee with the grading plan, location of the improvements on the Lot, the finished ground elevation, the color scheme, finish, design, proportions, architecture, shape, height, style, appropriateness of proposed improvements, affect on adjoining Lots, the materials to be used, the kinds, pitch or type of roof proposed, the planting, landscaping, size, height or location of vegetation on a Lot, and on the basis of aesthetic considerations and the overall benefit or detriment to the Project and surrounding real property generally which would result from such improvement, alteration, addition or other construction activity. Although the Committee shall take into consideration the aesthetic aspects of the architectural designs, placement of buildings, landscaping, color, schemes, exterior finishes and materials, and similar features, it shall not be responsible for reviewing, nor shall its approval of any plans or design be deemed approval of, any plan or design from the standpoint of adequacy of drainage, structural safety, view impacts or conformance with building or other codes. The Committee approval of any particular construction activity shall expire and the plans and specifications therefor shall be resubmitted for Committee approval if substantial work pursuant to the approved plans and specifications is not commenced within six (6) months after the Committee's approval of such construction activity. All construction activities shall be performed as promptly and as diligently as possible and shall be completed within such reasonable period of time specified by the Committee. Section 6.9. Variances. The Committee may authorize variances from compliance with any of the architectural provisions of this Article VI, including, without limitation, restric- tions on height, size, floor area or placement of structures, or similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or environmental considerations may require. Such variances must be in writing, and must be signed and acknowledged by at least a majority of the members of the Committee. The granting of a T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -15- variance shall not operate to waive any of the terms and provisions of this Article VI for any purpose except as to the particular property and particular provision covered by the variance, nor shall it affect in any way the Owner's obligation to comply with all laws and regulations of any governmental authority affecting the use of his Lot, including, but not limited to, zoning and building requirements of any governmental agency or entity having jurisdiction over the Lot. Section 6.10. Committee Guidelines. The Committee shall adopt rules for the conduct of its affairs and design guidelines for construction activities. The architectural guidelines of the Committee may provide for the pre-approval of certain specified types or categories of construction activities, provided that such pre-approved construction activities are implemented by the affected Owner in conformance with the standards for design, materials and other criteria established in the architectural guidelines for such pre-approved construction activities. The Committee may from time to time adopt, supplement or amend architectural guidelines to establish, expand, limit or otherwise modify the categories and criteria for any pre-approved construction activities. Section 6.11. Consultants. The Committee shall have the right to obtain the recommendations of consultants and rely on such recommendations in making its decisions pursuant to this Article. Section 6.12. Declarant Exemption. This Article VI shall not apply to, and the Committee shall have no authority or responsibility to review or approve any, improvements made by Declarant on any Lot or to the Common Area or Common Maintenance Area. ARTICLE VII USE RESTRICTIONS Section 7.1. In General. Each Lot shall be held, used and enjoyed subject to the following limitations and restrictions, but also subject to the exemptions of Declarant set forth in this Declaration. Section 7.2. Residential Use. No Lot shall be used except for residential purposes; provided, however, Declarant shall have the right to use any Lots owned or leased by it for model homes, sales offices and similar uses until all Lots have been sold by Declarant. Nothing stated in this Section shall disallow a Lot from being used for such home businesses as may be allowed by applicable City zoning controls, permits and regulations provided that such uses are otherwise in compliance with the provisions of this Declaration. Section 7.3. New Building Only. No building of any kind shall be moved from any other place onto any Lot, nor from one Lot to another Lot, without the prior written permission of the Board or the Committee. Section 7.4. Balconies. Decks and Fences. No balcony or deck shall be higher above the finished grade of the Lot than the highest dwelling floor level, except with the written approval of the Board or the Committee. No balcony or deck shall at any time be used for storage purposes and each shall at all times be kept in a neat and clean appearance and in good repair. No fence or wall or combination of a fence and wall (other than safety railings T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -16- c o required by the City of Carlsbad or other governmental agencies) shall be higher than six (6) feet above ground where the fence or wall is to be placed. Section 7.5. No Second-Hand Materials. Painting Required. No secondhand materials shall be used in the construction of any building or other structure on any Lot without the prior written approval of the Board or the Committee. All buildings and fences which are of frame construction shall be painted or stained upon completion with the paint or stain coverage (including the number of coats) as provided in the approval of the plans therefor by the Board or the Committee. Section 7.6. Solar Panels. Antennae. Satellite Dishes. Rooftop panels installed for the collection of solar energy for domestic hot water shall be permitted on roofs at locations that maximize the southerly exposure for the collection of solar energy. Solar panels installed to serve recreational pools and spas shall be permitted but shall not be located on any section of the roof surface or Lot viewable from a public or private street, unless location elsewhere would significantly increase the cost of the system or significantly decrease its efficiency. There shall be no outside television or radio antennae, masts, satellite dishes, transmitter tower or facility, poles or flag poles (other than poles or flag poles installed and maintained by Declarant in connection with its sales program for the period set forth in the Section below entitled "Limitation of Restrictions on Declarant") constructed, installed or maintained in the Project for any purpose whatsoever without approval of the Committee, which approval may be subject to conditions imposed by the Committee. The Committee shall not impose any requirement which would violate Part 1 of Title 47 of the Code of Federal Regulations or other applicable laws or regulations. Nothing herein stated shall be deemed to forbid the installation and use of temporary power or telephone services or other improvements if incident to the construction of improvements. Section 7.7. Diligence in Construction Required. The work of constructing and erecting any building or other structure shall be prosecuted diligently from the commencement thereof, and the same shall be completed within a reasonable time in accordance with the requirements herein contained. No outbuilding shall be completed prior to the completion of the dwelling, except that temporary storage and convenience facilities may be erected for workmen engaged in building a dwelling on the Lot, but such temporary facilities shall be removed as soon as the dwelling is completed. Section 7.8. Drying Yards. No outside drying of clothes shall be permitted unless screened by fence, hedge or shrubbery, which screening and the adequacy thereof shall be subject to the approval of the Board or the Committee. Section 7.9. No Time-Share Projects. No Lot shall be divided into a time-share estate or time-share use as defined in California BUSINESS AND PROFESSIONS CODE Section 11003.5. Section 7.10. Signs. No sign, poster, billboard, advertising device or other display of any kind shall be displayed to the public view except (i) such signs as may be used by Declarant in connection with the development of the Project and the sale or leasing of Lots T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -17- "W and (ii) one sign on each Lot advertising the Lot for sale or lease provided the sign is of customary and reasonable dimensions. Section 7.11. Animals. No animals, including, but not limited to horses, farm animals, fowls, reptiles, insects or poultry shall be kept by any person on any Lot, except for not more than an aggregate of three (3) household pets (e.g., domestic dogs, cats and birds) if they do not, in the opinion of the Board, constitute a nuisance to any other Owner. Any dispute as to whether a particular pet constitutes a nuisance shall be arbitrated before the Board and the Board's determination shall be binding and conclusive. No animals shall be kept, bred or raised within the Project by any person for commercial purposes. All animals permitted herein to be kept shall be kept on a leash within the Project when not within an enclosed area of a Lot. Each Owner shall be responsible for the removal of the waste from his or her pet. Section 7.12. No Commercial Activity; No Nuisance. Except as otherwise provided in this Declaration, no commercial business shall be conducted on any of the Lots, and nothing shall be done upon any Lot which may become an annoyance or nuisance to the neighborhood or other Lot Owners. Nothing herein stated shall disallow installation of a burglar alarm system. Any Owner who has an alarm system installed shall use reasonable care to prevent false alarm occurrences. Section 7.13. Drainage. No Owner of a Lot shall in any way interfere with the established drainage pattern over his or her Lot from adjoining or other Lots, unless adequate provisions have been made for proper drainage. "Established drainage" is defined as the drainage which existed at the time the final grading of the Lot was originally completed. "Established drainage" refers to both surface drainage and subsurface drainage, if any. Any Owner who changes the drainage of his or her Lot shall be responsible for any damages which might result to the property of such Owner, the property of the Association or to the property of any third party. Each Owner will permit free access by other Owners of adjacent or adjoining Lots to slopes or drainageways located on his or her Lot which affect said adjacent or adjoining Lots, when such access is essential for the maintenance of permanent stabilization of slopes or maintenance of the drainage system or facilities for the protection and use of property other than the Lot on which the slope or drainageway is located. Section 7.14. Surface and Subsurface Drainage Systems. Surface or subsurface drainage systems that serve more than one Lot ("Drainage Systems") may be installed within some of the Lots. The approximate location of each Drainage System may be shown on a separately recorded document ("Drainage Declaration"). A Drainage Declaration may be included within a Notice of Declaration of Annexation or may be a separately recorded document. If recorded, each Drainage Declaration would generally: (i) describe the type of Drainage System (e.g., subsurface or brow ditch), (ii) include a plat which shows the approximate location of the Drainage System, (iii) describe the specific Lots within that Drainage System, (iv) incorporate by reference the provisions of this Article, and (v) be signed by Declarant and the owner of such Lots (if any such Lots are not owned by Declarant). (a) Reciprocal non-exclusive easements, appurtenant to each Lot covered by a Drainage System, are hereby created, granted and reserved over, under, upon T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -18- c o and across each other Lot covered by the same Drainage System(s) to drain water through the Drainage System(s), and the Owner of each such Lot shall have the right and easement to drain water through the Drainage System(s) which apply(ies) to his or her Lot. The location of such easement shall be in the actual location of the Drainage System as installed. (b) The Owner of each Lot covered by a Drainage System shall keep that portion of the Drainage System which is located on his or her Lot in good repair and working condition and free from obstructions and shall not interfere with the proper operation of the same. However, nothing herein stated is intended to disallow Declarant from designating certain Drainage Systems as being subject to Association maintenance. In no event shall any pool drain or spa drain be connected to any subsurface Drainage System. Section 7.15. Slope Control. Use and Maintenance. Each Lot Owner will keep, maintain, water, plant and replant all slope banks located on such Owner's Lot (unless such slopes are located within the Common Maintenance Area, so as to prevent erosion and to create an attractive appearance. No structure, planting or other material shall be placed or permitted to remain or other activities undertaken on any slope banks which may damage or interfere with established slope ratios, create erosion or sliding problems, or which may change the direction of flow of drainage channels or established drainage patterns and systems, or obstruct or retard the flow of water through drainage channels or established drainage patterns and systems. Section 7.16. No Hazardous Activities. No activities shall be conducted on any portion of the Project and no improvements shall be constructed on any Lot which are or might be unsafe or hazardous to any person or property. Reasonable and customary construction activities by Declarant or any Owner shall not be deemed to constitute hazardous activities. Section 7.17. Unsightly Articles. No unsightly articles shall be permitted to remain on any Lot so as to be visible from any other portion of the Project. Without limiting the gener- ality of the foregoing, all refuse, garbage and trash shall be kept from public view at all times. Trash for pick up shall be placed in covered, sanitary containers of good condition and such container shall be placed in public view no earlier than the evening before pick up and shall be removed from public view on the day of pick up. No clotheslines shall be installed on any Lot in such a manner as to be within public view. No clothing or household fabrics shall be hung, dried or aired on any Lot, and no lumber, grass, shrub or tree clipping or plant waste, metals, bulk materials or scrap or refuse or trash shall be kept, stored or allowed to accumulate on any Lot, except within an enclosed structure or otherwise appropriately screened from public view. Section 7.18. No Temporary Structures. No tent, shack or other temporary building, improvement or structure shall be placed upon any portion of the Project except with the approval of the Committee. This Section shall not apply to temporary structures which are reasonable and customary to facilitate construction activities on any Lot. Section 7.19. Garages; Parking Spaces; Vehicular Restrictions. Except for model homes and sales or leasing offices used by Declarant, no Owner shall convert his or her garage to any use which prevents its use for parking the number of vehicles used by the T:\AJH\CHWroyo Vista\CCRS-18Sep«01 .wpd -19- Owner, unless the garage conversion was performed by Declarant or was approved by the Committee. No dismantled or wrecked vehicle or equipment shall be parked, stored or deposited in the Project within public view and no vehicle shall be repaired in the Project within public view. No noisy or smoky vehicles or off-road unlicensed vehicles shall be oper- ated within the Project. Section 7.20. Parking In Driveways or Private Streets. Parking shall be allowed in a driveway of a Lot only if at least one other vehicle is parked in a garage located on the Lot. The Board shall have the right to restrict or limit parking on the private streets. Section 7.21. No Recreational Vehicles. No boat, camper, trailer, motorhome or other type of recreational vehicle shall be parked on any Lot, private street or other portion of the Project for more than seventy-two (72) consecutive hours. Section 7.22. Weeds. Rubbish. Sanitary Containers. Etc. No weeds, rubbish, debris, objects or material of any kind shall be placed or permitted to accumulate upon any Lot which render such portion unsanitary, unsightly, offensive or detrimental to any other Lot in the vicinity thereof or its occupants. Trash, garbage, rubbish and other waste shall be kept only in sanitary containers. Section 7.23. Plants. No plants or seeds infected with noxious insects or plant disease shall be brought upon, grown or maintained upon any Lot. Section 7.24. Landscaping. All landscaping of every kind and character, including shrubs, trees, grass and other plantings, within any Lot shall be neatly trimmed, properly cultivated and continuously maintained by the Owner thereof in a neat and orderly condition and in a manner to enhance its appearance. The Committee shall have the right to require any Owner to remove, trim, top or prune or treat any shrub, tree, bush, plant or hedge which the Committee reasonably believes unreasonably impedes the view of any other Lot Owner or which the Committee believes constitutes a hazard to traffic or pedestrians on streets or sidewalks. No Owner shall remove, damage, trim or otherwise change any landscaping within the Common Maintenance Area without the Committee's permission. Section 7.25. Grading. No Lot shall be re-graded by any Owner in any manner which increases water runoff on any other Lot, and no such grading shall be permitted without approval by the City of Carlsbad. Section 7.26. Owners Responsible for Damage. Should any Owner or such Owner's employees, agents or contractors cause any damage to sidewalks, curbs or other City property or rights of way, such Owner shall immediately and fully repair such damage at the Owner's expense. In the event such damage is repaired by the City or Declarant, the Owner shall immediately reimburse such party for the full costs of repair. Section 7.27. Construction and Sales Activities. The development, construction, marketing and sales activities of each Declarant are exempt from the covenants, restrictions and limitations set forth in this Article. None of the covenants, restrictions and limitations set forth in this Article or elsewhere in this Declaration shall be applied to the development, T:\AJH\CH\Arroyo Vista\CCRS-18Sept01.wpd -20- construction, marketing or sales activities of Declarant or construed in such a manner as to prevent or limit development, construction, marketing or sales activities by Declarant. Section 7.28. Owners May Not Change Common Area or Common Maintenance Area. No Owner shall have any right whatsoever to make any change or improvement to the Common Area or Common Maintenance Area and no Owner shall cause any damage to the Common Area or Common Maintenance Area. Each Owner shall be liable to the Association and the other Owners for any damage to any of the Common Area or Common Maintenance Area that may be sustained by reason of the negligence of that Owner, that Owner's family members, contract purchasers, tenants, guests, or invitees. Section 7.29. Water and Sewer Systems. No individual water supply system, water softener system or sewage disposal system shall be permitted on any Lot unless the system is designed, located, constructed and equipped in accordance with the requirements, stan- dards and recommendations of any applicable water district, the City and any applicable governmental health authority having jurisdiction. Section 7.30. Sight Distance Corridors. The Owner of each affected Lot shall at all times comply with any sight distance corridor requirements which may required by the City. No structure, fence, wall, tree, shrub, sign or other object over thirty inches (30") above the street level may be placed or permitted to encroach within the area identified as a sight distance corridor in accordance with Section 8.B.3 of the City Standard Public Street-Design Criteria. The Owner of each affected Lot shall at all times comply with these requirements. Section 7.31. Open Space Easements. Each Owner shall at all times comply with any open space easements which restrict development or use of the areas covered by any such easement or restriction. Section 7.32. Post-Tensioned Slabs. The residences on some or all of the Lots may have been constructed with post-tensioned concrete slabs ("System"). The System involves placing steel cables under high tension in the concrete slab located beneath the residence. Each Owner shall be responsible for determining whether the residence on his Lot has been constructed with a System. Any attempt by an Owner or other person to alter or pierce the foundation (e.g., saw cutting or drilling) could damage the integrity of the System and/or cause serious injury or damage to persons and property. No Owner shall cut into or otherwise disturb the System upon which the residence on his Lot is constructed. The Owner of each Lot on which the residence has been constructed with a System agrees that neither Declarant nor any contractor of Declarant shall be responsible for any damage or injury resulting from or arising in connection with the alteration or piercing by the Owner or any employee, agent, family member, representative or other person of the slab or the foundation of the residence on the Lot. Each Owner shall hold Declarant harmless from and indemnify Declarant against all claims, demands, losses, costs (including attorney's fees), obligations and liabilities arising out of or in connection with the failure of the Owner to comply with the provisions of this Section 7.30. Section 7.33. Reduction of Surface Pollutants. The Association shall coordinate the programs established by the City from time to time to assist Owners with the removal and proper disposal of toxic and hazardous waste products. Toxic chemicals or hydrocarbon compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood preservatives and other such fluids shall not be discharged into any street or drive, public or T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd "21 - private, or into any storm drain or storm water conveyance systems. Use and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers and other such chemical treatments must, as prescribed in their respective containers, meet Federal, State, County and City requirements. Best Management Practices (as referenced in the "California Storm Water Best Management Practices Handbook") shall be used to eliminate or reduce surface pollutants when planning any changes to the landscaping and surface improvements. Section 7.34. Outdoor Lighting. Outdoor lighting on a Lot shall be shaded and adjusted so the light falls only on the Lot on which the lighting is located and does not fall or reflect on other Lots. ARTICLE VIII INSURANCE AND CONDEMNATION Section 8.1. Insurance. (a) The Association shall procure and keep in force general liability insur- ance in the name of the Association insuring against any liability for personal injury or property damage resulting from any occurrence in or about the Common Area or Common Maintenance Area in an amount not less than $3 Million per occurrence. (b) The Association shall procure and keep in insurance, in an amount not less than $1 Million per occurrence, covering the individual liability of officers and directors of the Association for negligent acts or omissions of those persons acting in their capacity as officers and directors. (c) The Association shall maintain a fidelity bond in an amount equal to the amount of funds held by the Association during the term of the bond but not less than one-fourth (1/4) of the regular assessments, plus reserves, naming the Association as obligee and insuring against loss by reason of the acts of the Board, officers and employees of the Association, and any management agent and its employees, whether or not such persons are compensated for their services. (d) Copies of all insurance policies (or certificates) showing the premiums to have been paid shall be retained by the Association and open for inspection by Owners at any reasonable time(s). All insurance policies shall (i) provide that they shall not be cancelable by the insurer without first giving at least ten (10) days' prior notice in writing to the Association, and (ii) contain a waiver of subrogation by the insurer(s) against the Association, Board and Owners. (e) Anything contained herein to the contrary notwithstanding, the Association shall maintain such insurance coverage as may be required by the Federal National Mortgage Association ("FNMA") or the Federal Home Loan Mortgage Corporation ("FHLMC") so long as FNMA or FHLMC, respectively, holds a mortgage on or owns any Lot. (f) Section 1365.7 of the California CIVIL CODE provides for a partial limitation on the liability of volunteer officers and directors of the Association, provided that certain requirements, as set forth in the CODE section, are satisfied. The T:\AJH\CHWroyo Vista\CCRS-1 BSeptOI .wpd -22- requirements include that general liability insurance and officers' and directors' liability insurance be carried by the Association in specified amounts. The Association shall maintain general liability insurance and officers' and directors' liability insurance in amounts which satisfy the requirements of the CODE to limit the liability of volunteer officers and directors of the Association. (g) In the event any insurance policy deductible amount relating to an Owner's property loss is charged to the Association, the Owner shall reimburse the Association upon written demand for the amount charged to the Association. Section 8.2. Condemnation. In the event the Common Area or any portion thereof shall be taken for public purposes by condemnation as a result of any action or proceeding in eminent domain, or shall be transferred in lieu of condemnation to any authority entitled to exercise the power of eminent domain, then the award or consideration for such taking or transfer shall be paid to and belong to the Association. ARTICLE IX MAINTENANCE RESPONSIBILITIES: RESTRICTIONS ON REMOVAL OF NATIVE VEGETATION Section 9.1. Parties Responsible For Maintenance of Common Area. The following parties shall be responsible to maintain the Common Area and Common Maintenance Area: (a) Initially Declarant shall be solely responsible to maintain the Common Area and the Common Maintenance Area. (b) Unless the deed of conveyance or a maintenance agreement between Declarant and the Association states otherwise, the Association shall become obligated to maintain portions of the Common Area and Common Maintenance Area within a Phase upon the first close of escrow for the sale of a Lot within the Phase to a Retail Purchaser. The Common Area and Common Maintenance Area within a Phase shall refer to those portions of the Common Area and Common Maintenance Area which are identified as being within such Phase by the Notice of Declaration of Annexation or the deed of conveyance. (c) Unless a Notice of Declaration of Annexation or a maintenance agreement between Declarant and the Association states otherwise, the Association shall be obligated to maintain all the Common Maintenance Area within a Phase upon the first close of escrow for the sale of a Lot within the Phase to a Retail Purchaser. Declarant and the Association may enter into one or more maintenance agreements in form and content acceptable to the California Department of Real Estate whereby Common Area or Common Maintenance Area maintenance or the costs of maintenance of the Common Area is shared between Declarant and the Association for the term set forth in such agreement(s). It is not intended that the Association will be obligated to share in any such costs until conveyance of the first Lot within a Phase to a Retail Purchaser. Section 9.2. Association Maintenance. The Association shall maintain and provide for the maintenance of all Common Maintenance Area and Common Area in good repair and T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd "23- appearance as set forth in the Declaration and in accordance with any applicable requirements. (a) The Association shall keep and maintain the Common Area and the Common Maintenance Area, and all improvements thereon, in good condition and good appearance at all times. For example, and not by way of limitation, the Association shall be responsible to maintain any terrace drain which is located within Common Maintenance Area or Common Area. (b) The Association shall properly keep and maintain wetlands areas within the Common Area or Common Maintenance Area in accordance with all applicable requirements of the City and all other governmental agencies having jurisdiction. The Association shall not relinquish its obligation to maintain the Common Area or Common Maintenance Area without the prior consent of the Planning Commission or City Council of the City. Section 9.3. Owner Maintenance. Each Owner shall keep and maintain in good repair and appearance all portions of his or her Lot and improvements thereon (except for any portion the maintenance of which is the responsibility of the Association or the City). (a) The improvements to be so maintained by each Owner include, but are not limited to, all portions of the residence, garage, the garage opener, lights on the residence, the landscaping and any fence or wall which is located on the Lot. (b) Each Owner shall be responsible to maintain the interior surface of any fence or wall which separates the Owner's Lot from another Lot and both adjoining Owners shall be responsible to share equitably in the costs to repair or replace any such fence or wall which separates their Lots. However, an Owner shall not be responsible for the costs to repair or replace a fence which is damaged by the other Owner. (c) Each Owner of a Lot shall water, weed, maintain and care for the landscaping located on his or her Lot (other than any portion which is within the Common Area or Common Maintenance Area or which might be maintained by the City or an assessment district) so that the same presents a neat and attractive appearance. No Owner shall interfere with or damage the Common Area or Common Maintenance Area or improve or alter the Common Area or Common Maintenance Area or interfere with or impede Declarant, the Association or a public maintenance assessment district in connection with the maintenance of the Common Area or Common Maintenance Area. (d) Each Owner shall be responsible to maintain any terrace which is located on such Owner's Lot unless the same lies within Common Maintenance Area. Section 9.4. Association's Right to Repair Neglected Lots. In the event that any Owner shall in the Board's opinion permit any property which is the responsibility of such Owner to maintain to fall into a dangerous, unsafe, unsightly or unattractive condition as deter- mined by the Board, then the Board shall have the right to demand that such condition be remedied. Should the condition not be remedied within fifteen (15) days, the Board shall have T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -24- the right, but not the obligation, to correct the condition, and to enter upon the portion of the Project which has fallen into such condition for the purpose of doing so. The Owner shall promptly reimburse the Association for the cost of such corrective action, including, but not limited to, the Association's court costs and reasonable attorney's fees should the Board determine it is in its best interests to obtain a court order allowing such entrance by the Board's representatives. No entry inside a residence may be made without the consent of the Owner. Section 9.5. City's Rights If Association Fails To Maintain. In the event the Association fails to maintain all or any portion of the Common Area or Common Maintenance Area in accordance with this Article, the City shall have the right, but not the duty, to perform the necessary maintenance. If the City elects to perform such maintenance, the City shall give written notice to the Association, with a copy thereof to the Owners, setting forth with particularity the maintenance which the City finds to be required and requesting the same to be carried out by the Association within a period of thirty (30) days from the giving of such notice. In the event the Association fails to carry out such maintenance within the period specified by the City's notice, the City shall be entitled to cause such work to be completed and shall be entitled to reimbursement with respect thereto from the Owners as provided in Section 4.14 above. ARTICLE X ANNEXATION Section 10.1. By Association. Additional residential property, Common Area and Common Maintenance Area may be annexed to the Project and to the Declaration upon the vote or written assent of two-thirds (2/3) of the voting power of Members of the Association, excluding the vote of Declarant. Upon approval by Members of the Association, the owner of the property wishing it to be annexed may file of record a Notice of Declaration of Annexation which shall extend the provisions of this Declaration to the property being annexed. Section 10.2. By Declarant. Additional land within the Annexable Property may be annexed to the Project as Lots, Common Area and Common Maintenance Area and to the jurisdiction of the Association by Declarant. Annexation shall be made by a Notice of Declaration of Annexation executed by Declarant and the owner of the land being annexed. The Notice of Declaration of Annexation may be revoked or amended at any time before the first close of sale of a Lot in the annexed property and may contain additional or different restrictions applicable to the annexed property. The obligation of Lot Owners to pay dues to the Association and the right of such Lot Owners to exercise voting rights in the Association in such annexed property shall not commence until the first day of the month following close of the first sale of a Lot by Declarant in that particular Phase of development. Any Phase may be deannexed by Declarant signing and recording with the County Recorder of San Diego County a Notice of Deannexation which describes the land to be de- annexed provided that no Lot within the Phase has been conveyed to an Owner (other than between Declarants or to a successive Declarant). T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -25- ARTICLE XI RIGHTS OF LENDERS Section 11.1. Payments of Taxes or Premiums by First Mortgagees. First Mortgagees may, jointly or severally, pay taxes or other charges which are in default and which may or have become a charge against the Common Area, unless the taxes or charges are separately assessed against the Owners, in which case, the rights of first Mortgagees shall be governed by the provisions of their Mortgages. First Mortgagees may, jointly or severally, also pay overdue premiums on casualty insurance policies, or secure new casualty insurance coverage on the lapse of a policy for the Common Area; first Mortgagees making such payments shall be owed immediate reimbursement from the Association. Entitlement to reimbursement shall be reflected in an agreement in favor of any first Mortgagee who requests the same to be executed by the Association. Section 11.2. Priority of Lien of Mortgage. No breach of the covenants, conditions or restrictions in the Declaration shall affect, impair, defeat or render invalid the lien or charge of any first Mortgage made in good faith and for value encumbering any Lot, but all of the covenants, conditions and restrictions shall be binding upon and effective against any Owner whose title to a Lot is derived through foreclosure or trustee's sale, or otherwise. Section 11.3. Curing Defaults. A first Mortgagee who acquires title by judicial foreclosure, deed in lieu of foreclosure or trustee's sale shall not be obligated to cure any breach of the provisions of this Declaration which is non-curable or of a type which is not practical or feasible to cure. The determination of the Board made in good faith as to whether a breach is non-curable or not feasible to cure shall be final and binding on Mortgagees. Section 11.4. Approval of First Mortgagees. Except as provided by statute in case of condemnation or substantial loss to the Lots or Common Area, unless the Mortgagees of first Mortgages encumbering sixty-seven percent (67%) or more of the Lots which are subject to a Mortgage or Owners representing sixty-seven percent (67%) of the voting power of the Association (excluding the vote of Declarant) have given their prior written approval, the Association shall not: (a) By act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Area. The granting of easements for public utilities or for other public purposes shall not be deemed a transfer within the meaning of this Subsection. (b) Change the method of determining the obligations, assessments, dues or other charges which may be levied against an Owner. (c) By act or omission, change, waive or abandon any scheme of regula- tions, or enforcement thereof, pertaining to the architectural design or exterior appearance of residences, the exterior maintenance of residences, the maintenance of Common Area walks or common fences and driveways, or the upkeep of lawns and plantings in the Project. T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -26- (d) Fail to maintain fire and extended coverage insurance on the Common Area on a current replacement cost basis in an amount not less than one hundred percent (100%) of the insurable value, based on current replacement cost. (e) Use hazard insurance proceeds for losses to any portion of the Com- mon Area for other than the repair, replacement or reconstruction of the Common Area. Section 11.5. Restoration of Common Area. Any restoration or repair of the Common Area after partial condemnation or damage due to an insurable event, shall be performed substantially in accordance with the Declaration and original plans and specifications unless other action is approved by holders of first Mortgages on Lots which have at least fifty-one percent (51%) of the votes of Lots subject to Mortgage holders. Section 11.6. Professional Management. When professional management has been previously required by a first Mortgage holder, a decision to establish self-management by the Association shall require the consent of at least sixty-seven percent (67%) of the voting power of Members of the Association and the approval of holders of first Mortgages on Lots the Owners of which have at least fifty-one percent (51%) of the votes of Lots encumbered by Mortgages. Section 11.7. Notice to Mortgagees. Upon written request to the Association identifying the name and address of the holder and the Lot number or address, any first Mortgage holder will be entitled to timely written notice of: (a) Any condemnation loss or any casualty loss which affects a material portion of the Project or any Lot on which there is a first Mortgage held by the Mortgage holder. (b) Any delinquency in the payment of assessments or charges owed by an Owner subject to a first Mortgage held by the Mortgage holder which remains uncured for a period of sixty (60) days. (c) Any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association. (d) Any proposed action which would require the consent of a specified percentage of Mortgage holders. Section 11.8. Documents to be Available. The Association shall make available to Owners and Mortgagees, and holders, insurers or guarantors of any first Mortgage, current copies of the Declaration, the Bylaws, other rules concerning the Project and the books, records and financial statements of the Association. "Available" means available for inspection, upon request, during normal business hours or under other reasonable circumstances. The holders of first Mortgages encumbering fifty-one percent (51 %) or more of the Lots subject to a Mortgage shall be entitled to have an audited statement for the immediately preceding fiscal year prepared at their expense if one is not otherwise available. Any financial statement so requested shall be furnished within a reasonable time following the request. In the event the fifty (50) or more Lots have been made subject to this Declaration, then the Association shall make available to the holder, insurer or guarantor of T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd "27- any first Mortgage, an audited financial statement on submission of a written request for the same. The audited statement must be made available within one hundred and twenty (120) days of the Association's fiscal year-end. In the event fewer than fifty (50) Lots have been made subject to this Declara- tion, then a first Mortgagee shall be entitled to have an audited financial statement provided the same is prepared at the Mortgagee's expense. Section 11.9. Conflicts. In the event of any conflict between any of the provisions of this Article and any of the other provisions of the Declaration, the provisions of this Article shall control. ARTICLE XII CONSTRUCTION DEFECT DISPUTES Section 12.1. Definitions. The following words will have the following meanings for purposes of this Article: (a) "Construction Defect Dispute" shall mean and refer to any dispute between an Owner and Declarant or between the Association and Declarant which dispute relates to the use or condition of the Project or any improvements to the Project regarding boundaries, surveys, soils conditions, grading, design, specifications, construction, installation of improvements or disputes which allege breach of implied or express warranties as to the condition of the Project or any Lot, residence (or other improvement), Common Area or Common Maintenance Area. (b) "Construction Party" refers to Declarant or any director, officer, partner, employee, subcontractor or agent of Declarant. (c) "Claimant" refers to any party (including any Owner or the Association) who intends to make a claim for Construction Defect against a Construction Party. Section 12.2. Dispute Notification and Resolution Procedure. Any Construction Defect Dispute shall be subject to the following provisions: (a) Notice. Any Claimant with a claim against a Construction Party shall notify the Construction Party in writing of the claim, which writing shall describe the nature of the claim and the proposed remedy (the "Claim Notice"). (b) Right to Inspect and Right to Corrective Action. Within a reasonable period after receipt of the Claim Notice, which period shall not exceed sixty (60) days, each Construction Party and the Claimant shall meet at a mutually-acceptable place within the Project to discuss the claim. At such meeting or at such other mutually-agreeable time, each Construction Party and its/their representatives shall have full access to the property that is subject to the claim for the purposes of inspecting the same. The parties shall negotiate in good faith in an attempt to resolve the claim. If a Construction Party elects to take any corrective action, the Construction Party and its representatives and agents shall T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -28- c o be provided full access to the property subject to the claim to take and complete corrective action. (c) Civil Code Sections 1368.4 and 1375. Nothing contained herein shall be deemed a waiver or limitation of the provisions of California CIVIL CODE Section 1368.4. If the claim is subject to the provisions of CIVIL CODE Section 1375 as it may be amended from time to time, compliance with the procedures of CIVIL CODE Sections 1375 (b), (d) and (e) shall satisfy the requirements of Sections 12.2 (a) and 12.2 (b) above. (d) Mediation. If the parties cannot resolve the claim pursuant to the procedures described in subsection (b) above, (including, if applicable, CIVIL CODE Section 1375 procedures) the matter shall be submitted to mediation pursuant to the mediation procedures adopted by the American Arbitration Association or any successor thereto or to any other entity offering mediation services that is acceptable to the parties. No person shall serve as a mediator in any dispute in which the person has any financial or personal interest in the result of the mediation, except by the written consent of all parties. Prior to accepting any appointment, the prospective mediator shall disclose any circumstances likely to create a presumption of bias or to prevent a prompt commencement of the mediation process. (i) Within ten (10) days of the selection of the mediator, each party shall submit a brief memorandum setting forth its position with regard to the issues that need to be resolved. The mediator shall have the right to schedule a pre-mediation conference and all parties shall attend unless otherwise agreed. The mediation shall be commenced within ten (10) days following the submittal of the memoranda and shall be concluded within fifteen (15) days from the commencement of the mediation unless the parties mutually agree to extend the mediation period. The mediation shall be held in the county in which the Project are located or such other place as is mutually acceptable to the parties. (ii) The mediator has discretion to conduct the mediation in the manner in which the mediator believes is most appropriate for reaching a settlement of the dispute. The mediator is authorized to conduct joint and separate meetings with the parties and to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the dispute, provided the parties agree and assume the expenses of obtaining such advice. The mediator does not have the authority to impose a settlement on the parties. (iii) Prior to the commencement of the mediation session, the mediator and all parties to the mediation shall execute an agreement pursuant to California EVIDENCE CODE §1152.5(e) or successor statute in order to exclude the use of any testimony or evidence produced at the mediation in any subsequent dispute resolution forum, including, but not limited to, court proceedings, reference proceedings or arbitration hearings. Pursuant to California EVIDENCE CODE §1152.5(a), the agreement shall specifically state that evidence of anything said or of any admission made in the course of the mediation is not admissible evidence, and disclosure of any such evidence shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. Unless the document provides otherwise, no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or copy thereof, is admissible in evidence; T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -29- and disclosure of any such document shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. (iv) Persons other than the parties, the representatives and the mediator may attend mediation sessions only with the permission of the parties and the consent of the mediator. Confidential information disclosed to a mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the mediator. All records, reports, or other documents received by the mediator while serving in such capacity shall be confidential. There shall be no stenographic record of the mediation process. (v) The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including required traveling and other expenses of the mediator, and the expenses of any witnesses, or the cost of any proofs or expert advice produced at the direct request of the mediator, shall be borne equally by the parties unless they agree otherwise. Each Claimant covenants that each shall forbear from commencing any litigation against the Construction Party without complying with the procedures described in this Section. Section 12.3. Judicial Reference of Certain Disputes. Any Construction Defect Dispute against a Construction Party shall be submitted to general judicial reference pursuant to California CODE OF CIVIL PROCEDURE Sections 638(1) and 641 -645 or any successor statutes thereto. The following provisions apply to any such judicial reference: (a) The parties waive their right to a jury trial. (b) The parties shall share equally in the fees and costs of the referee, unless the referee orders otherwise. The parties shall bear their own attorneys' fees. (c) The general referee shall have the authority to try all issues, whether of fact or law, and to report a statement of decision to the court. The parties shall use the procedures adopted by Judicial Arbitration and Mediation Services ("JAMS") for judicial reference (or any other entity offering judicial reference dispute resolution procedures as may be mutually acceptable to the parties), provided that the following rules and procedures shall apply in all cases unless the parties agree otherwise: (i) The proceedings shall be heard in San Diego County; (ii) The referee must be a retired judge or a licensed attorney with substantial experience in relevant matters; (iii) Any dispute regarding the selection of the referee shall be resolved by JAMS or the entity providing the reference services, or, if no entity is involved, by the court with appropriate jurisdiction; (iv) The referee may require one or more pre-hearing conferences; (v) The parties shall be entitled to conduct all discovery as otherwise provided in the California CODE OF CIVIL PROCEDURE, and the referee shall oversee T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -30- discovery and may enforce all discovery orders in the same manner as any trial court judge; (vi) A stenographic record of the trial shall be made, provided that the record shall remain confidential except as may be necessary for post-hearing motions and any appeals; (vii) The referee's statement of decision shall contain findings of fact and conclusions of law to the extent applicable; and (viii) The referee shall have the authority to rule on all post-hearing motions in the same manner as a trial judge. (d) The statement of decision of the referee upon all of the issues considered by the referee is binding upon the parties, and upon filing of the statement of decision with the clerk of the court, or with the judge where there is no clerk, judgment may be entered thereon. The decision of the referee will stand as the decision of the Court and any decision of the referee may be excepted to and reviewed in like manner as if made by the Court. This provision shall in no way be construed to limit any valid cause of action which may be brought by any of the parties. (e) The parties to the Construction Defect Dispute shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the judicial reference proceeding. Neither the Claimant nor the Construction Party (individually, "Party" or collectively, the "Parties"), shall be required to participate in the judicial reference proceeding if (i) all parties against whom the applicable Party would have cross-claims or counterclaims necessary to afford complete relief to such Party cannot be joined in the judicial reference proceeding, including, but not limited to, any other Construction Party (collectively, a "Necessary Party"), or (ii) the enforcement of the provisions of this Section 12.3 would impair the insurance coverage of a Party or a Construction Party for any claim arising out of the Construction Defect Dispute that would otherwise provide coverage for such claim. If a Party determines that it cannot join all Necessary Parties or that its insurance coverage would be impaired with respect to the Construction Defect Dispute, or if Declarant is advised by a Construction Party that it contends its insurance coverage will be impaired by enforcement of this Section 12.3, such Party may elect not to participate. Prior to commencement of any action under this procedure, the Claimant(s) will allow Declarant a reasonable time in which to determine if the parties described in subsection (i) above can be joined in the judicial reference proceeding. If a Party so elects not to participate in the judicial reference proceeding, such Party will provide notice to the other Parties to the judicial reference proceeding that the Construction Defect Dispute will not be resolved by judicial reference. In such circumstances, the other Parties may seek determination of the Party's right not to participate by way of a motion under California Code of Civil Procedure Sections 638, 641 through 645.1, or any successor statutes thereto. If a determination is made as a result of such a motion that a Party is not required to participate in the judicial reference proceeding, the Construction Defect Dispute shall not be resolved by judicial reference and the Claimant(s) may commence an action with respect to the subject Construction Defect Dispute in an appropriate court of law. Section 12.4. Judicial Reference In Purchase Agreements. The limitation of this Article to certain controversies, claims or disputes shall not be deemed to supersede any written agreement T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -31- *"">. (e.g., purchase agreement) between Declarant and a Claimant which may provide for the judicial reference of additional controversies, claims or disputes. Section 12.5. No Amendment Without Declarant's Consent No amendment may be made to this Article without the written consent of Declarant. ARTICLE XIII GENERAL PROVISIONS Section 13.1. Enforcement. The Association, Declarant and any Owner shall have the right to enforce by any proceedings at law or in equity, all covenants, conditions, restrictions and reservations imposed by the provisions of the Declaration and rules and regulations adopted pursuant to this Declaration. Each Owner shall have a right of action against the Association for any failure of the Association to comply with the provisions of the Declaration or of the Bylaws or Articles. Failure by the Association, Declarant or any Owner to enforce any covenant, condition, restriction or reservation in the Declaration shall not be deemed a waiver of the right to do so thereafter. The City shall have the right, but not the obligation, to enforce the provisions of the Declaration and for such purposes shall be deemed a party hereto. In the event the City files a legal action to enforce the provisions of the Declaration and it is the prevailing party in the litigation, it shall be entitled to recover costs of suit and attorney's fees incurred in the litigation. Section 13.2. Severability. Should any provision in the Declaration be void or become invalid or unenforceable in law or equity by judgment or court order, the remaining provisions shall be and remain in full force and effect. Section 13.3. Amendments. Except as may otherwise be stated in the Declaration, during the period of time prior to conversion of the Class B membership in the Association to Class A membership, this Declaration may be amended at any time and from time to time by the vote or written consent of sixty-seven percent (67%) of the voting power of each class of Members of the Association, any which amendment shall become effective upon recording with the Office of the County Recorder of San Diego County, California. After conversion of the Class B membership in the Association to Class A membership, the Declaration may be amended at any time and from time to time by the vote or written consent of (a) sixty-seven percent (67%)of the total voting power of the Association, and (b) at least sixty-seven percent (67%) of the voting power of Members of the Association other than Declarant. Anything herein stated to the contrary notwithstanding, no material amendment may be made to this Declaration without the prior written consent of Mortgagees of first Mortgages encumbering fifty-one percent (51 %) or more of the Lots within the Project which are subject to a Mortgage. "Material amendment" shall mean, for purposes of this Section 13.3, any amendments to provisions of this Declaration which would be likely to diminish the value of a Lot or reduce or eliminate any lender's right set forth in this Declaration. An amendment to the Declaration shall not be considered material if it is for the purpose of correcting technical errors or for clarification or for making a change which is of no practical significance. A first Mortgagee who receives a written request delivered by certified or registered mail, return receipt requested, to approve amendments who does not deliver or mail to the requesting party a negative response within thirty (30) days, shall be deemed to have approved such request. T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -32- Notwithstanding the above provisions, (i) the percentage of the voting power necessary to amend a specific clause or provision in the Declaration shall not be less than the percentage of affirmative votes necessary for action to be taken under that clause or provision; and (ii) any amendment to this Declaration shall require the consent of the City Attorney of the City if such amendment would reduce or eliminate the standards of maintenance and repair of Lots, Common Area or Common Maintenance Area or reduce or eliminate any right of the City set forth in this Declaration. The percentage of membership votes or written consents required to amend the Declaration may be reduced under certain circumstances by Court Order obtained pursuant to California CIVIL CODE §1356. In addition to the other applicable requirements for amendment set forth in this Article, there shall be no amendment to any provisions of this Declaration or set forth in an Notice of Declaration of Annexation which pertain to a Cost Center Amenity, Cost Center Area or Cost Center Assessment, without the approval of a majority of the voting power of the Owners who are subject to the Cost Center Assessments. In addition, no amendment to or revocation of the provisions of Sections 2.2, 4.10 (to the extent of the City's lien rights thereunder), 4.15, 5.2, 9.2 or 9.5 shall be made without the prior written consent of the City. A copy of any amendment proposed to any such Section shall be provided to the City in advance and the City shall have the right to approve or disapprove the proposed amendment. A copy of the finally approved amendment shall be transmitted to the City within thirty (30) days after recording. Section 13.4. Extension of Declaration. Each and all of the covenants, conditions and restrictions shall run with and bind the Project for a term of thirty (30) years from the date the Declaration is recorded, after which date they shall automatically be extended for successive periods of ten (10) years, unless the Owners of two-thirds (2/3) of the Lots subject to the Declaration have executed and recorded at any time within six (6) months prior to the end of the thirty (30) year period, or within six (6) months prior to the end of any such ten (10) year period, in the manner required for a conveyance of real property, a written instrument in which it is agreed that the restrictions shall terminate at the end of the thirty (30) year period or at the end of any ten (10) year period. Section 13.5. Encroachment Easements. The following easements are hereby reserved by Declarant, subject to all items of record, including, but not limited to, the general utility easements of record: (a) It is intended that, unless Declarant decides to relocate the same, each fence or wall installed by Declarant with the intention of separating Lots from one another, or separating a Lot from Common Area, or separating a Lot from Common Maintenance Area shall establish the usable boundaries between the affected Lots, the Lots and Common Area and the Lots and Common Maintenance Area, respectively, regardless of whether the fence or wall lies exactly on the boundary line. An easement is hereby reserved for each such fence or wall to be repaired and replaced by the party(ies) obligated to maintain the same, in the location where such fence or wall was so installed by Declarant. Declarant shall have the right, but not the obligation, to relocate any such fence or wall to the applicable boundary line during the period of time that Declarant has the right to annex Lots to this Declaration. T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -33- (b) In the event any improvement to a Lot encroaches upon the Common Area or Common Maintenance Area or any Common Area or Common Maintenance Area improvement encroaches upon any Lot as a result of the construction, reconstruction, repair, shifting, settlement or movement of any portion thereof, an easement for the encroachment and for its maintenance is hereby reserved for so long as the encroachment exists; provided, however, in no event shall an easement for encroachment be created in favor of an Owner or the Association if the encroachment occurred due to the willful misconduct of the Owner or the Association. In the event a structure on a Lot is partially or totally destroyed and then rebuilt or repaired, the minor encroachments over adjoining Common Area and Common Maintenance Area shall be permitted and there shall be easements for maintenance of the encroachments so long as they shall exist. "Improvement" as used in this subsection does not include a fence or wall (fences and walls are the subject of subsection (a) of this Section). (c) An easement is hereby reserved in favor of each Lot over adjoining Lots for the purpose of accommodating encroachments due to design, construction, engi- neering errors, errors in construction, settlement or shifting of the building, roof over- hangs, architectural or other appendants and drainage of water from roofs. There shall be easements for the maintenance of encroachments so long as they shall exist; provided, however, that no easement is created in favor of an Owner if the encroachment occurred due to the willful misconduct of the Owner. In the event a structure on any Lot is partially or totally destroyed and then rebuilt or repaired, the minor encroachments over adjoining Lots shall be permitted and there shall be easements for maintenance of encroachments so long as they shall exist. Section 13.6. Special Responsibilities of Association. In the event improvements to be installed by Declarant to the Common Area have not been completed prior to the issuance by the California Department of Real Estate of a Final Subdivision Public Report covering a Phase of the Project, and in the further event the Association is the obligee under a bond to secure the obligation of Declarant to complete the improvements, then if the improvements have not been completed and a Notice of Completion filed within sixty (60) days after the completion date specified in the Planned Construction Statement appended to the bond, the Board shall consider and vote upon the question of whether or not to bring action to enforce the obligations under the bond. If the Association has given an extension in writing for the completion of any improvement, then the Board shall consider and vote on the question if the improvements have not been completed and a Notice of Completion filed within thirty (30) days after the expiration of the extension period. In the event the Board determines not to take action to enforce the obligations secured by the bond, or does not vote on the question as above provided, then, in either event, upon petition signed by Members representing five percent (5%) or more of the voting power of the Association (excluding the voting power of Declarant), the Board shall call a special meeting of the Members of the Association to consider the question of overriding the decision of the Board or of requiring the Board to take action on the question of enforcing the obligations secured by the bond. The meeting of Members shall be held not less than thirty-five (35) days nor more than forty-five (45) days following receipt of the petition. At the meeting, a vote of a majority of the voting power of Members of the Association, excluding the vote of Declarant, to take action to enforce the obligations under the bond shall be deemed to be the decision of the Association, and the Board shall thereafter implement the decision by initiating and pursuing appropriate action in the name of the Association. T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -34- Section 13.7. Litigation. In the event of litigation arising out of or in connection with the Declaration, the prevailing party shall be entitled to receive costs of suit and such sum for attorney's fees as the Court deems reasonable. Section 13.8. Limitation of Restrictions on Declarant. Declarant is undertaking the work of construction of residential dwellings and incidental improvements upon Phase 1 and the Annexable Property. The completion of that work, and the sale, rental and other disposal of dwellings is essential to the establishment and welfare of Phase 1 and the Annexable Property as a residential community. In order that the work may be completed and Phase 1 and the Annexable Property be established as a fully occupied residential community as rapidly as possible, nothing in this Declaration shall be understood or construed to: (a) Prevent Declarant, its contractors or subcontractors from doing on the Common Area, Common Maintenance Area or any Lot whatever is reasonably necessary or advisable in connection with the completion of the work, including access over Phase 1 or the Annexable Property; or (b) Prevent Declarant or its representatives from erecting, constructing and maintaining on any part or parts of Phase 1 or the Annexable Property such structures as may be reasonable and necessary for the conduct of its business of completing the work and establishing Phase 1 and the Annexable Property as a residential community and transferring Phase 1 and the Annexable Property in parcels by sale, lease or other- wise; or (c) Prevent Declarant from conducting on any part of Phase 1 or the Annexable Property its business of completing the work and of establishing a plan of ownership and of transferring Phase 1 or the Annexable Property by sale, lease or otherwise; or (d) Prevent Declarant from maintaining such signs, poles or flags on any of Phase 1 or the Annexable Property as may be necessary for the sale, lease or disposition thereof; provided, however, that the maintenance of any sign, pole or flag shall not unreasonably interfere with the use by any Owner of his or her Lot or the Common Area. The rights of Declarant provided in Subsections (a) through (d) above may be exercised during the period of time commencing when the Lots are first sold or offered for sale to the public and ending when all the Lots are sold and conveyed by Declarant to separate Owners, or seven (7) years following the date of conveyance of the first Lot from Declarant to a Retail Purchaser, whichever shall first occur. So long as Declarant, its successors and assigns, owns one or more of the Lots described herein, Declarant, its successors and assigns, shall be subject to the provisions of this Declaration. Declarant, in exercising its rights under this Section shall not unreasonably interfere with the use of the Common Area by any Owner. Section 13.9. Easement to Inspect and Test. Declarant reserves easements to enter any Lot, including the interior of the residence and the yard, to inspect those areas and to conduct destructive testing referred to in California CIVIL CODE § 1375(d). However, Declarant shall notify the Owner of the Lot of at least three alternative dates and times when such T:\AJH\CHWroyo Vista\CCRS-1 BSeptOI .wpd -35- inspection can take place (the earliest of which shall not be less than ten (10) days after the notification is given) and Declarant shall give the Owner the opportunity to specify which date and time is acceptable to the Owner. Should the Owner not respond affirmatively with respect to one of the dates and times within five (5) days, then Declarant may decide which of the dates and times the inspection and testing shall take place and so notify the Owner. Alternatively, Declarant may seek a judicial order allowing such inspection and testing to take place. Declarant shall be entitled to its reasonably incurred attorney's fees and be deemed the "prevailing party" should such a court order be sought and obtained. Declarant shall be obligated to fully repair any damage caused by any such destructive testing. IN WITNESS WHEREOF, the undersigned, being Declarant herein, has executed this instrument as of the date first hereinabove written. CONTINENTAL RESIDENTIAL, INC., a California corporation, By_ Title By_ Title STATE OF ) ) ss. COUNTY OF ) On , 20 , before me, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature. T:VAJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd -36- EXHIBIT "A" All the Property CARLSBAD TRACT 90-03 SHELLEY PROPERTY UNIT NO. 1, according to Map thereof No. , filed with the County Recorder of San Diego County, California on , 200_. CARLSBAD TRACT 90-03 SHELLEY PROPERTY UNIT NO. 2, according to Map thereof No. , filed with the County Recorder of San Diego County, California on , 200_. CARLSBAD TRACT 90-03 SHELLEY PROPERTY UNIT NO. 3, according to Map thereof No. , filed with the County Recorder of San Diego County, California on , 200_. CARLSBAD TRACT 90-03 SHELLEY PROPERTY UNIT NO. 4, according to Map thereof No. , filed with the County Recorder of San Diego County, California on , 200_. T:\AJH\CHWroyo Vista\CCRS-18Sept01 .wpd EXHIBIT "B" Common Maintenance Area - Phase 1 [to be attached] T:\AJH\CH\Arroyo Vista\CCRS-18Sept01 .wpd "*"SUBDIVISION GUARANTEE Order No. 93066225 -uso Dated: January 26, 2001 at 7:30 A.M. Subdivision: CARLSBAD TRACT NO. 90-3 UNIT NO . Fee: $300.00 CHICAGO TITLE INSURANCE COMPANY a corporation, herein called the Company GUARANTEES The County of SAN DIEGO and any City within which said subdivision is located in a sum not exceeding $1,000.00 that, according to those public records which, under the recording laws, impart constructive notice of matters affecting the title to the land included within the exterior boundary shown on the map of the above referenced subdivision, the only parties having any record title interest in said land whose signatures are necessary, under the requirements of the Subdivision Map Act, on the certificates consenting to the recordation of said map and offering for dedication any streets, roads, avenues, and other easements offered for dedication by said map are as set forth in Schedule A. Issued by: CHICAGO TITLE INSURANCE COMPANY925 "B" STREET SAN DIEGO, CA 92101 PHONE NO. (619) 239-6081 FAX NO. (619) 544-6277 Patrick F. Stone President Secretary ' Order No: 93066225 - Dated: January 26, 21 at7:30 A.M. Subdivision: CARLSBAD TRACT^fo. 90-3 UNIT NO. 4 MapNo: CT 90-3 #4 Fax Number: (619)544-6292 SCHEDULE A The map hereinbefore referred to is a subdivision of: SEE ATTACHED DESCRIPTION The parties hereinbefore referred to are: OWNER: CONTINENTAL RESIDENTIAL, INC., A CALIFORNIA CORPORATION TRUST DEED HOLDERS: FIRST AMERICAN TITLE INSURANCE COMPANY, A CALIFORNIA CORPORATION AS TRUSTEE UNDER DEED OF TRUST RECORDED NOVEMBER 6, 2000 AS FILE NO. 2000-0601722, OFFICIAL RECORDS. EASEMENT HOLDERS: (1) THE SIGNATURE OF THE COUNTY OF SAN DIEGO, OWNER OF EASEMENTS AS DISCLOSED BY DEEDS RECORDED AUGUST 4, 1898 IN BOOK 272, PAGE 86 OF DEEDS AND DECEMBER 19, 1930 AS DOCUMENT NO. 60237 IN BOOK 1839, PAGE 356 OF DEEDS OF SAN DIEGO COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (A)(3)(A)(I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY. (2) THE SIGNATURE OF LEUCADIA COUNTY WATER DISTRICT, OWNER OF AN EASEMENT AS DISCLOSED BY DEED RECORDED OCTOBER 25, 2000 AS FILE NO. 2000-0575073 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (A)(3)(A)(I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY. (3) THE SIGNATURE OF OLIVENHAIN WATER DISTRICT, OWNER OF AN EASEMENT AS DISCLOSED SEE ATTACHED EXHIBIT SUBDIVA --12/22/88 Page i DESCRIPTION Order No. 93066225 UNIT NO. 4 BEING A PORTION OF LOTS 13 AND 14 OF THE SUBDIVISION OF RANCHO LAS ENCINITAS ACCORDING TO MAP THEREOF NO. 848, ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 14; THENCE ALONG THE NORTHERLY LINE OF SAID LOT 1. NORTH 87°38'50" EAST 661.34 FEET;TO AN ANGLE POINT IN THE NORTHERLY AND EASTERLY BOUNDARY OF THE LAND DESCRIBED IN DEED TO FRITZ WEIGAND AND WIFE, RECORDED APRIL 23, 1929 IN BOOK 1620, PAGE 213 OF DEEDS; THENCE ALONG SAID BOUNDARY 2. SOUTH 02°48'11" EAST 330.03 FEET; THENCE LEAVING SAID BOUNDARY 3. SOUTH 57°31'17" WEST 978.00 FEET; THENCE 4. SOUTH 80°25'52" WEST 925.00 FEET TO A POINT ON THE CENTERLINE OF RANCHO SANTA FE ROAD, ALSO KNOWN AS ROAD SURVEY NO. 454-A, SAID POINT LIES ON THE ARC OF A NON-TANGENT 1,000.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 57°44'23" WEST; THENCE ALONG THE ARC OF SAID CURVE AND CENTERLINE 5. NORTHWESTERLY 219.01 FEET THROUGH A CENTRAL ANGLE OF 12°32'54"; THENCE 6. NORTH 19°42'43" WEST 768.03 FEET TO THE NORTHERLY LINE OF SAID LOT 13; THENCE ALONG SAID NORTHERLY LINE 7. NORTH 87°29'39" EAST 1,416.42 FEET TO THE POINT OF BEGINNING. Policy No. Page i EXHIBIT BY DEED RECORDED OF OFFICIAL RECORDS OF SAN DIEGO COUNTY HAS BEEN OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (A)(3)(A)(I) OF GOVERNMENT CODE, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE GOVERNING BODY. EXHIBITS -12/22/88